COURT FILE NO.: CV-16-549586
RELEASED: 2020/11/13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Massimo Gargari v. Toronto Catholic District School Board
BEFORE: Master Graham
HEARD: October 14, 2020
COUNSEL: Jennifer Siemon for the plaintiff (moving party)
Baktash Waseil for the defendant
REASONS FOR DECISION
(Re: plaintiff’s motion to compel production of his grade 3 class register)
[1] The plaintiff Massimo Gargari claims damages from the defendant Toronto Catholic District School Board (“the Board”) arising from sexual, physical, psychological and/or emotional abuse suffered while a grade 3 student at St. Wilfrid’s Elementary School between September, 1983 and January, 1984. He alleges that the acts of abuse were committed by his grade 3 teacher and the school principal and that nearly all of the abuse committed by the teacher occurred in the classroom while the other students in the class were present. Gargari’s statement of claim (paras. 7, 8 and 25) contains the following allegations:
The abuse occurred between approximately September 1983 to January 1984 when Massimo was approximately eight (8) years old and was a student at St. Wilfrid. Garvin was Massimo's Grade 3 teacher. Garvin physically assaulted and psychologically and emotionally abused Massimo on a number of occasions on School Board property. Teggart was Massimo's principal. Teggart sexually and physically assaulted Massimo on one occasion on School Board property.
The psychological and/or emotional abuse by Garvin began in September at or near the beginning of the school year. Garvin spanked and hit her students with a metre stick in front of the class embarrassing and humiliating them on a regular basis. Massimo became terrified of Garvin. Every day he was afraid that he would be hit and humiliated by her.
The individual acts of abuse against Massimo, together with the environment of fear and anxiety to which Garvin and Teggart subjected Massimo and the further breach of fiduciary duty and/or non-delegable duty and/or negligence of the School Board, caused permanent and extensive injuries and losses to Massimo, some particulars of which are as follows: [particulars omitted; emphasis added throughout]
[2] In its statement of defence, the Board admits that Gargari was a student at the school in question between September, 1993 and January, 1994 and that his teacher and the school principal were the individuals identified, but denies all other allegations in the statement of claim. The Board specifically denies the alleged abuse (at para. 7):
- TCDSB denies the plaintiff was subjected to any abuse by Ms. Garvin or Mr. Teggart as described in paragraphs 7-11 of the Statement of Defence [sic – this should be “Statement of Claim”] or otherwise. TCDSB acknowledges that the Plaintiff could have been physically disciplined but states that any physical discipline was (a) lawful and (b) did not breach applicable standards of the day.
[3] At the examination for discovery of the Board’s representative Shawna Campbell, held December 13, 2017, Gargari’s counsel requested production of a copy of the class register containing the names of the students in the class taught by the teacher Ms. Garvin during the period of the alleged abuse. The Board’s counsel confirmed that the Board has the class register in its possession but took under advisement whether they would produce it. Gargari’s counsel subsequently requested a list of the names and last known contact information of the students in the class during the period from September, 1983 through January, 1984.
Motions before Master Muir
[4] On November 22, 2018, Gargari brought a motion before Master Muir for production of the class register and disclosure of the last known contact information for the students named in the register. The Board opposed the motion on the basis that the information was irrelevant, the order sought would place an undue burden on it, and it was prohibited from disclosing the information by the provisions of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56 (“MFIPPA”). In dismissing the motion, Master Muir stated (paras. 3 - 6 of his endorsement):
In my view, this motion is premature. The requested records appear to be covered by MFIPP. They are education records which appear to fall within the definition of “personal information” in section 2 of MFIPP. Section 14 of MFIPP sets out a procedure to be followed where a person seeks disclosure of the personal information relating to other persons. MFIPP provides an appeal process from any such determination. The plaintiff has not availed himself of this process. I do not know whether or not any such application would result in the release of the information to the plaintiff.
I appreciate that MFIPP contains provisions that allow for the release of personal information as part of litigation or pursuant to a court order. However, it is my view that the legislation when read as a whole requires that some resort should be made to the process under MFIPP before seeking a form of exemption pursuant to section 51 of the Act. I note that the cases relied on by the plaintiff are silent as to whether any such process was followed before resorting to court order. The parties did not provide the court with any authorities that deal with the question of whether a person must exhaust the procedures in the Act before seeking a court order for production. The plaintiff has not provided any explanation as to why he could not have followed the procedure in MFIPP.
Finally, I note that the information requested involves education records for individuals who were eight years old at the time. Some care must be taken to protect the privacy of these children.
The relief requested with respect to production of the student register is dismissed without prejudice to the plaintiff seeking that relief again after exhausting his remedies under MFIPP.
[5] The sections of MFIPPA cited or referred to by Master Muir are set out in the Appendix to these Reasons. Essentially, s. 2 of MFIPPA defines “personal information”, s. 14(1) provides that a “head” (in this case the designated head of the defendant Board) shall refuse to disclose personal information except in various limited circumstances, and s. 39(1) allows for an appeal of any decision of a “head” to the Information and Privacy Commissioner under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31. Section 51 of MFIPPA provides that the statute does not impose any limitation “on the information otherwise available by law to a party to litigation” and “does not affect the power of a court or tribunal to compel a witness to testify or compel the production of a document.”
[6] Essentially, Master Muir was of the view that before seeking a court order for production of the class register pursuant to the Rules of Civil Procedure, which is what is contemplated by s. 51 of MFIPPA, the plaintiff was required to pursue production of the record through the other channels set out in the Act.
[7] Subsequent to Master Muir’s first endorsement dismissing the motion, the following occurred:
December 4, 2018: Gargari’s counsel wrote to the Board’s designated head, Mr. Bryan Shannon, requesting disclosure of the class register and contact information for the students named in it.
December 21, 2018: Mr. Shannon released his decision refusing the request.
January 16, 2019: Gargari sought to bring a second motion before Master Muir.
January 23, 2019: The Board’s counsel responded that Master Muir’s original endorsement required Gargari to exhaust his appeal remedies.
January 23, 2019: Gargari’s counsel sought a review of Mr. Shannon’s decision by the Office of the Information and Privacy Commissioner (“OIPC”).
February 28 – March 22, 2019: OIPC initiated mediation with respect to Gargari’s appeal of Mr. Shannon’s decision. As the Board still refused to produce the class register, Gargari elected not to pursue mediation further and the appointed mediator closed the appeal file.
[8] On April 3, 2019, Gargari renewed his motion before Master Muir. In dismissing the motion for the second time, Master Muir endorsed:
“[On November 22, 2018] I dismissed the plaintiff’s production motion . . . without prejudice to the motion being brought again after the plaintiff had exhausted his remedies under MFIPP. The plaintiff has not done so. He has not exhausted his appeal rights under MFIPP. My order contemplated such steps as is obvious from the reference to the appeal procedure in paragraph 3 of my endorsement. The plaintiff did not appeal or move to set aside or vary my order. The motion is dismissed without prejudice to the plaintiff bringing this motion again after exhausting his appeal rights under MFIPP. . . .”
Gargari’s appeal under [MFIPPA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m56/latest/rso-1990-c-m56.html)
[9] Gargari then reactivated his appeal of the decision of the Board’s head Mr. Shannon to the Information and Privacy Commissioner under s. 39(1) of MFIPPA. On August 19, 2019, in accordance with the request of the OIPC Adjudicator, Gargari’s counsel delivered extensive written submissions. On February 6, 2020, the Adjudicator Jessica Kowalski rendered her decision upholding the Board’s decision denying Gargari access to the class register and dismissing Gargari’s appeal.
[10] As the motion before me is in no respect an appeal or review of the decisions of the Board’s head Bryan Shannon or the Adjudicator Jessica Kowalski, there is nothing to be gained by reviewing the reasons that they gave for denying Gargari access to the class register. However, Adjudicator Kowalski also addresses the possibility of access to documents through the litigation process, as opposed to under MFIPPA. For ease of reference, s. 51 of MFIPPA states:
51 (1) This Act does not impose any limitation on the information otherwise available by law to a party to litigation.
(2) This Act does not affect the power of a court or a tribunal to compel a witness to testify or compel the production of a document.
[11] In her Order, Adjudicator Kowalski comments on s. 51(1) of MFIPPA (at paras. 30-32):
30 Because access rights under MFIPPA are arguably more restrictive than discovery rights in litigation, section 51(1) operates to ensure that MFIPPA does not impose any limitations on the information otherwise available to litigants. Questions of whether or not access to information should be granted under MFIPPA are subject to specific exemptions and different considerations than questions of relevance in a matter in litigation. Section 51(1) does not limit a litigant’s discovery rights during litigation, so that a document that might be exempt under MFIPPA can still be producible in litigation. [emphasis added]
31 In my view, section 51(1), by its very enactment and by its language (information “otherwise available” to a party to litigation) specifically contemplates that discovery rights in litigation are separate from access rights under MFIPPA. It would, in my view, be too broad an interpretation of express authorization to find the MFIPPA authorizes this office to order disclosure of any information that might be producible in a civil litigation because a court may determine that it is relevant to the findings of fact or issues in that particular litigation. In my view, therefore, the Rules cannot be characterized as legislation that expressly authorizes the disclosure of the record at issue in this appeal for the purpose of the exception in section 14(1)(d).
32 I make no findings regarding whether the record is relevant to or producible in the appellant’s court action. However, for the reasons described above, I find that the exception in section 14(1)(d) of the Act does not apply in the circumstances. [emphasis added]
The current motion
[12] Gargari now renews the motions brought before Master Muir on November 22, 2018 and April 3, 2019 for production of the class register described above and for disclosure of the last known addresses for those named in it.
[13] Gargari relies on the following Rules of Civil Procedure:
30.02(1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.
(2) Every document relevant to any matter in issue in an action that is in the possession, control or power of a party to the action shall be produced for inspection if requested, as provided in rules 30.03 to 30.10, unless privilege is claimed in respect of the document.
31.06(2) A party may on examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action unless the court orders otherwise. [emphasis added throughout]
[14] Based on these rules, Gargari submits that the class register constitutes a list of “persons who might reasonably be expected to have knowledge of . . . occurrences in issue in the action”, specifically, the other students in the class who would have witnessed the conduct of the teacher described in paragraphs 7, 8 and 25 of the statement of claim. The class register is relevant under rules 30.02(1) and (2) as a document containing names of witnesses, and the names and last known contact information of those witnesses must be disclosed under rule 31.06(2). There is no suggestion that the information is privileged.
[15] The defendant Board opposes Gargari’s motion for the following reasons:
The Board is precluded by MFIPPA and the decision of Adjudicator Kowalski from providing the class register and the students’ contact information.
Gargari has not complied with Master Muir’s endorsements by exhausting his appeal remedies under MFIPPA because he must now seek judicial review of the decision of the OIPC Adjudicator from the Divisional Court.
The class register and the contact information for Gargari’s grade 3 classmates are not relevant to the issues in the action.
Production of the class register should be refused based on the privacy interests of the students named in it, particularly given that they were minors at the time.
If the class register were ordered produced, the effort required by the Board to provide last known contact information for the students named in it would place an unnecessary and disproportionate burden on the Board.
Issues on the motion
[16] Based on the parties’ positions, the issues on the motion are:
Is the Board precluded by MFIPPA and the decision of Adjudicator Kowalski from providing the class register and the students’ contact information?
Is Gargari precluded from bringing this motion by Master Muir’s order that he first exhaust his rights of appeal under the MFIPPA?
Considering the applicable Rules of Civil Procedure and case law, is Gargari entitled to production of the class register and disclosure of the identities and last known contact information of the students named in it?
Would an order for disclosure of the last known contact information for the students named in the class register impose a disproportionately heavy burden on the Board?
Analysis of the issues
Is the Board precluded by MFIPPA and the decision of Adjudicator Kowalski from providing the class register and the students’ contact information?
[17] The Board submits in both its factum (para. 53) and in oral argument that it is prohibited by MFIPPA and the decision of Adjudicator Kowalski from providing the information sought by Gargari; it is therefore obliged to oppose the motion.
[18] The plain meaning of ss. 51(1) and (2) of MFIPPA is that disclosure of a document through the procedures provided in the Act and disclosure of a document in a civil action governed by the Rules of Civil Procedure are two distinct and unrelated processes. Adjudicator Kowalski, on whose decision the Board relies, specifically recognized this when she stated (in para. 30 quoted above): “Section 51(1) does not limit a litigant’s discovery rights during litigation, so that a document that might be exempt under MFIPPA can still be producible in litigation.”
[19] The Adjudicator reiterated this point in paragraph 50 of her decision, stating: “I find that the board’s withholding of the record under MFIPPA does not prevent the appellant [i.e. the plaintiff Gargari] from pursuing remedies that might be available to him within the civil litigation process.”
[20] Adjudicator Kowalski, in rendering her appeal decision under MFIPPA, states not once but twice that Garagari’s rights of disclosure in the litigation exist completely separately from any ruling under MFIPPA. Accordingly, the fact that Mr. Shannon acting as the Board’s head, and Adjudicator Kowalski on behalf of the Information and Privacy Commissioner, declined to require disclosure of the class register does not in any way preclude this court’s independent consideration of whether that document, and the last known addresses of the students named in it, must be disclosed in Gargari’s litigation.
[21] The Board also submits that, owing to the denial of access to the class register under the MFIPPA proceedings, it was obliged to oppose this motion. This is incorrect. As stated, the issues to be addressed on Gargari’s motion are completely distinct from those on his request for production under MFIPPA. As is the case for any litigant in any court proceeding, it was open to the Board to consider the relief sought on this motion based on the applicable Rules and case law, decide whether there was any tenable basis on which to oppose the motion, and then respond accordingly.
Is Gargari precluded from bringing this motion by Master Muir’s order that he first exhaust his rights of appeal under the [MFIPPA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m56/latest/rso-1990-c-m56.html)?
[22] Gargari attempted to argue, based on Henery v. London(City), 2007 CanLII 51338 (Ont. Div. Ct.), that Master Muir’s rulings that he must first exhaust his appeal rights under MFIPPA before seeking a court order for production of the class register were incorrect, and it was therefore unnecessary for me to consider the issue of whether he had exhausted those rights. However, even if Master Muir’s rulings were incorrect, Gargari’s failure to appeal those rulings means that they are binding on him for the purpose of the current motion. It is therefore necessary to consider whether Gargari has exhausted his appeal rights under MFIPPA.
[23] Subsequent to Master Muir’s first endorsement of November 22, 2018, Gargari unsuccessfully sought production of the class register from the “head” of the Board under s. 14(1) of MFIPPA. In his endorsement of April 3, 2019, Master Muir dismissed the motion for a second time without prejudice to Gargari bringing this motion again after exhausting his appeal rights under MFIPPA. On February 6, 2020, Gargari’s appeal of the decision of the Board’s “head” was dismissed by Adjudicator Kowalski. Gargari submits that by completing the appeal process under s. 39 of MFIPPA, he has fully complied with Master Muir’s direction and he is now entitled to proceed with this motion.
[24] The Board submits that Gargari has the right to apply to the Divisional Court for judicial review of Adjudicator Kowalski’s decision, and has therefore not exhausted his rights of appeal under MFIPPA. I disagree.
[25] First, Master Muir required that Gargari exhaust “his appeal rights under MFIPP”. Gargari’s right of appeal under s. 39(1) of MFIPPA is to “the Commissioner appointed under subsection 4(1) of the Freedom of Information and Protection of Privacy Act.” He exercised this right of appeal with the delivery of the submissions considered by Adjudicator Kowalski and he has no other appeal rights under MFIPPA. An application for judicial review must be made under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 and is not relief under MFIPPA.
[26] Second, an appeal and an application for judicial review are not the same thing. The focus of judicial review is not the substance of the decision, but whether the administrative body making the decision properly exercised its powers. If Master Muir intended that Gargari also seek judicial review of the Adjudicator’s appeal decision under MFIPPA, it was incumbent on him to use that term as opposed to “appeal”, and he did not. Gargari has complied with Master Muir’s direction.
[27] Furthermore, the Board’s submission that Gargari must apply for judicial review of the OIPC Adjudicator’s decision would open the door to two more levels of appeal. If Master Muir’s rulings require Gargari to apply for judicial review of the Adjudicator’s decision, and the application is dismissed by the Divisional Court, must he then appeal to the Court of Appeal? And if this hypothetical appeal to the Court of Appeal is dismissed, must he then seek leave to appeal to the Supreme Court of Canada? The Board makes much of the issue of proportionality in relation to providing contact information for the plaintiff’s former classmates but argues that it is reasonable and apparently proportional to expect Gargari to pursue an appeal under MFIPPA, a judicial review application to Divisional Court, and two more levels of appeal, in respect of disclosure of a single document and contact information for some witnesses. Such an approach is completely at odds with the prime directive in Rule 1.04(1) “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”
[28] For these reasons, I conclude that, in compliance with Master Muir’s direction, Gargari has exhausted his appeal rights under MFIPPA, and he may proceed with this motion.
Considering the applicable Rules of Civil Procedure and case law, is Gargari entitled to production of the class register and disclosure of the identities and last known contact information of the students named in it?
[29] If the conduct described by Gargari in paragraphs 7, 8 and 25 of the statement of claim occurred as alleged, the students named in the class register plausibly would have witnessed it and they are all therefore “persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action.” On this basis, the class register identifying Gargari’s classmates, and their last known addresses, would fall within the defendant’s disclosure obligations under rule 31.06(2).
[30] Counsel for the Board argues that any evidence that might be obtained from Gargari’s classmates is unnecessary because Gargari himself can give evidence about what happened to him at the school between September, 1983 and January, 1984. This argument has no merit. While the Board may prefer that Gargari not call evidence that may corroborate his version of events, it has no right to prevent him from doing so or to deny him the ability to identify witnesses who may be able to give such evidence. This is especially the case where Gargari’s classmates are very likely the only witnesses to what transpired in his grade 3 classroom during the period in question.
[31] Counsel for the Board also submits that the contents of the class register are not sufficiently relevant to warrant an order that it be produced because Gargari’s discovery evidence was that his teacher struck him in front of the class on only one occasion and the Board takes the position that physical or corporal punishment was legal in 1983/1984 and that such punishment could have included spanking a child with a ruler or yardstick. The Board argues that because it has acknowledged that Gargari’s grade 3 teacher may have struck him in front of his class, the other students present in the class on that occasion will have no additional evidence to give on the issue.
[32] Gargari’s allegations against his grade 3 teacher are not limited to a single incident of having been struck in front of his class. Rather, he alleges (in paras. 8 and 25 of the statement of claim) a course of abusive behaviour by the teacher against himself and other students, subjecting him to “an environment of fear and anxiety”, causing his injuries and losses. The Board denies the abuse, thus putting those allegations in issue.
[33] The possible evidence from the other students in Gargari’s grade 3 class will not be limited to the single incident in which Gargari was struck in front of the class. Rather, any such evidence would relate to all of the teacher’s actions between September, 1983 and January, 1984, which in fact constitute the bulk of the alleged abuse. Gargari’s classmates’ evidence would be therefore be relevant to his allegations regarding the teacher’s conduct during the entire period for which he attended the school.
[34] Under rule 31.06(2), Gargari “may on examination for discovery obtain disclosure” of his classmates’ names and last known addresses, “unless the court orders otherwise.” This language confers discretion on the court to order or refuse to order disclosure based on a consideration of all the circumstances.
[35] The Board submits that disclosure of the identities of Gargari’s classmates should be refused because at the time of the subject events, they were minors.
[36] The Board relies on the decision of the Supreme Court of Canada in R. v. Jarvis, 2019 SCC 10. The accused was a high school teacher charged with voyeurism after having been caught filming female students using a pen camera. In addressing the issue of whether the students had a reasonable expectation of privacy, the Court held (at para. 86):
86 The fact that all of the students were young persons, and that some of them were minors, is a circumstance that further supports the finding of a reasonable expectation of privacy. As has been acknowledged by this Court, the values that underlie privacy “apply equally if not more strongly in the case of young persons”[citations omitted]. That Canadian law provides children with greater privacy rights than similarly situated adults in a number of contexts evidences a societal consensus on this point, and on the shared value of protecting children’s privacy [citations omitted].
[37] The Supreme Court’s decision in Jarvis recognizes that the greater vulnerability of minors entitles them to greater privacy rights than adults. However, the decision considers those privacy rights with a view to the protection of the accused’s young female victims while they were still minors. Gargari’s classmates were grade three students in 1983, so they were likely all born in 1975 and would now be approximately 45 years old. The fact that they were minors at the time of the alleged incidents 37 years ago does not insulate them from having their identities as potential witnesses disclosed as adults.
[38] The Board also relies on Doucet v. The Royal Winnipeg Ballet School, 2019 ONSC 6982. This is a class action against Monk, a former ballet school instructor and photographer, and the Ballet School itself, based on allegations that Monk took intimate photographs of students in private settings, constituting sexual assault of the students, a breach of fiduciary duty, and various statutory and common law privacy and confidentiality torts.
[39] In dismissing a refusals motion brought by the plaintiffs against the defendant Monk, Perell J. noted (at para. 24) that all but two of the questions refused or taken under advisement concerned Royal Winnipeg Ballet staff and administrators and former Royal Winnipeg Ballet students, and then stated (at paras. 32-34):
32 In the immediate case, in my opinion, Mr. Monk’s refusals were justified on the grounds that the questions were an immaterial, irrelevant, disproportionate, and an overreaching, fishing expedition.
33 Ironically, having regard to the nature of the allegations being made against him by the Plaintiffs, Mr. Monk was also justified in refusing to answer questions that would invade the privacy of former students and the staff and administration of the Royal Winnipeg Ballet, who are non-parties to this litigation. [emphasis added]
34 In my opinion, questions about whether non-Class Members were photographed in the nude were not material or relevant and having regard to the information provided by Mr. Monk about genuine Class Members, this questioning was in any event disproportionate, even if it were a relevant line of questioning. I have seen the photos in the affidavit of documents and produced on the certification motion, and there is ample evidence of the nature of Mr. Monk’s photography.
[40] Although Perell J. considered the privacy of former Ballet School students in para. 33 of Doucet, he commented further on the issue of privacy (at para. 43):
43 I need need not answer whether privacy concerns are another justification for refusing to answer questions. I do note that while perhaps not a recognized ground for refusing to answer questions, it is ironic that the Plaintiffs asked and that it was Mr. Monk who refused to answer questions that would require him to disclose photographs of non-Class Members that the Plaintiffs allege are pornographic in nature and in any event are a very private matter. [emphasis added]
[41] The Board submits, based on Doucet, that an order requiring the disclosure of the names and contact information for Gargari’s classmates should be refused on the basis that such an order would constitute a breach of their privacy.
[42] The statement in para. 33 of Doucet that refusals were justified on the basis that the questions “would invade the privacy of former students”, appears to be contradicted by the statement in para. 43 that the court “need not answer whether privacy concerns are another justification for refusing to answer questions.” However, Perell J. also commented in para. 43 that the defendant was asked “to disclose photographs of non-Class Members that the Plaintiffs allege are pornographic in nature and in any event are a very private matter”. Accordingly, even accepting that the privacy of strangers to an action may be a legitimate concern on a motion for disclosure of their identities, it is necessary to consider what aspect of those individuals’ privacy might be compromised.
[43] Gargari does not seek any information with respect to his classmates other than their names and last known contact information, none of which is particularly sensitive or prejudicial to the individuals involved. This is a far cry from the request in Doucet for production of what the plaintiffs themselves characterized as pornographic photographs of former students of the Royal Winnipeg Ballet School. The Board has not identified any privacy concern with respect to the mere identity of Gargari’s classmates that would justify refusing an order for disclosure.
[44] Finally, the privacy of the individuals in the class register is at least in part protected by the fact that Gargari’s use of their names and contact information is limited to the narrow scope of this action by the deemed undertaking in rule 30.1.01(3):
30.1.01(3) All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purpose other than those of the proceeding in which the evidence was obtained.
Would an order for disclosure of the last known contact information for the students named in the class register impose a disproportionately heavy burden on the Board?
[45] The Board submits that, even if it is ordered to produce the class register containing the names of all Gargari’s grade 3 classmates, the work required to obtain the last known addresses for those individuals would place a disproportionate burden on it. The Board relies on rules 1.04(1.1) and 29.2.03 of the Rules of Civil Procedure:
1.04 (1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
29.2.03 (1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,
(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;
(b) the expense associated with answering the question or producing the document would be unjustified;
(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;
(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and
(e) the information or the document is readily available to the party requesting it from another source. O. Reg. 438/08, s. 25.
(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.
[46] The Board submits that it is “highly doubtful” that it has any contact information for any of the students named in the class register and relies on the following assertions:
The Board did not have a central repository of information in 1983/84 so it would have to manually review its paper records from that year in an attempt to locate the students’ contact information. The Board submits that it would have to expend significant time and resources to search for information that it may not have and which, in any event, may well be out of date.
If a student transferred outside the Board, it would have no information for that student because their Ontario Student Record would have been transferred with the student.
If a student whose name appears in the class register transferred to another school within the Board, the Board would be required to manually review paper records for all of its approximately 150 schools, which would require a significant expenditure of time and resources.
The class register does not contain a student’s full name but only their last name and first initial which will make it more difficult to identify a student who has transferred to another school.
[47] Under rule 1.04(1.1), the court’s order shall be proportionate to the importance and complexity of the issues, and to the amount involved. The information requested is the contact information for the only potential witnesses to the abuse alleged in the statement of claim. The plaintiff claims damages totalling $875,000.00 and the statement of claim contains serious allegations of abuse by a teacher. The disclosure of the contact information for witnesses who could testify as to whether those allegations are accurate could significantly assist the court in making a just decision. The requested information is therefore sufficiently related to the resolution of the central liability issue in the action that requiring the Board to use some resources to provide the information is warranted.
[48] I will also consider the factors in rule 29.02.03(1):
(a) The time required: Although it is difficult to quantify the time required to make the necessary enquiries to provide whatever last known addresses may be available for the students named in the class register, the issue is sufficiently important to justify some use of the Board’s resources to try to obtain it. The extent of the resources required can be limited as described below.
(b) The expense associated with answering the question: Although the Board has provided evidence that locating the information could be time-consuming, there is no evidence of any financial cost to attempting to obtain it. There is also no evidence that any enquiries will be made other than of Board employees, so it is reasonable to conclude that there will be no financial cost.
(c) Any possible undue prejudice: The expenditure of time required to obtain contact information for witnesses does not constitute prejudice to the Board.
(d) Any possible interference with the orderly progress of the action: The Board refers to “a significant expenditure of time and resources” required to attempt to provide the information, but there is no evidence that the search for the information will significantly delay the action. More importantly, the Board argued that Gargari should in effect delay the action by seeking judicial review of Adjudicator Kowalski’s decision in the MFIPPA appeal, and possibly to appeal a Divisional Court decision to higher courts, so it can hardly suggest that having to spend a much shorter period of time looking for witnesses’ addresses would significantly delay the action.
(e) Whether the information is readily available from another source: There is no evidence that the witnesses’ addresses are available from any source other than the Board.
[49] Rule 29.2.03(2) requires a consideration of whether the order sought on this motion would require the Board to produce “an excessive volume of documents.” The only document that is the subject of the motion is the class register. The balance of the disclosure sought is information as to the last known addresses of the students named in the register, which would require minimal if any documentary production.
[50] Essentially, the last known addresses for the only possible witnesses to the conduct alleged by Gargari are sufficiently important information that the Board must be prepared to spend some time locating them. However, there are reasonable limits that the court can place on the scope of the search.
[51] The Board’s evidence is that it operates 150 schools. This total presumably includes all of its elementary schools, middle schools and high schools in the City of Toronto. There is little to be gained by requiring the Board to track every one of Gargari’s grade 3 classmates through every school under its jurisdiction. The request is for their last known addresses which would be their addresses when they last attended one of the Board’s schools, which in the case of most students would be a high school. High schools typically have a number of “feeder” schools, and would constitute only a fraction of the Board’s total schools. The enquiries to be made by the Board could reasonably be limited to its high schools.
[52] Some geographic limitation with respect to the Board’s enquiries would also be appropriate. St. Wilfrid’s Elementary School is located on Finch Avenue, west of Keele Street, in the northwestern quadrant of the City, and most of its students would likely have attended high school in that general area. The Board’s enquiries shall be confined to its high schools located in the area bounded by the City of Mississauga to the west, Steeles Avenue to the north, Yonge Street to the east, and Eglinton Avenue to the south.
[53] It is also possible to reduce the scope of the Board’s enquiries by limiting the time period for which it is required to search. Most of Gargari’s grade 3 classmates named in the class register for the 1983/84 school year would have entered grade 11 in 1991, grade 12 in 1992 and grade 13 in 1993. The Board’s search for their last known addresses can therefore be limited to the school years 1991-1994.
Order
[54] For these reasons, the Board is hereby ordered:
To produce the class register for Gargari’s grade 3 class at St. Wilfrid’s Elementary School;
To make best efforts to obtain from its high schools in the area bounded by the City of Mississauga to the west, Steeles Avenue to the north, Yonge Street to the east, and Eglinton Avenue to the south, the last known addresses for all students named in the class register for the school years 1991-1994.
Costs
[55] At the conclusion of the hearing, both parties filed costs outlines. I agreed that they could make submissions on costs after receiving my Reasons for Decision. If the parties cannot agree on the disposition of costs, they may make written submissions, the plaintiff within 20 days and the defendant within 20 days following receipt of the plaintiff’s submission. Submissions shall not exceed three pages not including the costs outlines already filed.
MASTER GRAHAM
November 13, 2020
Appendix: Sections of [Municipal Freedom of Information and Protection of Privacy Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m56/latest/rso-1990-c-m56.html), R.S.O. 1990, c. M. 56 (“MFIPPA”) referred to in Master Muir’s endorsement:
2.(1) In this Act,
“head”, in respect of an institution, means the individual or body determined to be head under section 3;
“Information and Privacy Commissioner” and “Commissioner” mean the Commissioner appointed under subsection 4(1) of the Freedom of Information and Protection of Privacy Act;
“personal information” means recorded information about an identifiable individual, including,
(a) information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,
(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
(c) any identifying number, symbol or other particular assigned to the individual,
(d) the address, telephone number, fingerprints or blood type of the individual,
(e) the personal opinions or views of the individual except if they relate to another individual,
(f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,
(g) the views or opinions of another individual about the individual, and
(h) the individual’s name if it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual; (“renseignements personnels”)
14 (1) A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,
(a) upon the prior written request or consent of the individual, if the record is one to which the individual is entitled to have access;
(b) in compelling circumstances affecting the health or safety of an individual, if upon disclosure notification thereof is mailed to the last known address of the individual to whom the information relates;
(c) personal information collected and maintained specifically for the purpose of creating a record available to the general public;
(d) under an Act of Ontario or Canada that expressly authorizes the disclosure;
(e) for a research purpose if,
(i) the disclosure is consistent with the conditions or reasonable expectations of disclosure under which the personal information was provided, collected or obtained,
(ii) the research purpose for which the disclosure is to be made cannot be reasonably accomplished unless the information is provided in individually identifiable form, and
(iii) the person who is to receive the record has agreed to comply with the conditions relating to security and confidentiality prescribed by the regulations; or
(f) if the disclosure does not constitute an unjustified invasion of personal privacy. R.S.O. 1990, c. M.56, s. 14 (1).
39 (1) A person may appeal any decision of a head under this Act to the Commissioner if,
(a) the person has made a request for access to a record under subsection 17 (1);
(b) the person has made a request for access to personal information under subsection 37 (1);
(c) the person has made a request for correction of personal information under subsection 36 (2); or
(d) the person is given notice of a request under subsection 21 (1). R.S.O. 1990, c. M.56, s. 39 (1).
51 (1) This Act does not impose any limitation on the information otherwise available by law to a party to litigation.
(2) This Act does not affect the power of a court or a tribunal to compel a witness to testify or compel the production of a document. R.S.O. 1990, c. M.56, s. 51.