HRTO dismisses complaint that school board used Ontario Student Record in its defence

14 Oct

On September 19th, the Human Rights Tribunal of Ontario dismissed an application that alleged a school board breached the Ontario Human Rights Code by using an Ontario Student Record in defence of a prior application.

Section 266 of the Ontario Education Act deems an OSR to be “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.” It also explicitly states that an OSR is not admissible in evidence without parental consent.

In the prior application (which involved the same parties), the board had used the OSR in its response. This led the applicant to seek an order prohibiting the respondent from further relying on the OSR. The Tribunal denied the applicant’s request and, instead, held that it would dismiss the application as an abuse of process unless the applicant provided a consent. The applicant withdrew its application and filed a subsequent application that directly attacked the board’s use of the OSR, which the applicant alleged was discriminatory and a reprisal.

The Tribunal held that the board’s actions were absolutely privileged. It said:

The entire Application in this case is based on statements made in the respondent’s pleadings and the pre-hearing disclosure of documents to the applicant by the respondent in the course of a proceeding before the Tribunal. The respondent’s impugned statements and actions were thus clearly made and/or performed on occasions of absolute privilege. The applicant therefore cannot rely on them to found a claim under the Code. The Application must be dismissed on this basis alone.

The Tribunal also held that there was no reasonable prospect that the applicant would succeed on the merits.

GA v York Region District School Board, 2012 HRTO 1787 (CanLII).

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