Court crushes Nova Scotia anti-bullying legislation
In 2013, Nova Scotia was the first jurisdiction in Canada to pass legislation for the protection of victims of cyber-bullying. The Cyber-safety Act (S.N.S. 2013, c. 2) (Act) gave principals and school boards greater powers and responsibilities vis-à-vis the Education Act (S.N.S. 1995-96, c. 1), and it allowed for the creation of the cyber-investigative unit. Furthermore, the legislation created a mechanism in which victims of cyber-bullying could apply to the court for a protection order. Finally, the new statutory tort of cyber-bullying was established, allowing individuals to sue for damages or to obtain an injunction. The Act defined cyber-bullying broadly to include both minors and adults:
[Any] electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person's health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way.
In Crouch v. Snell (2015 NSSC 340), the Supreme Court of Nova Scotia struck down the Act, finding that the legislation was contrary to the Canadian Charter of Rights and Freedoms (Charter). Crouch and Snell were former business partners. After their business relationship ended, Crouch alleged that Snell started a "smear campaign" against him on social media. Crouch was granted a protection order under the Act on an ex parte basis, without notice to Snell. Snell received notice at a later point when he was served with a copy of the protection order which prohibited him from engaging in cyberbullying. Snell was also restricted from communicating with or about Crouch. Snell argued that the definition of cyber-bullying in the Act and the ex parte procedure for obtaining a protection order infringed his section 2(b) and section 7 Charter rights – freedom of expression and an individual's right to life, liberty and security of the person.
The Supreme Court of Nova Scotia found that Snell had engaged in cyber-bullying, pursuant to the definition under the Act, and that he would likely continue. However, the Court held that the Act violated sections 2 and 7 of the Charter and stated:
[...] prevention of cyber-bullying is a purpose that aims to restrict the content of expression by singling out particular meanings that are not to be conveyed, i.e. communication that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person's health, emotional well-being, self-esteem or reputation.
The Court stated that the Act did not provide sufficiently clear standards to avoid arbitrary and discriminatory application. The Act provided no limit prescribed by law. The Act allowed for punishments including fines up to $5000 or imprisonment for a term up to six months.
The Court held that the Act infringed on an individual's freedom of expression and right to life, liberty and security of the person, which could not be justified under s. 1 of the Charter. The Court concluded that the Act must be struck down in its entirety and that it must be eliminated right away, unlike other decisions which have struck down the legislation but offered the legislature a oneyear grace period to rewrite the law. The Court stated: "To temporarily suspend the declaration of validity would be to condone further infringements of charter-protected rights and freedoms." The Act was found to be unconstitutional and the protection order was declared void and of no effect.
Nova Scotia Justice Minister Diana Whalen has stated that the Department of Justice is considering whether to appeal the decision or to draft new legislation. The legislation was enacted to fill a gap in the law and to provide added protections to victims of cyber-bullying. Individuals will now have to seek remedies through traditional avenues, such as an action for defamation or through any applicable criminal charges.
Principal’s direction to stop parent from distributing religious pamphlets not a violation of Charter right
In Bonitto v. Halifax Regional School Board (2015 NSCA 80), Mr. Bonitto distributed religious pamphlets on the premises of a public elementary school, during school hours. The message in the materials was that unless 'one accepts Christ as their Lord and Saviour, they will go to hell'. Other messages denounced homosexual couples as blasphemers, condemned the beliefs of nonChristians, depicted violent imagery of animal and human sacrifices, and described injuries inflicted during crucifixion. The recipients of these materials included students.
The Policy of the Halifax Regional SchoolBoard (Board), which was adopted pursuant tothe Education Act, stated that materialsdistributed on school premises during schoolhours required the principal's approval.Another policy stated that denominationalreligious instruction should not occur onschool premises during school hours. Thedistribution of any materials at the Board’sschools requires approval “at the discretion ofthe principal”. The Park West School'sprincipal directed Mr. Bonitto to desistdistribution and Bonitto sued for an order thatthe restriction violated his right to freedom ofreligious expression under the CanadianCharter of Rights and Freedoms (Charter). Ajudge of the Supreme Court of Nova Scotiadismissed Bonitto's claim and Bonittoappealed to the Nova Scotia Court of Appeal.The school had accommodated Mr. Bonitto'schildren, who attended Park West School, inthat they not be exposed to materials orteachings which run contrary to hisfundamentalist Christian beliefs. The childrenwould be exempt from activities and materialsrelating to Halloween, the Easter Bunny, SantaClaus, magic, homosexuality and transgenderissues.
Mr. Bonitto claimed that his faith compelledhim to proselytize to others, including thechildren at Park West School. The Boardregularly received requests from other groupsto distribute religious materials on schoolproperty, including requests from the Jewishcommunity, pagans, Catholic groups, andothers. None of the requests were approved.
The Court of Appeal considered whether theprincipal’s direction for Bonitto to stop thedistribution of gospel pamphlets violated hisright to freedom of religious expression undersection 2(a) of the Charter. The Court ofAppeal dismissed the appeal and held that theprincipal’s direction infringed Bonitto's section2(a) Charter right, however, the principalproportionally balanced the Charter right andhis statutory objectives. The principal exercised a discretion that was given to himunder the Education Act.
An Application for Leave to Appeal to theSupreme Court of Canada was dismissed, andthe decision of the Nova Scotia Court ofAppeal was upheld.
The Supreme Court of Nova Scotia decision inBonitto was reviewed in the September 2015KC LLP Education Law Newsletter: “Courtnixes distribution of religious materials inschools”.
HRTO awards damages to student with multiple disabilities for school board’s failure to accommodate
L.B. v. Toronto District School Board (2015HRTO 1622) dealt with an Application allegingdiscrimination with respect to servicesbecause of disability. The Applicant, L.B., wasdiagnosed with multiple disabilities, includinglearning disabilities such as attention deficithyperactivity disorder (ADHD), and mentalhealth disabilities including anxiety anddepression.
The Applicant was a student in alarge collegiate institute (School) operated bythe Respondent, Toronto District School Board(TDSB).The Applicant alleged discrimination resultingfrom the failure of the TDSB to accommodatehis disability-related needs to the point ofundue hardship. As a result of the lack ofappropriate and needed accommodations, hismother had no option but to remove him fromthe School and enrol him at a private boardingschool. The Applicant claimed that due to hisdisabilities, he needed the regularinvolvement of a school staff member ormentor to motivate him to attend school on aregular basis. The Applicant stated that thecurrent private school placementaccommodates his needs and allows him to overcome his anxiety by focusing on a keymotivator – hockey.
The Respondent claimed that the Applicantwas accommodated appropriately withinTDSB's mandate under the Ontario HumanRights Code, R.S.O. 1990, c. H.19 (Code) andthe Education Act, R.S.O. 1990, c. E.2. TheRespondent claimed that theaccommodations sought by the Applicantcalled for services that are outside thelegislated mandate of a school board inOntario.
During L.B.'s Grade 6 year, a social workermet with the Applicant for counselling andsupport. In addition, one of the teachersvoluntarily agreed to go to the Applicant'shome first thing in the morning on severaloccasions to encourage the Applicant to getup and get to school, resulting in L.B.attending somewhat more regularly.L.B. was missing school in Grade 9 due to hisdepression and anxiety, and he stoppedattending school during the winter months.The Vice-Principal agreed to explore potentialsupports, such as peer mentoring, peertutoring and providing L.B. with some sportsleadership-related opportunities that mightmotivate him. There was no evidence thatthere was any immediate follow up with L.B.'steachers from the Vice-Principal. In February2013, S.B., the mother of LB., met with theschool guidance counsellor and specialeducation teacher. The mother informed themthat she was exploring the option of sendingL.B. to a private boarding school that focusedon hockey. She asked if the School couldcomplete a recommendation form for L.B.’sadmission to the private boarding school, andthe guidance counsellor completed the form.The guidance counsellor confirmed that shedid not suggest any alternative placements orprogramming.
In April 2013, L.B. transferred to a privateboarding school. He continued to receivecounselling and treatment as needed. His involvement in sports acted as a motivator forhis attendance. Educational accommodationsbenefited L.B., including smaller class sizes,as well as access to 1:1 resource assistanceand tutoring from teachers. The residentialsetting reduced the need for “getting toschool” on a daily basis. However, hisattendance issues were not fully resolved.
The Tribunal upheld the following principles inthe context of a school board accommodatingstudents with disabilities:
- School boards have an obligation under theCode to accommodate their students withdisabilities to the point of undue hardship,regardless of whether the students arereceiving any medical treatment in thecommunity or not;
- School boards have an obligation under theEducation Act to provide appropriatespecial education placements, programsand services to their exceptional students.Parental conduct or lack of parentalauthority cannot be used as a justificationfor not meeting an exceptional student’sneeds; and
- A parent’s “fierce advocacy” for his or her child must not and cannot prevent a schoolboard from accommodating the child’sneeds to the point of undue hardship.
The Tribunal found that L.B. was a person witha disability, as defined by the Code. TheApplicant’s position was that the Respondentshould have provided a residential schoolplacement within its jurisdiction with a hockeyfocus or that it should have provided a dailystaff member escort to get the Applicant toschool. The Tribunal had to determinewhether this was a “service” mandated underthe Code obligations of school boards.
The Tribunal agreed with the Respondent thatthe establishment or funding for a residential school (with or without a hockey or sportsfocus) is not within the school board'slegislated mandate and is not a "service" forthe purposes of the Code. Furthermore,section 264(1) of the Education Act does notcall for teachers to go to the homes of pupilsto motivate them to attend school. Theprimary responsibility for ensuring that a childattends school resides with the child andparent. The Tribunal concluded by stating thata school board has no obligation to developand provide a service that is wholly differentfrom their legislated mandate.
Nevertheless, the Tribunal found that L.B.established a prima facie case ofdiscrimination. L.B. did not receive access toeducational services offered by theRespondent and his disabilities were a factorin this treatment. The Respondent did notaccommodate the Applicant to the point ofundue hardship in accordance with the Codeand its obligations under the Education Act.The Tribunal found that the Respondent failedto provide services and supports to theApplicant that were or should have beenreasonably available, such as attendancecounselling, as well as in-school specialeducation programming support. If provided,the Applicant could have remained within thepublic educational system. The Tribunal notedthat TDSB delayed referring the Applicant, foralmost a full year, to appropriate supportservices such as potential alternativeplacements, including Section 23 programs ora provincial demonstration school for studentswith severe learning disabilities and ADHD.The Tribunal stated that this omission can bedeemed discriminatory, since substantiallydelaying access to these services can amountto a substantive breach of the Code.
The Applicant requested remedies including$50,000 for compensation for injury todignity, feelings and self-respect, however, theTribunal awarded $35,000. The Tribunal didnot award compensation representing tuitionand all other costs for L.B.’s attendance at the private elite sports boarding school since thiswas not a service provided by school boards.
The interim decision of the Human RightsTribunal of Ontario (HRTO) in this case wasreviewed in the March 2015 KC LLPEducation Law Newsletter: "HRTO limitsevidence at hearing re parental care forspecial-needs child".
HRTO addresses school board’s responsibilities to transgendered student
In D.B. v. Toronto District School Board(Board) (2015 HRTO 1592), the OntarioHuman Rights Tribunal (Tribunal) consideredan Application alleging discrimination on thebasis of sex, gender identity, genderexpression, and reprisal or threat of reprisal.The Application was filed by C.N., the motherand the litigation guardian of the minor child,D.B.
D.B. was enrolled in a French Immersionprogram at a public school. Starting in Grade2, he requested that his teacher refer to himas "Happy Face" rather than by his registeredbirth name, and the teacher complied with therequest. According to C.N., D.B. expressedgender dysphoria at an early age. Hetransitioned and presented himself as male atthe start of Grade 4 with a new adoptedname. The attendance sheets listed D.B. asfemale while he was presenting as male to hisclassmates.
There were also allegations of discriminationconcerning the Grade 3 school year. AroundFebruary 2013, C.N. met with Schoolrepresentatives to discuss removing "HappyFace" from French Immersion. C.N. allegedthat the Principal was resistant to D.B.'stransition and use of sex designation as the"trillium system" would not allow for that.Furthermore, the School Psychologist statedthat a medical diagnosis was required and that "Happy Face" should "come out". D.B. waskept at home when the School conductedworkshops that segregated boys from girls toaddress building positive relationships.Moreover, there were incidents at the Schoolinvolving classmates pulling each other'sunderwear or pants off. In the girls' poolchange room, D.B. was confronted by femalestudents who surrounded his stall, demandingto see his genitals. An older girl referred toD.B.'s transitioning as "gross". There was alsoan incident during recess where after aconfrontation with a group of boys, theteacher directed D.B. to play in an areadominated by girls.
In Grade 4, at a cross-country track meetorganized by the Board along age and gendercategories, D.B. participated as male and was"outed" by a student, who knew him fromGrade 1. There was an incident where D.B.had been asked to meet in the washroomduring lunch, where he was cornered by threeclassmates and given 48 hours to prove hisgender. After that incident, D.B. stayed awayfrom school for a week. The Boardinvestigated the incident and determined thatit fell within the ambit of its sexual misconductpolicy. Two boys received suspensions andlater, returned to school. D.B. returned toschool as well and participated in theinvestigation. The Board representatives metwith C.N. and her spouse and refused todisclose the length of suspension given to theboys involved in the May washroom incident.The Board later met with D.B.'s father todisclose the results of the investigation.
The Tribunal had to determine whether theseconstituted a series of events within themeaning of section 34(1)(b) of the OntarioHuman Rights Code, R.S.O. 1990, c. H.19(Code). The Tribunal also had to considerwhether the Application was timely, in that itfalls within one year of the date of filing theApplication. The Applicant sought to includeallegations within 24 months of the date offiling the Application.
The allegations regarding breaches of theCode during the Grade 4 school year primarilyrelated to the Board's action or inaction inresponse to two events: (1) the cross-countrytrack meet and (2) the boys' bathroomincident in May 2014. The Tribunal found thatthe allegations that arose in the Application inconnection with incidents occurring in Grade 4were timely. The girls' pool change roomincident and the occurrence involving an oldergirl referring to D.B.'s transition as "gross"were both promptly addressed by the Board.There was no allegation that the Board'saction in relation to these occurrences wasinadequate.
The Tribunal agreed with the Board that theincidents relating to D.B.'s transitioning duringGrade 3 were distinct in character from thoseencountered in Grade 4, after he presented asmale with a new name, with clear notice to theschool representatives that he wastransgendered and would require their activesupport to eliminate as much as possible allcategorization by gender, that might leave himvulnerable and exposed to ridicule.In this interim decision, the Tribunal orderedthat the allegations concerning eventspreceding August 26, 2013 be struck from theApplication and only be referred to for thepurpose of providing context.
This decision highlights the responsibilitiesthat school boards have to accommodatetransgendered students.
French school board ordered to pay damages to student for bullying and harassment
In E.C. c. École Saint-Vincent-Marie (2015QCCS 5996), the Quebec Superior Court(Court) ordered damages of $10,000 againstthe school board, Commission scolaire de laPointe-de-l'Île, resulting from harassment, of a physical and sexual nature, of an 11 year-oldfemale student.
The student stated that during the 2010-2011school year, there were a number of incidentsinvolving five boys in her class. They bulliedher verbally and physically for nearly eightmonths, until the student was removed fromthe school including the following behaviour:pulling the victim’s hair, calling her names,leaving threatening notes at her desk, andpunching her in the stomach and in the face.One of the boys phoned the girl’s home tothreaten her. There were also incidents whereseveral of the boys followed her into theschool’s unisex washroom and the boystouched her in a sexual nature. The schoolboard did not deny that serious attacks tookplace in the washroom, though they raisedquestions about whether sexual touching tookplace.
According to the girl and her parents, sheasked for help and reached out to teachers onnumerous occasions, but the staff did notrespond accordingly. The student had askedto be transferred to another school; however,the request was refused, in part because theschool stated that the issues were not seriousenough.
The school argued that sufficient action hadbeen taken to address the behaviour of theboys; however, the Court found that therewere behavioural issues with the five boyssince the start of the school year and theproblem only improved temporarily with theintervention of school staff.
The Court accepted the girl’s version ofevents. Her life was seriously affected by thebullying. According to her testimony, thestudent is anxious with suicidal thoughts, sheregularly missed days at school during the2010-2011 school year, and following thespringtime attack in the washroom, she didnot return at all. She has had troubleattending school since.
The Court found that the legal test set out inArticle 1457 of the Québec Civil Code wasbreached. Pursuant to the test, the claimantwas able to establish that the boys wereminorities, that they were students with theschool board, and the incidents causeddamages to the claimant. The school boardwas then required to show that they hadappropriate surveillance. The Court held thatthe board failed to show that they hadappropriate measures put in place.Furthermore, the damages caused to thestudent were foreseeable.
Following the second incident in thewashroom, the school board had taken stepsto protect the safety of the student. The Courthighlighted that the school board had failed totake those steps before. Overall, there wereseveral complaints by the parents, and thepolicies and measures in place at the schoolwere insufficient to protect the girl. There wasno policy on harassment at the school and nodirective to teachers to deal with harassmentand bullying. The unisex washrooms wereproblematic and specific measures needed tobe in place such as surveillance of this area.The school could have foreseen that theincidents would continue, and that thesituation would escalate. Furthermore, thedeparture of one of the boys from the schooldid not render the situation unforeseeable asthere were other boys involved.
The Court highlighted the measures taken bythe school board, although these measureswere implemented after the incidents hadtaken place. The Vice Principal arranged tomeet with the student every day to ensurethat everything was going well, however thestudent did not come back to school after thelast incident. The Vice Principal alsocommunicated with community police toprovide presentations on aggression andsexual intimidation.
The girl was claiming $50,000 in damages forstress, psychological disorders, and loss ofenjoyment of life. Some medical notes wereprovided; however, there was no evidence of medical treatment from the period ofSeptember 2010 to June 2011. Furthermore,while some impressions of Post-TraumaticStress Disorder (PTSD) were noted, there wasno formal diagnosis.
The Court also examined the issue ofcausation and whether the bullying andharassment caused the student to ultimatelyleave school. The student had some previousabsences prior to the incidents, and hersymptoms of stress might have been tied toother causes. The Court awarded the student$10,000 noting the gaps in the medicalevidence and the issues with causation.
This judgment is a caution to school boardsthat appropriate and sufficient measuresneed to be in place to address bullying andharassment in schools and that suchbehaviours must be taken seriously andinvolving a pro-active whole school approach.
Ontario Superior Court of Justice recognizes new privacy tort of public disclosure
In Jane Doe 464533 v. N.D. (2016 ONSC 541),the Ontario Superior Court of Justice recognizedthe tort of "public disclosure of private facts" andexpanded the scope of privacy protection inCanadian common law. The Defendant, thePlaintiff's ex-boyfriend, had posted an intimatevideo of her on a pornography website withouther knowledge or consent. The video wasavailable online for approximately three weeksand was viewed by their social circle. ThePlaintiff experienced emotional devastation andserious depression in the aftermath of theincident.
The Plaintiff brought a default judgment motionfor compensatory and punitive damages, as wellas a permanent injunction to prevent any furthersimilar conduct by the Defendant. JusticeStinson found that established and developedlegal grounds supported granting civil recourse for individuals who suffer from harm arising fromthis type of misconduct. Justice Stinsonexamined the tort of intrusion upon seclusionrecognized by the Ontario Court of Appeal inJones v. Tsige (2012 ONCA 32), as well as thecommon law privacy torts in the United States.Justice Stinson found support in Canadian andAmerican jurisprudence for the introduction andapplication of the tort of public disclosure in thiscase.
The Plaintiff established a cause of action forbreach of confidence, intentional infliction ofmental distress, and most importantly, invasionof privacy. The Court found that it wasappropriate to infer that the Defendant actedwith malice, and it was clearly foreseeable thathis conduct would cause harm.The Court set out the elements of the tort ofpublic disclosure of private facts, as follows: Onewho gives publicity to a matter concerning theprivate life of another is subject to liability to theother for invasion of the other's privacy, if thematter publicized or the act of the publication
(a) would be highly offensive to a reasonableperson, and
(b) is not of legitimate concern to the public.
Ultimately, the Court held that a reasonableperson would find that the Defendant's actionsof posting an intimate video of the Plaintiff onthe internet would be making public an aspectof the private life of the Plaintiff, and that areasonable person would find that disclosure tobe highly offensive.
The Court concluded that to permit an individualwho was confidentially entrusted with intimateimages to intentionally reveal them via theInternet without legal recourse would leave agap in available legal remedies. The Plaintiff wasawarded general damages of $50,000,aggravated damages of $25,000, punitivedamages of $25,000, plus full indemnity costs.She was also granted injunctive relief.
This new tort may have implications for schoolboards, such as in cases involving disclosure ofinformation about the private life of students oremployees.
BCHRT finds taxi driver had legitimate reasons to refuse to transport guide dog
McCreath v. Victoria Taxi (2015 BCHRT 153)was a case dealing with a taxi driver whorefused to transport a legally blind man and hisguide dog due to phobia of dogs and animalallergies. Graeme McCreath filed a complaintwith the British Columbia Human Rights Tribunal(Tribunal) alleging discrimination in the provisionof services available to the public due to hisphysical disability. McCreath also claimed thatcab drivers are dishonest when they claimsevere allergies, since the real issue is that theydo not want the dogs in the cabs.
McCreath testified that on the evening of July14, 2014, he called Victoria Taxi for a cab to bedispatched to pick him up along with somefriends. The cab company's dispatcher was nottold that the passenger would have a guide dog.Once the driver arrived and refused to transportthe guide dog, an alternate driver was called andarrived within a minute or two to pick upMcCreath.
Victoria Taxi had an exception policy that when ataxi driver filed a certificate signed by a medicaldoctor, attesting to a specific medical conditionrelated to an animal, that driver would beexempted from accepting taxi fares involving thetransport of animals. The medical certificate iskept on file and is required to be renewedannually.
Furthermore, when a person calling a cab tellsthe dispatch that they will be travelling with ananimal, or when the person has special needssuch as requiring lifting for a wheelchair, a “tripremark” is made by the dispatcher and theneeds of the customer are noted. An appropriatedriver is dispatched, taking into account anyexception policy that may apply.
In this Application, the only evidence providedfor by the cab driver was a doctor's note datedfive months after the incident, excusing him“from all contact with any dog for medical reasons.” McCreath argued that this doctor’snote is vague and general, dating five monthsafter the incident, and that there was nodoctor’s note submitted at the time of theincident. Victoria Taxi stated that this medicalcertificate represented a renewal of an earliermedical certificate on file for the taxi driver.Although the earlier note was not introduced intoevidence, the Tribunal found that the allergy wassubstantiated, in any event, by the later medicalnote.
McCreath also argued that this exception policymeant that 38 percent of Victoria Taxi driverswould be unavailable to service people withguide dogs, resulting in considerably longer waittimes. The Tribunal found that out of a total of225 lease operators or registered owner driversof Victoria Taxi, only 15 of those had notedexceptions for allergies, and that it would beunlikely for all 15 of those drivers to be workingat the same time.
McCreath argued that the cab company shouldhave considered solutions such as installingbarriers around its drivers or asking them totake allergy medication. The Tribunal stated thatthese solutions were "untenable". McCreath alsoobjected to the suggestion that he needed toinform the dispatcher about his dog when hecalled for a cab, but the Tribunal stated thatMcCreath "cannot expect to be accommodated ifhe chooses not to ask for an accommodation".
The Tribunal found that McCreath hadestablished a prima facie case of discrimination.He had a physical disability, he suffered from anadverse impact when he was denied a ride bythe taxi driver, and he was denied the ridebecause he was accompanied by his guide dog.The burden then shifted to Victoria Taxi toestablish a bona fide reasonable justification forits treatment of McCreath. The Tribunal foundthat while Victoria Taxi must accommodate theneeds of blind passengers, it also has a duty toconsider the health of its drivers since allergiescan qualify as a physical disability under the B.C.Human Rights Code (R.S.B.C. 1996, c. 210, asamended). The taxi company's policy of allowingdrivers with allergies to decline fares withservice animals strikes a balance between therights of the physically disabled employee to asafe and healthy working environment, and the rights of physically disabled passengers to haveaccess to services.
This case highlights that discriminatorybehaviour of service providers can be justified ifthere is an appropriate balancing of the rights ofthe stakeholders, such as the rights ofemployees of a cab company and those ofpassengers with disabilities. The principles canbe applicable to the education sector.
School board requests OSR for response to human rights application
In S.L. v. York Region District School Board(2015 HRTO 1642), the York Region DistrictSchool Board (Board) brought a Request forOrder During Proceedings (RFOP) seekingwritten consent to access the Applicant's OntarioStudent Record (OSR) in order to prepare itsResponse to the Human Rights Application. TheBoard also sought access to a psychoeducational assessment and relateddocuments.
The Applicant argued that while the RespondentBoard could access the OSR, he objected to theBoard's counsel accessing the record. TheApplicant argued that the disclosure to theBoard's counsel would somehow violate theApplicant's privacy rights. The Ontario HumanRights Tribunal (Tribunal) stated that counsel issubject to the same restrictions in regard todisclosure of any documents that the party, theBoard, would be subject to.
The Applicant argued that the Tribunal hasfound requests for access to an OSR in the earlystages of an Application to be premature. InCampbell v. Toronto District School Board (2010HRTO 463), the Tribunal stated that the generalapproach regarding disclosure and exchange ofdocumentation is that there is no obligation toexchange arguably relevant documents amongthe parties until a hearing date is confirmed.
The student was alleging discrimination withrespect to education because of disabilitycontrary to the Human Rights Code (R.S.O.1990, c. H.19, as amended), more specificallythat the Applicant's academic progress was hindered by a failure to properly accommodate adisability. The Applicant suggested that theBoard and its counsel could rely on otherinformation that would be sufficient for thepreparation of the Response. The Tribunalstated:
"The OSR clearly contains documents that arenot only relevant, but essential to anunderstanding of the nature of theaccommodations that were provided, whetherthe academic progress was in fact hindered,what accommodations were provided, andwhether they were appropriate."
Furthermore, the Tribunal explained that theOSR is a unique document because it isprivileged and its uses are limited by virtue ofthe definition of "record" in section 266 of theEducation Act (R.S.O. 1990, c. E.2). However,the OSR is in the physical control of the schoolboard, and it is referred to on a regular basis inproviding education services. The Tribunalconcluded:
"In my view, when an Application includesallegations of failure to accommodate astudent or allegations that relate to astudent's academic progress, in the absenceof exceptional circumstances, there is noprincipled reason for an applicant to withholdconsent to allow the respondent to access theOSR so that it can provide a full Response tothe Application."
The Tribunal held that the Board's counsel should be able to use the Applicant's OSR in
order to respond to the Application, and only forthe purposes of the Application. The Tribunaldenied the Board's request for access tomedical records as being premature. The ViceChair ordered that the Applicant advise whetherhe gives consent to the Respondent to allow it toaccess the Applicant’s OSR for the purpose ofresponding to the Application. If the Applicantdoes not consent, the Application may bedismissed as an abuse of process.
This is a change in the Tribunal's practice, asprevious decisions suggested written consentwas not needed until the documentarydisclosure stage, and not at the initial stage ofproviding a Response to the Application.