K.B. et al. v. Toronto District School Board et al., (2006) 211 O.A.C. 75 (DC)

• Judge: Chapnik, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 28, 2006
• Jurisdiction: Ontario
• Citations: (2006), 211 O.A.C. 75 (DC)

K.B. v. Toronto School Bd. (2006), 211 O.A.C. 75 (DC)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. MY.030

K.B. (by his litigation guardian R.N.) and T.M. (by his litigation guardian P.A.) (applicants/responding parties) v. Toronto District School Board and Louie Papathanasakis, Principal, Emery Collegiate Institute (respondents/moving parties) and Toronto Star Newspapers Limited, The Alleged Victim and Witnesses, C.D. Alleged Participant and Justice for Children and Youth (interveners)

(55/06; 06-CV-304058)

Indexed As: K.B. et al. v. Toronto District School Board et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Chapnik, J.

May 3, 2006.

Summary:

Youth Criminal Justice Act proceedings were brought against the applicant students in respect of an alleged violent incident at a school. Also, the school board decided to exclude the applicants from school and transfer them. The applicants sought judicial review of the school board's decision. The pleadings and evidence on the application referred to the students allegedly involved, as well as to the victim and witnesses to the alleged incident and the circumstances surrounding it. On consent of all parties, Perell, J., ordered the court's public record sealed subject to the exemption of permitting the parties and the Attorneys General of Ontario and Canada to access and use the information in the record for the purpose of the application. Perell, J., made orders substituting all applicants' names with their respective initials, amending the style of cause accordingly, and sealing the court's public record in its entirety until the hearing of the application on its merits. Perell, J.'s, order was continued by further orders. The school board moved for orders continuing the sealing of the court's public record, requiring that no student be referred to in oral argument by name or actual initials but rather by pseudonymous initials, and banning the publication of the name and any information that would tend to identify a student referred to in oral argument.

The Ontario Divisional Court dismissed the motion in part. Perell, J.'s, sealing order was rescinded. The court file was to be open to the media and the public subject to its being edited to remove the names of the accused, the victim and the witnesses and any identifying information relating to them. For further clarification, the media could fully report on the evidence of witnesses or refer to exhibits so long as such a report did not violate the publication restrictions contained in ss. 110 and 111 of the Youth Criminal Justice Act. The other relief requested that no student be referred to in oral argument by name or actual initials, was granted. The court made no order as to costs.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Courts - Topic 4806

Common law - General - Hearings - Open court - [See Education - Topic 748 ].

Criminal Law - Topic 8717

Young offenders - General principles - Procedure - Publication ban - [See Education - Topic 748 ].

Education - Topic 748

Education authorities - School commissions or boards - Powers respecting students - Disclosure of information - An alleged violent incident at a school led to Youth Criminal Justice Act (YCJA) proceedings against the applicant students and a decision by the school board to exclude the applicants from school and transfer them - The applicants sought judicial review of the school board's decision - The court record in the application contained the mention of the incident made in the students' records kept under the Education Act (Ont.) - The court record also contained the names of the students, victim and witnesses and the circumstances surrounding the alleged incident - The school board invoked the pupil record secrecy provisions in the Education Act and the publication restrictions in ss. 110 and 111 of the YCJA and moved to have the court record sealed - The Ontario Divisional Court refused to seal the court record but ordered that the names of the students, victim and witnesses be edited out and that no student be referred to in oral argument by name or actual initials - Once the pupil record information became part of the public record, it was subject to the common law and the constitutional principle of open courts - Once the name and identifying information with respect to a pupil was removed from the Ontario Student Record, the anonymous information being disclosed was consistent with the objectives of the Education Act - Risk for the safety of the victim and witnesses was speculative in nature - The applicants consented to the release of their pupil records - They had access to the entire court file - Sections 110 and 111 of the YCJA only restricted publication of the names and identifying information relating to the accused, victim and witnesses - They did not preclude public access to the information in the file - The YCJA did not require an in camera proceeding, or that the names of the accused, witnesses or victims not be spoken in the course of the proceeding.

Cases Noticed:

F.G. v. Board of Education of Scarborough (1994), 68 O.A.C. 308 (Div. Ct.), refd to. [para. 30].

R. v. Toronto Star Newspapers Ltd. et al. (2003), 178 O.A.C. 60; 67 O.R.(3d) 577 (C.A.), refd to. [para. 33].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [para. 33].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 33].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1, consd. [para. 34].

Vancouver Sun, Re - see Application Under Section 83.28 of the Criminal Code, Re.

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 332; 322 N.R. 161; 199 B.C.A.C. 1; 326 W.A.C. 1, refd to. [para. 34].

Statutes Noticed:

Education Act, R.S.O. 1990, c. E-2, sect. 265(1)(d) [para. 16]; sect. 266(2) [para. 17]; sect. 266(9) [para. 19]; sect. 266(10) [para. 20].

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 110(1) [para. 21]; sect. 111(1) [par. 22]; sect. 111(2) [para. 23].

Authors and Works Noticed:

Ontario, Ministry of Education, Violence-Free Schools Policy, 1994, generally [para. 27].

Counsel:

Lora M. Patton, for the responding party, K.B.;

Selwyn Pieters, for the respondent party, T.M.;

Thomas McRae and Jennifer Trépanier, for the moving parties;

Tony S.K. Wong, for Toronto Star;

Craig A. Lewis, for The Alleged Victim and Witnesses;

Donald F. McLeod, for C.D. Alleged Participant;

Lee Ann Chapman, for Justice for Children and Youth.

This motion was heard at Toronto, Ontario, on April 28, 2006, by Chapnik, J., of the Ontario Divisional Court, who released the following decision on May 3, 2006.