2020 QCCQ 1314, 2020 QCCQ 1314

D.S.c. Lester B. Pearson School Board 2020 QCCQ 1314 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-254045-191 DATE: February 26, 2020 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ D. S. Plaintiff. v. LESTER B.

PEARSON SCHOOL BOARD Defendant. ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] This is a case in which the Plaintiff, the mother of a minor child, sues the school board that operates the school the child attended alleging that the child was the victim of bullying by other children.

The claim is for damages related to the harm allegedly caused to the child because the failure of those responsible at the school board to act appropriately to put an end to the bullying. [ 2 ] The parties request the decision of a judge on questions asked during examinations on discovery of two representatives of the Defendant, Christopher Fuzessy and Christine Dane, to which the Defendant objected. [ 3 ] The objections are referred to by the parties with reference to the objection number and the Undertaking number as follows, followed by the Court’s discussion of the objection: I Christine Dane: Obj # 1 (pg 10-12) “Was the child who [description of act] disciplined? [ 4 ] The Defendant objects on the grounds that the information about the measures taken by the persons responsible are confidential pursuant to the applicable law [1] . [ 5 ] The dispositions of the law, do, in fact provide for confidentiality in respect of complaints and how they are dealt with: 75.1.

The governing board is responsible for approving the anti-bullying and anti-violence plan, and any updated version of the plan, proposed by the principal. The main purpose of the plan must be to prevent and stop all forms of bullying and violence targeting a student, a teacher or any other school staff member. In addition to any elements the Minister may prescribe by regulation, the plan must include […] (6) measures to protect the confidentiality of any report or complaint concerning

an act of bullying or violence;

[…] [ 6 ] The Anti-Bullying and Anti-Violence Plan (D-2) adopted pursuant thereto provides as follows: 6. Measures to Protect Confidentiality : As part of the investigative and follow-up processes, St. Thomas High School is committed to maintaining fair, accurate and confidential records of each reported incident of bullying or violence, regardless of the investigative outcome. These records will include specific details on the incidents in question, the steps taken by the school as a consequence of its investigation and indication of intended follow- up. St.

Thomas High School is committed to keeping these records confidential and secure so as to protect all parties regardless of their role in the incident. Proposed Steps : • The St.

Thomas high School anti-violence/anti-bullying plan will be reviewed annually and all staff are reminded that every incident and the follow-up must be kept confidential. • The above named reports will be kept in a file separate from the Cumulative File or Confidential File of an individual student. • In all cases involving minor students information shared should be on a need to know basis only. [ 7 ] The Court readily endorses the goal and the effectiveness of obligations of confidentiality in such instances, but, in the context of a legal proceeding in which the measures taken by the school board are a central issue, it cannot be a question of privilege preventing the judge on the merits from hearing evidence about these measures, or the lack thereof.

The goal of keeping the information confidential can be attained by the presiding judge by hearing the evidence in camera and by imposing confidentiality on the parties and their attorneys, as required.

The Court’s decision: In the context of an examination on discovery as in the present case, the evidence to which the school commission has access about the disciplinary measures taken should be given for the attorneys’ eyes only pending the trial judge’s determination of the modalities to allow for the evidence to be entered into the record, with examination and cross-examination of the person who has the knowledge of the information.

It would be appropriate here for the question to be answered in writing by the employee who knows the information, with particulars as to the measures taken as discipline or guidance, as the case may be in respect of, the child referred to in the question.

The Plaintiff’s attorney will be bound by an undertaking to keep this information confidential, not disclosing it to anyone, including his client, until the matter of confidentiality can be dealt with by the judge on the merits. * * * II Christopher Fuzessy Objection # 1; U-2 (pg. 22) “To provide Mario Mazerelli’s contact information” [ 8 ] This is a retired employee of the school board responsible for the registration of students in home schooling. The Defendant cannot be responsible for his presence at the trial, because he is no longer an employee.

The Court’s decision: It would be appropriate for the Plaintiff’s attorney, as an officer of the Court, to issue a notice to appear as a witness at trial.

The Court orders the school commission to provide to the lawyer the address it has on record for the witness and the attorney undertakes to use this information only for the purpose of issuing the order, as an officer of the Court, otherwise keeping it confidential. * * * III Christopher Fuzessy Objection # 2; U-4 (pg. 31) “ To verify and advise what the School Board factually did in order to fulfill its obligations with respect to the education and surveillance of X (Objection)” [ 9 ] In its

summary statement of grounds of defense, the Defendant alledges : La défenderesse s’est acquitté de ses obligations quant à l’éducation et à la surveillance de X. [ 10 ] The Defendant objected, because the witness, a regional director of the school board is not the appropriate witness. While the Court can readily understand that he would not be aware of the day-to-day operations of a specific school in sufficient detail to answer

the question, the question is one that is made relevant by the joinder of issues. The Court’s decision: the Plaintiff is entitled to know what the precise facts that the school commission intends to prove may be. This should be provided by an undertaking on the part of the witness to inform himself by making reasonable enquires with the witnesses who know these facts and report these facts as an answer to this undertaking, so that the Plaintiff can adequately prepare for trial and not be taken by surprise.

WHEREFORE, THE COURT: ORDERS the Defendant to respond to the three disputed matters raised in the examinations in the manner set out above under the title ‘ The Court’s decision ’. ORDERS the Plaintiff’s attorney to abide by the undertakings imposed in the said decisions in regard to keeping the information that is provided confidential. THE WHOLE, WITHOUT COSTS. __________________________________ DAVID L. CAMERON, J.C.Q. Me Philip E.

Fine Attorney for Plaintiff Me Thu Mai Nguyen Comité de gestion de la taxe scolaire de Montréal Attorney for Defendant Date of hearing: January 22, 2020 [1] Education Act, CQLR c I-13.3