Toronto ⎯ 36 Toronto St. Suite 920 Toronto ON M5C 2C5 416-367-2900 fax: 416-367-2791 K LLP Mississauga ⎯ C 100 Matheson Blvd. E. Suite 104 Mississauga ON L4Z 2G7 Keel Cottrelle LLP 905-890-7700 fax: 905-890-8006 Barristers & Solicitors Education Law Newsletter — March 2009 — ⎯⎯⎯⎯⎯⎯⎯⎯⎯⎯ IN THIS ISSUE ⎯ Human Rights Human Rights Tribunal Tribunal Issues Issues Seminal Decision on Evidentiary Issues page 1 Seminal Decision on Trustee Removed Evidentiary Issues for Conflict of Interest page 4 The Ontario Human Rights Tribunal (the “Tribunal”) issued an Interim Decision on No Psychological Damage five issues in Persaud v. Toronto District Found in Discipline Case page 6 School Board, [2008] O.H.R.T.D. No. 90 (“Persaud”). The Complainant, Andrew Courts Affirm Principles for Persaud, filed a complaint against the Disclosure of Student Records page 7 Toronto District School Board (the “Board”) alleging discrimination on the basis of race Court Refuses to Intervene arising from discipline related to alleged in School Closing page 8 plagiarism and other issues when he was a student at Vaughan Road Academy (“VRA”). The parties to the complaint are Case Note page 11 the Complainant, represented by his own counsel; the Ontario Human Rights Professional Development Corner page 12 Commission (the “Commission”); and the Respondent Board. 1 Keel Cottrelle llp — Education Law Newsletter — March 2009 The five issues addressed by the Interim and analysis, and that he would be qualified Decision were: (1) objections to documents as an expert witness. However, the Tribunal by the parties; (2) the Commission’s found that Dr. Henry’s proposed evidence proposed expert evidence by Dr. Frances would not be relevant, because Dr. Henry’s Henry on race theory and analysis; (3) the evidence would be focussed largely on the Respondent Board’s proposed evidence by a experiences of Black students and anti- former Principal from VRA; (4) whether the Black racism, but the Complainant had Board’s proposed evidence by two police already testified that he did not self-identify officers would be barred by the provisions as a “Black” student, but rather as a of the Youth Criminal Justice Act (“YCJA”); “Guyanese Indian” of “brown” skin colour. and (5) the Board’s request for a sealing The Tribunal did not accept the order and a publication ban. Commission’s submissions that “the Documents experience of an individual that self- The Tribunal made a number of rulings identifies as brown is similar to that of a student who self-identifies as black” and that regarding documents to be relied on during “to make such a colour based distinction the proceeding. The Tribunal struck specific documents from the parties’ briefs based on can be characterised as Colourism, which is its earlier decision that events prior to the a key component in defining a racist dynamic” (para. 11). The Tribunal held that Complainant’s attendance at VRA were not the Commission had provided no support for relevant to the matters at issue in the these submissions, even including the proceeding. The Tribunal reserved its anticipated evidence of Dr. Henry that was decision on the issue of admissibility of the submitted to the Tribunal. In addition, the forensic report of a proposed expert witness, Tribunal noted that the Commission’s pending hearing evidence from a Chemistry submissions on this point were inconsistent teacher to be called by the Board, and also with the Commission’s own Policy and noted the Commission’s objection to the Guidelines on Racism and Racial proposed evidence. Discrimination. In response to the Commission’s objection With respect to the “necessary” prong of the to specific documents in the Board’s brief, expert evidence test, the Tribunal found that the Board agreed not to enter some of these when Dr. Henry’s evidence was stripped of documents at this stage of the proceeding so its focus on Black students, it would provide the Tribunal found it not necessary to rule information on the basic concepts and on admissibility. However, the Tribunal did dynamics of racism, which were not rule that the Board could not admit into necessary to assist the Tribunal as the trier evidence the Commission’s section 36 Case of fact. While the Tribunal declined to hear Analysis Report, its Amended Report, or the expert evidence from Dr. Henry, the Board’s responses to these Reports, although Tribunal allowed either the Commission or they could be considered if there was a Complainant to submit any relevant motion for costs later in the proceedings. materials on race analysis or racism in Expert Evidence education, other than case law, legal articles The Commission sought to introduce the or literature, for the Tribunal’s consideration expert evidence of Dr. Frances Henry. The prior to the close of their case. Tribunal found that Dr. Henry was a renowned scholar in the areas of race theory 2 Keel Cottrelle llp — Education Law Newsletter — March 2009 Board Witness evidence of the brother’s involvement with the police was being given in violation of The Board proposed to call as a witness the the YCJA. Because the Complainant’s former Principal of VRA, who was at the brother was 18 years old (and therefore an school in the two years preceding the adult) when testifying, the Tribunal held that matters at issue in the proceeding. The pursuant to s. 110(3) of the YCJA, he could Board sought to call this witness to testify choose to publish any information that about certain issues related to the would identify him as having been dealt Complainant, including the admitted with under the YCJA. However, because the plagiarism of a Geography assignment, as Board intended to call the two police well as interactions with his mother, and the officers to testify in response to the former Principal’s opinions about the Complainant’s brother’s evidence and Complainant and his mother that were allegations of racial discrimination, the formed as a result. The former Principal Tribunal invited Complainant’s counsel to would also give evidence about the make submissions as to whether this distribution of master keys during the years proposed evidence would be in violation of when she was Principal. The Tribunal found the YCJA. Complainant’s counsel took the none of this proposed evidence to be position that the police officers’ proposed relevant to determine the matters at issue in evidence would violate the YCJA, and that the current proceeding. As a result, the an order from a Youth Court Judge was Tribunal declined to hear evidence from the required for the Board to put this evidence former Principal. before the Tribunal. The Board took the Police Evidence position that there would be no violation of The Police evidence relates to the issue in the YCJA. the Complaint of a master key, which was The Tribunal’s analysis of the issue was found in the possession of a student on the based on: section 110(1) prohibiting Yearbook Committee in the 2004-2005 publication of a young person if it would school year. The Tribunal was required to identify him/her being dealt with under the rule on the issue of whether evidence given YCJA; 110(3) allowing a person 18 or older by the police regarding their involvement to cause information identifying him or her with the Complainant’s brother at the school being dealt with under the YCJA to be involving the master key issue would be in published; and, s. 188(1) restricting access violation of the YCJA. to a record identifying a young person dealt A master key was found in the possession of with pursuant to the YCJA. a student on the Yearbook Committee in the The Tribunal expressed doubt that the 2004-05 school year. There was no dispute proposed evidence of the police officers fell that this student obtained the key from the under the scope of the YCJA, since the Complainant’s brother. There was also no Complainant’s brother had never been dispute that, after the Complainant’s brother charged under the Act. However, without was questioned by school administrators, he making a finding on this issue, the Tribunal was also questioned by two police officers at held that, as an adult, the Complainant’s the school. brother could cause the information about During the Commission’s examination-in- his dealings with the police to be published. chief of the Complainant’s brother, counsel By testifying about these dealings and for the Complainant raised an objection that putting them in issue in the case before the Tribunal, he had caused to be published any 3 Keel Cottrelle llp — Education Law Newsletter — March 2009 relevant evidence required for the Board to Tribunal also gave the Board an opportunity respond to the allegations. The Tribunal to identify any documents submitted into also rejected the argument of Complainant’s evidence that formed part of an OSR, not the counsel that s. 110(3) of the YCJA restricts OSR of the Complainant, to enable the publication of information to just a young Tribunal to re-consider the Board’s request person’s name or identity. The Tribunal in a specific circumstance. noted that no authority was cited for that General Comments proposition. Of particular significance in this case are the Publication Ban decisions relating to expert evidence and the The Board sought a publication ban and YCJA. While the circumstances of each case order sealing the record related to any are different, this decision does provide evidence regarding academic or discipline some insight into issues of admissibility and information related to students other than the confidentiality. Complainant.