Case Report – Records ordered to be produced despite arguments made about youth privacy

On May 5th, the Ontario Superior Court of Justice ordered parts of a student’s Ontario Student Record and various records in custody of the police to be disclosed to a plaintiff in a civil action.

The lawsuit related to a violent incident by one grade seven student against another, who later sued the offending student’s guardian and others for an alleged lack of supervision.

In ordering the offending student’s OSR to be disclosed, the Court explained how the statutory privilege in section 266 of the Education Act has not been interpreted as a barrier to production, in particular when the student or his or her guardian is a party.

In my view [three cases] establish the principle that where a person’s school record is relevant and producible in accordance with Rule 30.10, and a party is either the student or the parent or guardian of the student, then the court should order the student (if an adult) or the parent or guardian to sign a consent and take all reasonable steps to have the record holder produce the record for the purpose of the litigation.

Regarding the police records, the offending student was never prosecuted, so the police did not oppose the motion and took the position that the Wagg screening process need not be engaged. The Children’s Lawyer argued, however, that records should not be produced because the police had no right to obtain any statement from the offending student because they were not investigating any offence and because the child was not afforded a right to counsel and to have a guardian present. The Court rejected this argument, stating:

The general common law rule is that evidence in civil cases is admissible regardless of how it is obtained. In criminal cases, this rule is overridden by the Charter where the evidence is obtained by the state. There appears to be an evolving concept that the court has the discretion to exclude evidence in civil cases if it is obtained in breach of the Charter. These propositions are discussed in Paciocco and Stuesser, The Law of Evidence, 4th ed., Irwin Law, 2005 at p. 355 ff.

Although making this statement, the Court held that, in any event, the admissibility of evidence should be determined at trial and potential inadmissibility is not a barrier to production. This is the same principle that underlies the limiting interpretation of section 266.

Lee v. McNeil, 2008 CanLII 20984 (ON S.C.).

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