Ontario master questions state of jurisprudence on OSR privilege

On January 22nd, Master Muir of the Ontario Superior Court of Justice held that answers to discovery questions that would disclose information contained in the Ontario Student Records of non-party students should not be answered based on the statutory privilege in section 266 of the Education Act.

Master Muir held that he was bound by Pandremenos v Riverdale Collegiate Institute, [1998] OJ No 1480 (GD), but not without expressly stating his disagreement with an interpretation of section 266 that precludes access to information contained in an OSR (as opposed to an OSR itself). He said:

In my view, the relevant portions of the Act make it clear that it is the OSR file itself that is privileged and not necessarily all of the information that may find its way into the OSR. Section 266(2) of the Act creates the privilege. It provides that “a record [that is, the OSR] is privileged” [emphasis added]. It says nothing about the specific information that section 265(1)(d) of the Act requires the principal to collect for inclusion in the OSR. This is to be contrasted with sections 266(9) and 266(10) of the Act. Section 266(9) states that “no person shall be required in any trial or other proceeding to give evidence in respect of the content of a record” [emphasis added]. Section 266(10) provides that “every person shall preserve secrecy in respect of the content of a record” [emphasis added]. It is noteworthy that the word “content” is absent from section 266(2).

In my view, if the legislature had intended to extend the privilege to any piece of information that may end up in an OSR (such as something as basic as a student’s address or date of birth, for example) it would have used much broader language that would clearly extend the privilege to the contents and to all information that may be found in an OSR. In my view, the interpretation suggested by Northmount could lead to an absurd situation where certain basic information about an individual could never be disclosed or introduced into evidence in a civil proceeding simply because he or she happens to be a student to whom the Act applies and the information in question can also be found in his or her OSR.

Master Muir noted other decisions by the Court in which discovery was allowed because the information at issue was not required to be contained in the OSR by the Ministry’s guideline. Master Muir said these decisions are distinguishable from cases in which the information at issue is required to be contained in the OSR as in Pandremenos and the matter before him.

Robinson v Northmount School for Boys, 2013 ONSC 1028 (CanLII).

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