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Gender Identity & Expression Added to Code

Gillian Tuck Kutarna, Guelph

On June 13, 2012 the Ontario Legislature unanimously approved Bill 33 ‘Toby’s Act (Right to be Free from Discrimination and Harassment Because of Gender Identity and Gender Expression) at its third reading.  Following Royal Assent, the Ontario Human Rights Code (the “Code”) will be amended to specify that every person in Ontario has a right to equal treatment without discrimination because of gender identity or gender expression, with respect to goods, services, and facilities, employment, accommodation, contracts, and vocational associations. 

The Code will also provide that every person has the right to be free from harassment with respect to employment and accommodation because of their gender expression, however, freedom from harassment with respect to services was not included. 

Ontario now joins the Northwest Territories, and most recently Manitoba, in protecting people whose gender identity differs from their assigned sex at birth.

Interestingly, the Ontario Ministry of Education’s ‘Equity and Inclusive Education Strategy’, released in April 2009, preceded the current Human Rights Code amendments, requiring all boards of education to address the rights of transgender students and staff.  The Ministry Strategy definition of ‘Diversity’ included the statement:

“The dimensions of diversity include, but are not limited to, ancestry, culture, ethnicity, gender, gender identity, language, physical, and intellectual ability, race, religion, sex, sexual orientation, and socio-economic status” (emphasis added).

and defined an “inclusive education” as:

“Education that is based on the principles of acceptance and inclusion of all students. Students see themselves reflected in their curriculum, their physical surroundings, and the broader environment, in which diversity is honoured and all individuals are respected.”

The Guidelines, Policy and Program to implement the Ministry’s four year strategy (2008 to 2012) included requirements that each board develop equitable and inclusive policies, programs and practices; curriculum such that all students see themselves reflected in their studies; and staff hiring, promotion and professional development which advanced the goals of the Strategy.

The amended Code prescribes that people must be free from discrimination on the basis of gender identity and gender expression, among other grounds explicitly delineated, however, the Ministry of Education has gone farther to require school boards to undertake positive and proscribed steps to ensure that all students and staff are not only protected, but feel included and welcomed in their educational environment. 

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School Investigation Has Negative Impact on College Decision

Nadya Tymochenko, Toronto

In a recent decision by the Ontario College of Teachers (the “College”) regarding whether discipline should be imposed on an occasional teacher (the “Member”) who had allegedly (1) struck the upper arm of a female student with her hand (2) struck that student in the chest with her hand, and (3) grabbed and/or squeezed the arm of another female student, the College found that the allegations of misconduct were not proven, and the matter was dismissed. 

Of particular interest in this case are the rather lengthy reasons provided by the College addressing the investigation conducted by the school board into the allegations, which were denied by the teacher.

Both the school board through the school and the Children’s Aid Society (the "CAS”) conducted investigations into the allegations. The principal of the school, Mr. O’Neil, assigned a vice-principal, Ms. Major, who was a .25 vice-principal and taught for .75 of the week, to conduct the investigation by interviewing the students of the class.  Although the CAS and the school insisted that they conducted independent investigations, both were privy to the results of the other, and the CAS did consider the school administration’s assessment of the credibility of the students.

The College commented on the way in which the allegations were first addressed by the school administration stating:

“The fact that Mr. O’Neil was not concerned enough to call parents immediately, nor did he book a supply teacher to take over Ms. Major’s classes for the next day, so that the interviews could be properly conducted, caused the Committee to lean towards the Member’s assertion that he did not appear to be overly concerned at that point.  Although Principal O’Neil confirms that they wanted to make certain that the interview process was ‘fair and unbiased’, the process that unfolded may not have achieved that goal.”

The issues identified by the College with respect to the investigation included that the principal did not ask students if they had witnessed the incident or simply heard about it, nor was there any attempt to ascertain where the students were located at the various relevant times.  The College also found it problematic that the principal did not personally interview all of the students.

At issue also was the fact that the vice-principal, Ms. Major, had to interview students during her spare bits of time during the day creating problems with the process, such as there being a lack of time and spacing between interviews, as well as a failure to ensure that the students did not speak to each other.  While Ms. Major did not have concerns about students sharing information, arguing that there was no way to prevent it, the College did have concerns.

The College identified other issues with the investigation conducted by the school, such as an inconsistency in language about the “hits”, which were sometimes being referred to as ‘smacks’ and other times as ‘squeezes’.  Also, there was inconsistency about the number of hits reported, the manner in which student notes were written, and whether or not the students’ written accounts had been supplemented.

The College also identified that Ms. Major did not determine whether or why a student might make a false statement or whether or not the students were discussing the incident before the investigation began.  As well, it was of concern to the College that Ms. Major made assessments of credibility based on her prior involvement with certain students.

The notes taken as part of the school’s investigation were also identified to have problems: they did not identify when they were made or their authorship, it was not clear if students made written statements independently, and it was not clear whether students wrote statements before being interviewed, during their interview or after their interview.  While there were photos taken by the vice-principal on her smart phone of the “marks” left on the student’s arm from the alleged hit, the marks were not discernable in the photos, nor were the photos tagged with the date and time they were taken, therefore, the photos were of little use.

The College commented that,

“Although well intentioned in undertaking her investigation, Ms. Major was inexperienced in conducting this kind of investigation.  In the end, her workload, lack of experience and the time constraints undermined the quality of the evidence collected.  Therefore, in spite of the well intentioned effort, ultimately the investigation conducted by Ms. Major was flawed.”

The College did not reserve all of its criticism for the school administrators, it also criticized the investigation conducted by the CAS, indicating that the investigator relied heavily on the opinions of the principal and vice-principal.

While the hearing process before the College Committee charged to determine whether or not a member is to be disciplined is arguably the most important step in the discipline process of the College, the College did emphasize the importance of the investigation conducted at the school level, stating:

“The investigation and its quality were significant in establishing the issue of credibility.  The review of evidence is such that it must satisfy the requirement of clarity, consistency and cogency.  This is necessary in determining a matter based on the balance of probabilities standard of proof.”

School administrators often lack training and opportunities to investigate serious matters leading to discipline of either a student or teacher.  School boards choosing to rely on school administrators to conduct investigations of staff matters need to ensure that the administrator is trained and experienced in conducting investigations.  If a matter might lead to a staff member being disciplined or terminated or a student being expelled, it must be given a priority and a plan for investigation should be created.  While trite to say, once created, the plan should be followed.  Despite the fact that each incident is unique, there are good practices that should be applied consistently by all administrators conducting investigations and it is important that administrators have both in-depth training and experience to assist them.  When an administrator lacks training and/or experience, school boards should consider assigning the duty to anther administrator or a third party professional.

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‘Responsive Records’ Under FIPPA Can Include Deleted Emails

Gillian Tuck Kutarna, Guelph

The Information and Privacy Commissioner (“IPC”) recently upheld an appeal against Carleton University, overturning the University’s response to a request under the Freedom of Information and Protection of Privacy Act refusing to produce emails which had been deleted. 

The IPC held that, since the University had the ability to search for the deleted emails on its server, it should be ordered to do so.

The IPC referred to section 24 of the Act, which requires a person making a request for information to do so in writing, and provide enough detail that the record can be found with reasonable effort.  Where an insufficiently detailed description has been provided, the Commission reinforced that an institution has a positive obligation to assist the person making the request in curing any defects.

In the Carleton University case, the primary issue for the appellant involved emails sent and received by a specific professor.  The University submitted that this professor initially provided responsive records, but when contacted by the appellant about the existence of additional records, he advised that his computer had “crashed” and he had lost all his emails, so that it would be impossible for him to confirm anything further.

Carleton University acknowledged that it was likely that its Communication and Computing Service (CCS) could retrieve the lost emails from the server.  However, they took the position that the appellant’s request for “any and all records” pertaining to him which were “held by” the Department of Law did not include deleted or lost emails, as these were no longer “held” by that department, but were instead with CCS. The IPC rejected this argument, along with the University’s suggestion that if the appellant sought retrievable CCS records, he should have to submit a second request specifically naming ‘deleted emails’.

What should be noted is that, while an institution may charge a fee for the cost of producing what has been requested, the fees do not always allow for full recovery of the cost, and fee appeals brought by requesters are frequently upheld by the IPC. We might speculate that, in resisting the requester’s appeal for more extensive records, the University may have been, at least in part, influenced by the expense involved.

The IPC nevertheless found that Carlton University’s submissions reflected an unreasonable and narrow interpretation of the Act and cited previous decisions as confirming that an institution may not unilaterally limit the scope of its search for records. Rather, there is an obligation under the Act to adopt a liberal interpretation of a request, assist the requesting party as needed, and resolve any ambiguity in the requester’s favour.  

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