Court File and Parties

Court File No.: 6399/11 ext. 0001 Date: 2021-10-25 Superior Court of Justice - Ontario

Re: Dina Alexandra Deuzeman, Applicant And: Khalid Mohamed Elgwaily, Respondent

Before: Heeney J.

Counsel: Carrie L. Simmons, for the Applicant (for this motion) George McFadyen, for the Respondent R. Paul Marshall, for the non-party Conseil scolaire Viamonde

Heard: In writing

Endorsement

[1] This is a motion for non-party disclosure of school records. The Motion document states that is being brought by the Respondent, although from the rest of the documents filed that appears to be an error, and it is in fact the Applicant who is bringing this motion. Nothing turns on this in any event, since the both parties agree that the relief should be granted and have signed a consent in that regard.

[2] The motion is opposed by the non-party Conseil scolaire Viamonde (the “school board”), on the basis that the records are privileged pursuant to statute.

[3] By way of background, this motion arises in the context of a Motion to Change brought by the Applicant. The parties are the parents of two children, Gabriel, born June 7, 2003 and Ava, born August 19, 2006. Pursuant to the divorce order of Gorman J. dated December 8, 2009, the Applicant was granted custody of the children, with liberal access to the Respondent. The Respondent was ordered to pay child support. That support order was later varied by Donohue J. in 2011 as to quantum.

[4] The Motion to Change seeks to terminate the Respondent’s obligation to pay child support for the child Gabriel as of October 31, 2019, on the basis that he withdrew from parental control and is no longer entitled to support from that date forward. This Motion to Change is opposed by the Respondent, which at first seems strange since it is his obligation to pay child support that the Applicant seeks to terminate. However, the Respondent claims that Gabriel came to live with him as of February 2020. He seeks to vary the order himself such that he shall have sole decision-making responsibility and primary residence of Gabriel. He also seeks a retroactive variation of child support to February 1, 2020, on the basis of a split custody arrangement, such that support should be calculated from that point forward on the basis that each parent had primary care of one child.

[5] The Applicant denies that a split custody arrangement has existed since February 2020, and maintains that Gabriel withdrew from parental control in 2019 and remains independent.

[6] The Applicant, with the Respondent’s consent, is seeking a copy of Gabriel’s Ontario School Record (“OSR”), to include his registration and enrollment records from September 1, 2019 to date, as well as attendance records, progress records and any consent forms relating to the same period.

[7] The relevance of those records relates to the allegation made by the Applicant that Gabriel enrolled in school as an independent student. Confirmation of this through production of his enrollment records would tend to support the Applicant’s claim that he withdrew from parental control in the fall of 2019, although it would not necessarily answer the Respondent’s claim that Gabriel came to live with him later, in February 2020, and was thereafter under parental control and entitled to support.

[8] While the Respondent consents to the Applicant’s motion, the school board does not. Interestingly, in the factum filed on behalf of the school board, it is conceded that Gabriel had withdrawn from parental authority, and enrolled in school in the fall of 2019 as an independent student. However, they take the position that they have a statutory duty to oppose disclosure of Gabriel’s OSR. Since he is now of the age of majority, his OSR cannot be released without his consent. He has not, in fact, consented, and therefore the school board refuses to release his OSR.

[9] Section 266 of the Education Act, R.S.O. 1990, c. E.2, deals with disclosure of an OSR. The section, in full, provides as follows:

266 (1) In this section, except in subsection (12),

“record”, in respect of a pupil, means a record under clause 265 (1) (d).

Pupil records privileged

(2) A record is privileged for the information and use of supervisory officers and the principal, teachers and designated early childhood educators of the school for the improvement of instruction and other education of the pupil, and such record,

(a) subject to subsections (2.1), (3), (5), (5.1), (5.2) and (5.3), is not available to any other person; and

(b) except for the purposes of subsections (5), (5.1), (5.2) and (5.3), is not admissible in evidence for any purpose in any trial, inquest, inquiry, examination, hearing or other proceeding, except to prove the establishment, maintenance, retention or transfer of the record,

without the written permission of the parent or guardian of the pupil or, where the pupil is an adult, the written permission of the pupil.

Information to medical officer of health

(2.1) The principal of a school shall, upon request by the medical officer of health serving the area in which the school is located, give that medical officer of health the following information in respect of pupils enrolled in the school:

1. The pupil’s name, address and telephone number.

2. The pupil’s birthdate.

3. The name, address and telephone number of the pupil’s parent or guardian.

Right of parent and pupil

(3) A pupil, and his or her parent or guardian where the pupil is a minor, is entitled to examine the record of such pupil.

Idem

(4) Where, in the opinion of a pupil who is an adult, or of the parent or guardian of a pupil who is a minor, information recorded upon the record of the pupil is,

(a) inaccurately recorded; or

(b) not conducive to the improvement of instruction of the pupil,

such pupil, parent or guardian, as the case may be, may, in writing, request the principal to correct the alleged inaccuracy in, or to remove the impugned information from, such record.

Reference to supervisory officer

(5) If the principal refuses to comply with a request under subsection (4), the pupil, parent or guardian who made the request may, in writing, require the principal to refer it to the appropriate supervisory officer.

Same

(5.1) The supervisory officer shall consider the request and shall,

(a) require the principal to comply with the request; or

(b) submit the record and the request to a person designated by the Minister.

Hearing

(5.2) Subject to subsection (5.3), on receiving the record and request under clause (5.1) (b), the designated person shall hold a hearing, at which the principal and the person who made the request have the rights of parties, and the designated person shall decide the matter, and his or her decision is final and binding.

Exception

(5.3) The designated person may refuse to hold a hearing if,

(a) in his or her opinion, the request is trivial, frivolous or vexatious; or

(b) the request is for the removal of information from a record and, in his or her opinion, a guideline made under paragraph 27 of subsection 8 (1) requires that the information be included in the record.

Use re further education or employment

(6) Nothing in subsection (2) prohibits the use by the principal of the record in respect of a pupil to assist in the preparation of,

(a) a report required by this Act or the regulations; or

(b) a report,

(i) for an educational institution or for the pupil or former pupil, in respect of an application for further education, or

(ii) for the pupil or former pupil in respect of an application for employment,

where a written request is made by the former pupil, the pupil where he or she is an adult, or the parent or guardian of the pupil where the pupil is a minor.

Information for Minister or board

(7) Nothing in this section prevents the compilation and delivery of such information as may be required by the Minister or by the board.

No action re content

(8) No action shall be brought against any person in respect of the content of a record.

Testimony re content

(9) Except where the record has been introduced in evidence as provided in this section, no person shall be required in any trial or other proceeding to give evidence in respect of the content of a record.

Secrecy re contents

(10) Except as permitted under this section, every person shall preserve secrecy in respect of the content of a record that comes to the person’s knowledge in the course of his or her duties or employment, and no such person shall communicate any such knowledge to any other person except,

(a) as may be required in the performance of his or her duties; or

(b) with the written consent of the parent or guardian of the pupil where the pupil is a minor; or

(c) with the written consent of the pupil where the pupil is an adult.

Definition

(11) For the purposes of this section,

“guardian” includes a person, society or corporation who or that has custody of a pupil.

Application to former records

(12) This section, except subsections (3), (4), (5), (5.1), (5.2) and (5.3), applies with necessary modifications to a record established and maintained in respect of a pupil or retained in respect of a former pupil prior.

Use of record in disciplinary cases

(13) Nothing in this section prevents the use of a record in respect of a pupil by the principal of the school attended by the pupil or the board that operates the school for the purposes of a disciplinary proceeding instituted by the principal in respect of conduct for which the pupil is responsible to the principal.

[10] On a plain reading of s. 266(2), the contents of the OSR are privileged, and are not subject to disclosure nor are they admissible for any purpose in a trial or hearing. None of the exceptions that are provided for in this section apply to this case. At first glance, this section appears to be a complete bar to the relief requested in the Applicant’s motion.

[11] Although they are opposing disclosure of Gabriel’s OSR in reliance upon this section, counsel for the school board quite fairly provided copies of several decisions where disclosure was considered by the court notwithstanding s. 266 and, in some cases, was ordered.

[12] The first was R. v. K. (A.J.), 1995 CarswellOnt 852. That case involved accusations of sexual assault against a teacher, who sought disclosure of the student records of the complainant. At para. 36, Hill J. considered the applicability of s. 266 to a criminal proceeding:

All parties were in agreement, considering the constitutional division of powers, that such a provincial enactment may not operate to determine the admissibility of evidence in a criminal proceeding: Regina v. Rankin, Ont. C.A., Jan. 10, 1995 at 11. The existence of such a statutory scheme is however a strong and instructive indication of public policy to be considered in balancing confidentiality and privacy interests with fair trial concerns: Regina v. S.(R.J.) (1985), 1985 3575 (ON CA), 19 C.C.C. (3d) 115 (Ont. C.A.) at 134.

[13] Since the case at bar is not a criminal case, I do not find the analytical approach taken by Hill J. in that case to be applicable.

[14] The second case was Nurse (Litigation Guardian of) v. Kawartha Pine Ridge District School Board, 2005 CarswellOnt 3184, [2005] O.J. No. 3107, a decision of Master Dash. In that case, both the school board and the Children’s Aid Society (“CAS”) were sued by a special needs student, for damages arising out of alleged sexual abuse. The child was a Crown ward and under the guardianship of the CAS. The CAS sought disclosure of the child’s OSR, and consented to this disclosure on behalf of the child. At issue was whether the CAS was in a conflict of interest in so consenting.

[15] Master Dash held that the CAS was entitled to consent to disclosure on behalf of the child. This distinguishes that case from the case at bar, where there is no consent. However, went on to say the following, at para. 17:

If I am wrong, and if the CAS cannot validly consent because of a conflict of interest, then to avoid the absurd result of there being no remedy, the court must be able make a determination on equitable principles whether to order production, by balancing the privacy interests and protection of Stephen with the interests of the CAS, as well as Shawn, to have access to all relevant documents in order to correctly dispose of the litigation and allow all parties to have a fair trial.

[16] He went on to conduct a principled analysis of the issue, and ordered disclosure.

[17] That approach was criticized by Lederer J. in Robinson v. Northmount School for Boys, 2014 ONSC 2603. At para. 29 he said this:

The Education Act is clear. The statutory privilege either applies or it does not. There is no discretion left for the court to decide whether there is a broader interest that requires or, in the alternative, forbids the production of the material that is privileged. The only issue is whether the privilege applies. This decision does not provide another means by which answers to the questions can be compelled.

[18] I agree with Lederer J. The statutory provision is clear, and does not give the court discretion to order disclosure of documents that, pursuant to s. 266, are privileged. The essential question, then, is whether the documents in question fall within that privilege.

[19] At paras. 13 and 14, Lederer J. set out the following approach to answering that question:

A privilege is an indulgence and, as such, should be narrowly construed:

A privilege is a special right, advantage, exemption, immunity, or indulgence granted by the law, and in the context of documentary discovery and of oral examinations is the right to not have disclosed to one’s opponent and the adjudicator communications that are relevant to the proof or disproof of a disputed fact. The person with the privilege is relieved or excused from the obligation to disclose the document or communication protected by the privilege....

Because of their interference with the discovery of the truth, the operation of the various privileges is carefully scrutinized to ensure that the privilege is not available unless the constituent elements of the particular privilege are satisfied.

Perell, Morden, The Law of Civil Procedure in Ontario, First Edition, © LexisNexis Canada Inc. 2010, at p. 524-5

The OSR is “privileged” for use by the educational professionals referred to in s. 266 (2) (supervisory officers, the principal, teachers and designated early childhood educators of the school) only “...for the improvement of instruction and other education of the pupil”. If the information is put in the OSR for some other reason and cannot contribute to the instruction or education of the child, it should not be in the OSR and is not subject to the privilege.

[20] Lederer J. then referred to the Ontario Student Record (OSR) Guideline, published by the Ministry of Education in 2000, which was recently revised in 2020 (although the revisions have no impact on the issues in this case). He said the following, at paras. 15-17 (endnotes omitted):

There is a published Guideline. It suggests that there may be uses of the information and materials contained in the OSR beyond those it and the Education Act specifies. Boards are authorized to develop policies for identifying such uses. Reference is made to section 3.4 of the Guideline (The Documentation File). It refers to “other reports and/or information identified in accordance with the policies established by the school board.” Could such reports or information be used for something other than “improvement of instruction and other education of the pupil”? The use of these reports is specifically qualified. The Guideline says that reports from a professional, paraprofessional, or other relevant person “...should only be included [in an OSR] if, in the principal’s opinion, they are conducive to the improvement of the instruction of the student.” In other words, if they cannot assist with the education of the pupil they should not find their way into the OSR. The court was not made aware of any policy developed by the school or the policies of any Board which would apply.

In Children’s Aid Society of Ottawa v. S. (N.), 2005 7661 (ON SC), [2005] O.J. No. 1070, 138 A.C.W.S. (3d) 299 (Ont. S.C.J.), the biological mother sought disclosure of her daughter’s entire school record. This included all psychological tests or results and any notes, reports or records involving her daughter and a guidance counsellor at the school. This concerned a child protection proceeding. The court considered the competing concerns of the best interest of the child and the parental interest in raising a child and found that communications between the child and the counsellor were subject to a privilege of confidentiality. However, this determination was only forthcoming after a finding that “the notes made and kept by the guidance counsellor in this case cannot be considered to form part of a ‘pupil record’ sufficient to be protected by the apparent privilege established in s. 266(2) [of the Education Act]” . Although no reference is made to this in the decision, it is consistent with the notion that these reports are not properly part of the OSR because, in the particular case, they would not have an impact on the quality of the instruction being provided to the student.

The Guideline also says that Boards are authorized to develop policies for determining “the types of information beyond those required by this guideline that could be added to the office index card (see: section 3.5 of the Guideline)”. It makes reference to “other information that is identified in accordance with the policies established by the school board”. It seems there is no school board [policy] that applies and the court was not advised of any policy set by the school. The sentence referred to above that directs that reports should be included in the OSR “...only if they are conducive to the improvement of the instruction...” begins with the phrase “As with other material included in the OSR...” To my mind, this proposes that “other information” (that is to be included in the OSR) is to refer to material that reflects on the quality of the instruction and education.

[21] I conclude from the foregoing that the mere fact that a document happens to have found its way into a student’s OSR does not automatically give rise to the privilege created by s. 266. Instead, in keeping with the narrow construction applicable to claims of privilege, the documents in question have to be closely examined to determine whether they are the types of documents that are intended to be included in the OSR.

[22] I have been provided with a copy of Gabriel’s OSR by counsel for the board. It contains his report cards and attendance records. In my view, those documents are clearly related to the quality of his instruction and education, since the extent to which he attends or misses school, and the degree of his success or failure on the subjects he studies all relate to the quality of his instruction and education, and therefore fall within the statutory privilege.

[23] However, the OSR also contains his enrollment form for school year 2019-2020. It is this document that contains the information that is relevant to these proceedings and is sought by the Applicant. Clearly, the school board has to keep track of the students who are enrolled at its schools, and one would expect them to maintain a comprehensive file containing the registration forms of all students enrolled at any given school for any given academic year. Does the fact that a copy of Gabriel’s enrollment form can be found in his OSR give rise to the privilege created by s. 266?

[24] Section 3 of the current Guideline prescribes the components of the OSR:

3. COMPONENTS OF THE OSR

An OSR will consist of the following components:

• an OSR folder in Form 1A or Form 1

• report cards

• an Ontario Student Transcript, where applicable

• a documentation file, where applicable

• an office index card

• additional information identified as being conducive to the improvement of the instruction of the student

[25] The student’s enrollment form is not specifically included in that list. Thus, the only way in which it could be considered to properly form part of the OSR is if it formed part of the “documentation file”, or if it fell within the final category of “additional information”.

[26] The contents of the “documentation file” are set out in s. 3.4:

3.4 The Documentation File

When a documentation file is required, it will be kept in the OSR folder. A documentation file will be established when the following information is required:

• verification of a custody order

• verification of a change of surname (see section 10)

• a written request to be named by repute (see section 10.1)

• the statement of decision of an Identification, Placement, and Review Committee (IPRC); the recommendation of an appeal board and the decision of the school board regarding identification and/or placement, where applicable; and a tribunal's decision regarding identification and/or placement, where applicable

• an Individual Education Plan (IEP) for a student receiving special education programs and services

• educational, psychological, and health assessments

• an Intensive Support Amount (ISA) status form

• the report of a Supervised Alternative Learning for Excused Pupils (SALEP) committee

• letters of request for a correction to, or a deletion from, the record where the request has not been granted (see section 9)

• other reports and/or information identified in accordance with the policies established by the school board (see section 2)

• a Violent Incident Form (see appendix J)

[27] Clearly, a student enrollment form is not to be included in the documentation file.

[28] Thus, the only way the enrollment form could be said to form part of the OSR is under the category of “other information”. However, it could only do so if it contains information “conducive to the improvement of the instruction of the student”.

[29] In my view, Gabriel’s enrollment form does not fall within this final category. It does nothing more than serve to record his admission as a student. It does not provide any education plan, record of achievement or anything else conducive to the improvement of his instruction. In the words of Lederer J., quoted above, it does not contain “material that reflects on the quality of the instruction and education.”

[30] Accordingly, I conclude that Gabriel’s 2019-2020 enrollment form is not covered by the privilege created by s. 266. Since it is clearly relevant to the issues between the parties, and it would be unfair to the Applicant to require her to go on with the case without it, an order will go under Rule 19(11) of the Family Law Rules that Conseil scolaire Viamonde, École secondaire Franco-Jeunesse and École secondaire Gabriel-Dumont provide to the parties copies of Gabriel’s enrollment form for school year 2019-2020 and any subsequent years.

[31] The motion for disclosure of student records other than registration and enrollment records from September 1, 2019 is dismissed.

[32] For completeness, I should mention that the school board also relied upon the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 in resisting disclosure. However, the short answer to those submissions can be found in s. 51(2) of that Act, which provides as follows:

(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.

[33] I interpret this to mean that the power of this court to order production under Rule 19(11) is unaffected by the provisions of that Act. Had it been necessary to consider that Act, I would have found that the disclosure ordered does not constitute an unjustified invasion of personal privacy under s. 14(1)(f). One of the criteria to be considered in determining that issue is s. 14(2)(d), where “the personal information is relevant to a fair determination of rights affecting the person who made the request”. Here, the information is relevant to a fair determination of the rights and obligations of the parties to pay and receive child support, and disclosure is justified on that basis.

[34] This is so despite s. 14(3)(d), which presumes disclosure to constitute an unjustified invasion of personal privacy where it “relates to employment or educational history”. In my view, the document in question does not relate to Gabriel’s educational history as would, for example, copies of his report cards or attendance records, but instead relates simply to the fact of his enrollment, and to his status as an independent student when he did so. The history of his education is not revealed in this document.

[35] This is not a case for costs.

Mr. Justice T. A. Heeney

Date: October 25, 2021