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  Toronto District School Board v. Elementary Teachers'
Federation of Ontario (Brown Grievance)

IN THE MATTER OF an arbitration

Between
Toronto District School Board (the "Board" or the
"Employer"), and
Elementary Teachers' Federation of Ontario (the
"Federation")

Grievances of Courtney Brown (dated December 19,
2005 and January 24, 2006)

[2006] O.L.A.A. No. 485

Ontario
Labour Arbitration
B. Herlich (Sole Arbitrator)

Heard: June 26 and August 2, 2006, by written
submissions.
Award: August 21, 2006.
(25 paras.)

Appearances:

Patricia G. Murray, Steven Talsky and Rose Clarke for the Employer.

Mark Wright, Bill Getty, John Smith, Doris Duni, Courtney Brown and Matt Siph for the Union.

Selwyn A. Pieters for J.A., a student.


AWARD

 1      Two grievances have been referred to me for determination. They each emerge, in essence, from the same series of events and, in particular, an altercation that took place between the grievor and a student, to whom we shall refer as "J.A.".

 2      In the first grievance, dated December 19, 2005, the Federation asserts:

The teacher [i.e. Courtney Brown also referred to as the "grievor"] was assaulted by a student [i.e. J.A.]. The Board did not provide adequate protection for the teacher and did not disclose to the staff that the student had a violent history.

 3      The grievance goes on to claim violations of numerous provisions of the collective agreement, including those related to Health and Safety and seeks various remedies.

 4      In the second grievance, dated January 24, 2006, the union claims that the grievor was disciplined without just cause.

 5      By letter dated January 20, 2006, the Board imposed a written disciplinary warning on the grievor. The grievor is alleged to have made an inappropriate homophobic remark to a student. In particular, it is alleged that he called J.A. a "batty boy" (which the Federation agrees is a derogatory Jamaican expression for a homosexual). The Federation acknowledges that the making of such a comment to a student would warrant the disciplinary response here imposed. However, the Federation denies that any such statement was made and therefore asserts that there was no cause for discipline in this case.

 6      As set out in my award dated June 8, 2006 in this matter, the Federation seeks an order directing the Board to produce the Ontario Student Record ("OSR") of J.A. Further to that decision, the parties and counsel for J.A. have been provided with and have availed themselves of a full opportunity to make written submissions on the question of whether I can or ought to order the production sought. I have now had the opportunity to review and consider those submissions.

 7      The submissions referred to a number of statutory provisions. The first of the two central provisions is found in section 266(2) of the Education Act:

A record is privileged for the information and use of supervisory officers and the principal and teachers of the school for the improvement of instruction of the pupil, and such record,


(a)

subject to subsections (2.1), (3), (5), (5.1), (5.2) and (5.3), is not available to any other person; and

(b)

except for the purposes of subsections (5), (5.1), (5.2) and (5.3), is not admissible in evidence for any purpose in any trial, inquest, inquiry, examination, hearing or other proceeding, except to prove the establishment, maintenance, retention or transfer of the record,


without the written permission of the parent or guardian of the pupil or, where the pupil is an adult, the written permission of the pupil.

 8      There was no issue that the "record" referred to is the OSR, that subsections (2.1), (3), (5), (5.1), (5.2) and (5.3) have no present application, and that the written permission contemplated by the section has not been provided.

 9      The other significant statutory provision is to be found in the Labour Relations Act in the following portions of section 48(12):

An arbitrator or the chair of an arbitration board, as the case may be, has power,


...

(b)

to require any party to produce documents or things that may be relevant to the matter and to do so before or during the hearing;


...

and an arbitrator or an arbitration board, as the case may be, has power,


(f)

to accept the oral or written evidence as the arbitrator or the arbitration board, as the case may be, in its discretion considers proper, whether admissible in a court of law or not;

 10      None of the cases filed by counsel for J.A, dealt with the issue before me (although, I do note that the decision of the Divisional Court in K.B. v. Toronto District School Board, 2006 CanLII 14411 (ON S.C.D.C.) suggests that with respect to an OSR which was part of the court's record accessible to the public:

Once the name and identifying information with respect to a pupil is removed from the OSR, the anonymous information being disclosed is consistent with the objectives of the Education Act.

 11      As I indicated in my previous decision in this matter, the parties have already agreed to preserve the anonymity of all students in these proceedings).

 12      Four prior arbitration decisions have considered the specific question of an arbitrator's authority to direct the production of an OSR. The Federation and the Board each filed the same four arbitration decisions: Windsor Board of Education, unreported, June 12, 1995 (Samuels); Ontario Public School Authority [2000] O.L.A.A. No. 857 (Roberts); Hastings and Prince Edwards District School Board (2000), 62 C.L.A.S. 193 (Knopf); and Re Toronto District School Board and Ontario Secondary School Teachers' Federation (2005), 144 L.A.C. (4th) 232 (Whitaker).

 13      In each of these cases, the arbitrator concluded that, notwithstanding the previously cited provision of the Education Act, an arbitrator exercising the powers conferred by the Labour Relations Act (and indeed, in the Windsor case, even without those explicit statutory powers) retains the jurisdiction to direct the production of an OSR in appropriate circumstances.

 14      Of course, these cases must be read for what they have decided and nothing more. The issue in each case, as before me, was whether an arbitrator has the authority to direct production of an OSR. (I note, in that regard, that although the issue in the Hastings case initially arose or was framed as one regarding the admissibility of documents, the arbitrator, having concluded that "nothing in the legislative scheme dictates that a pupil's record cannot be compelled to be produced by a tribunal such as a board of arbitration", specifically left open the question of what aspects of the OSR which were produced would then become admissible in evidence.)

 15      The wording of the Education Act privilege is broad - at least with respect to the disparate types of proceedings explicitly contemplated therein. The section is clear and specific, however, with respect to what it precludes: a record is not admissible in evidence. And as I have already indicated, none of the prior cases makes any determination with respect to an arbitrator's authority to admit an OSR in evidence in an arbitration proceeding. Neither is it clear to me that the prior cases can or should be relied upon to support the admissibility of an OSR in an arbitration proceeding. But I am not called upon to make such a determination.

 16      Whatever the impact of section 266(2) of the Education Act may be on an arbitrator's authority to "accept ... evidence as the arbitrator ... considers proper, whether admissible in a court of law or not" under section 48(12)(f) of the Labour Relations Act, the section does not explicitly address or curtail an arbitrator's authority to require a party to produce documents under section 48(12)(b). Thus, I am satisfied that I retain that authority.

 17      Having determined that I have the authority to do so, I turn now to whether I ought to exercise that authority in this case.

 18      Although the manner and consequences have varied, the arbitration awards cited have also been uniform with respect to a further aspect of their approach to production. In light of the statutory privilege set out in the Education Act, arbitrators have been vigilant in granting the orders sought only to the limited extent necessary in the circumstances of the case.

 19      The most recent manifestation of this prudence is found in the previous case involving this Board, supra. In that case, the arbitrator set out a novel procedure whereby an ex parte in camera hearing would be held - only the arbitrator and the employer were to attend to determine what portions of the OSR ought to be produced. While there might be a certain ascendancy in the prevalence of ex parte (or even secret) proceedings in other contexts, I am not persuaded that their entry into the labour relations realm ought to be welcomed or encouraged in anything but the most extreme sorts of circumstances which appear to attend their use. I am not persuaded that such an approach is either necessary or warranted in the instant case. However, neither am I persuaded that a simple and blanket order that the OSR be produced is appropriate.

 20      The Federation has advanced two bases for the arguable relevance of the OSR. First, in the context of the health and safety grievance, it asserts, as part of its case, that J.A. has been involved in prior violent incidents and that the clear expectation, given the nature of the OSR and its typical contents, is that such incidents would be the subject of some notation in the OSR. The Federation notes that this material may be relevant not so much for the truth of its content, but because it may serve to establish what information was in the possession of the Board at the time of J.A.'s transfer to the grievor's school.

 21      The second basis for the production of the OSR relates to credibility. I note that we have not been advised whether J.A. will be called to testify in these proceedings. Certainly, no such undertaking has been provided. In any event, the Federation asserts that given the central factual dispute in the discipline grievance - i.e. whether or not the grievor made the impugned comments - there is likely to be a significant issue of credibility in this case. The OSR should therefore be produced since its contents may be relevant to that issue.

 22      I am satisfied that the first ground establishes a basis to conclude that the information sought to be produced is arguably relevant to the proceedings. I am not persuaded, however, that the mere fact that there may be an issue of credibility with respect to a possible student witness gives rise to an automatic right to production of that student's OSR in advance of the hearing. In the absence of a firmer or more specific basis in the pleadings (i.e. in the relative evidentiary vacuum in which we are currently operating, at least in the assertions advanced by the parties), I am not persuaded that it is appropriate to order production of the OSR sought on this basis.

 23      Having regard to the foregoing, I hereby direct the Board to produce J.A.'s OSR only to the extent that it contains information related to events or behaviours (prior to J.A.'s arrival at the grievor's school) that potentially pose health and safety concerns, including risk of injury to other persons in the respondent's schools. This information is to be edited in a fashion to preserve the anonymity of all students.

 24      Any material produced to the Federation under the terms of this award is to be shared only with counsel, with the federation's litigation advisor and with the grievor. The material produced is not to be used by any of them for any purposes other than the instant proceedings.

 25      I am confident the parties will make every effort to implement my direction herein prior to the resumption of the hearing in this matter. However, if there are any residual issues regarding this award and its implementation, they may be dealt with when the hearing reconvenes on September 19, 2006.

QL Update:  20060825
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