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Case Name:
  K.B. v. Toronto District School Board

Between
K.B and T.M., and
Toronto District School Board et al.

[2006] O.J. No. 1026
Court File No. 55/06

Ontario Superior Court of Justice
Divisional Court - Toronto, Ontario
G.J. Epstein J.

Heard: February 27, 2006.
Judgment: March 2, 2006.
(17 paras.)

Civil procedure Parties Intervenors Amicus curiae The Canadian Foundation for Children, Youth and the Law, applied for leave to intervene as a friend of the Court in this judicial review proceeding of a decision by the respondent to transfer suspended students to another school once the suspensions were completed The motion to intervene was based on the Foundation's position that the subject matter was of public interest and one where the Foundation could make a useful contribution The respondents opposed the motion on the basis of privacy concerns Application allowed, and leave to intervene granted, on the condition that the Foundation not have access to any evidence Although the position of the Foundation may generally be aligned with the position of the applicants, it could make a "useful contribution" to the argument of the issues before the court, which were of public interest Further, with the imposition of the condition that the Foundation not have access to any evidence, its intervention would not cause injustice to anyone involved in the judicial review proceeding Ontario Rules of Civil Procedure, Rule 13.03.

Statutes, Regulations and Rules Cited:

Education Act, R.S.O. 1990, c. E.2, s. 265(1)(m), s. 266, s. 305

Ontario Rules of Civil Procedure, Rule 13.03

Youth Criminal Justice Act, S.C. 2002, c. 1,

Counsel:

Martha Mackinnon, for the Moving Party

Thomas McRae, for the Responding Parties, Selwyn Pieters, for T.M.


ENDORSEMENT

 1      G.J. EPSTEIN J. (endorsement): The Canadian Foundation for Children, Youth and the Law seeks leave to intervene as a friend of the Court in this proceeding. The motion, brought under Rule 13.03 is based on the Foundation's position that the subject matter of the judicial review is of public interest and one in which the Foundation can make a useful contribution.

 2      Only the respondents oppose the motion. They do so primarily on the basis of concerns over the privacy of those involved in this matter.

 3      The issue is whether the Foundation ought to be granted standing in the judicial review as a friend of the court for the purpose of rendering assistance in light of the privacy interests at stake.

The Proceeding

 4      On consent, the court file has been sealed by the order of Perrell J. on February 1, 2006. Only parties to this application and the application and the Attorneys General of Ontario and Canada are exempt from the order.

 5      What is public and known to me is that the issue in the underlying proceeding is whether a principal and school board can use powers under ss. 265 (1)(m) and 305 of the Education Act to transfer students to another school once the student's suspensions have been completed and they would otherwise return to their home school.

 6      The judicial review also concerns whether the principal and the school board acted fairly when they used the provisions to transfer an exceptional student for safety reasons.

 7      While it is not possible to expand upon the background to the application for judicial review, there is really no issue over the following:

1.

The Foundation operates a community legal clinic under the name "Justice for Children and Youth" that specializes in children's law. Its mission statement includes assisting children in obtaining fair access to education resources.

2.

The clinic provides direct representation to low income young people and has extensive expertise in representing children in the education context.

3.

The resolution of the issues raised in this judicial review potentially has far reaching consequences for the broad community of students and their families.

4.

The Foundation has been granted intervener status in a number of cases before this court, the Court of Appeal and the Supreme Court of Canada.

Analysis

 8      When considering whether to permit intervention on a public interest basis, the following matters should be considered; the nature of the case, the issues that arise and the likelihood of the proposed intervener being able to make a useful contribution to the resolution of the matter without causing injustice to the immediate parties. See: Doe v. Ontario (Information and Privacy Commissioner) (1991), 87 D.L.R. (4th) 348 (Ont. Div. Ct.).

 9      As I have indicated, there is really no issue over the fact that this proceeding raises issues of interest to the general public and that the proposed intervener has the ability and perhaps unique opportunity to make a contribution to the court's understanding of these broader issues.

 10      The real issue is that of the privacy. The sealing order was made because of concerns arising under young offender legislation. In this case where school boards are involved there is an additional concern arising from the confidentiality of pupil information.

 11      The Youth Criminal Justice Act, S.C. 2002, c. 1, contains provisions that concern the protection of the identity and the personal information concerning not only young persons charged with an offence, but also young persons who are victims of or witnesses to such offences. The nature of this matter concerns the safety of victims and witnesses to offences whose personal information is protected under that Act.

 12      The matter also concerns pupil information of the victims and witnesses that is protected under s. 266 of the Education Act, R.S.O. 1990, c. E.2.

 13      The respondents submit that while they cannot, in principle, argue that the Foundation should not be granted the relief sought, they must oppose the motion due to the impact the order would have on privacy interests. While the applicants have consented to the intervention, others, such as the witnesses and the victim, have not. Counsel for the respondents adds that it would be impossible for the Foundation to have access to any of the evidence without violation these privacy interests.

 14      Counsel for the proposed intervener submits that her client can and would be willing to participate in the judicial review on the basis that it have no access to any evidence and that it not be permitted to be in the courtroom when the matter is argued until the counsel for the applicants and respondents have argued all issues other than those raised by the Foundation.

 15      In my view the order for leave to intervene should be granted on the condition that the Foundation have no access or exposure to any evidence. I am satisfied that although the position of the Foundation may generally be aligned with the position of the applicants, it can make a "useful contribution" to the argument of the issues before the court. Further, I am satisfied that with the condition I have decided to impose, the Foundation's intervention will not cause injustice to anyone involved in this proceeding.

 16      Accordingly, I grant leave to the Foundation to intervene as a friend of the court on the following conditions:

1.

that it be bound by the terms of the order of Perrell J.

2.

that is not have any access to any evidence and not be present in court during the period when any submissions are made wherein evidence is or may be referred to;

3.

that is will deliver a factum, not to exceed 20 pages, in a timely fashion;

4.

that the time allocated for its oral argument be fixed at 20 minutes subject to the discretion of the panel; and

5.

that it not seek costs.

 17      There will be no costs of this motion.

G.J. EPSTEIN J.

QL UPDATE:  20060331 ci/cp/t/qw/qlpmd/qlrpv/qlrme/qlhcs

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