Gargari v. Toronto Catholic District School Board, 2020 ONSC 6903 (CanLII)

[1]               The plaintiff Massimo Gargari claims damages from the defendant Toronto Catholic District School Board (“the Board”) arising from sexual, physical, psychological and/or emotional abuse suffered while a grade 3 student at St. Wilfrid’s Elementary School between September, 1983 and January, 1984. He alleges that the acts of abuse were committed by his grade 3 teacher and the school principal and that nearly all of the abuse committed by the teacher occurred in the classroom while the other students in the class were present. Gargari’s statement of claim (paras. 7, 8 and 25) contains the following allegations:

[2]               In its statement of defence, the Board admits that Gargari was a student at the school in question between September, 1993 and January, 1994 and that his teacher and the school principal were the individuals identified, but denies all other allegations in the statement of claim. The Board specifically denies the alleged abuse (at para. 7):

[3]               At the examination for discovery of the Board’s representative Shawna Campbell, held December 13, 2017, Gargari’s counsel requested production of a copy of the class register containing the names of the students in the class taught by the teacher Ms. Garvin during the period of the alleged abuse. The Board’s counsel confirmed that the Board has the class register in its possession but took under advisement whether they would produce it. Gargari’s counsel subsequently requested a list of the names and last known contact information of the students in the class during the period from September, 1983 through January, 1984.

[4]               On November 22, 2018, Gargari brought a motion before Master Muir for production of the class register and disclosure of the last known contact information for the students named in the register. The Board opposed the motion on the basis that the information was irrelevant, the order sought would place an undue burden on it, and it was prohibited from disclosing the information by the provisions of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56 (“MFIPPA”). In dismissing the motion, Master Muir stated (paras. 3 - 6 of his endorsement):

[5]               The sections of MFIPPA cited or referred to by Master Muir are set out in the Appendix to these Reasons. Essentially, s. 2 of MFIPPA defines “personal information”, s. 14(1) provides that a “head” (in this case the designated head of the defendant Board) shall refuse to disclose personal information except in various limited circumstances, and s. 39(1) allows for an appeal of any decision of a “head” to the Information and Privacy Commissioner under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31. Section 51 of MFIPPA provides that the statute does not impose any limitation “on the information otherwise available by law to a party to litigation” and “does not affect the power of a court or tribunal to compel a witness to testify or compel the production of a document.” 

[6]               Essentially, Master Muir was of the view that before seeking a court order for production of the class register pursuant to the Rules of Civil Procedure, which is what is contemplated by s. 51 of MFIPPA, the plaintiff was required to pursue production of the record through the other channels set out in the Act.  

[7]               Subsequent to Master Muir’s first endorsement dismissing the motion, the following occurred:

[8]               On April 3, 2019, Gargari renewed his motion before Master Muir. In dismissing the motion for the second time, Master Muir endorsed:

[9]               Gargari then reactivated his appeal of the decision of the Board’s head Mr. Shannon to the Information and Privacy Commissioner under s. 39(1) of MFIPPA. On August 19, 2019, in accordance with the request of the OIPC Adjudicator, Gargari’s counsel delivered extensive written submissions. On February 6, 2020, the Adjudicator Jessica Kowalski rendered her decision upholding the Board’s decision denying Gargari access to the class register and dismissing Gargari’s appeal.

[10]           As the motion before me is in no respect an appeal or review of the decisions of the Board’s head Bryan Shannon or the Adjudicator Jessica Kowalski, there is nothing to be gained by reviewing the reasons that they gave for denying Gargari access to the class register.  However, Adjudicator Kowalski also addresses the possibility of access to documents through the litigation process, as opposed to under MFIPPA. For ease of reference, s. 51 of MFIPPA states:

[11]           In her Order, Adjudicator Kowalski comments on s. 51(1) of MFIPPA (at paras. 30-32):

[12]           Gargari now renews the motions brought before Master Muir on November 22, 2018 and April 3, 2019 for production of the class register described above and for disclosure of the last known addresses for those named in it.  

[13]           Gargari relies on the following Rules of Civil Procedure:

[14]           Based on these rules, Gargari submits that the class register constitutes a list of “persons who might reasonably be expected to have knowledge of . . . occurrences in issue in the action”, specifically, the other students in the class who would have witnessed the conduct of the teacher described in paragraphs 7, 8 and 25 of the statement of claim. The class register is relevant under rules 30.02(1) and (2) as a document containing names of witnesses, and the names and last known contact information of those witnesses must be disclosed under rule 31.06(2). There is no suggestion that the information is privileged.   

[15]           The defendant Board opposes Gargari’s motion for the following reasons:

[16]           Based on the parties’ positions, the issues on the motion are:

[17]           The Board submits in both its factum (para. 53) and in oral argument that it is prohibited by MFIPPA and the decision of Adjudicator Kowalski from providing the information sought by Gargari; it is therefore obliged to oppose the motion.

[18]           The plain meaning of ss. 51(1) and (2) of MFIPPA is that disclosure of a document through the procedures provided in the Act and disclosure of a document in a civil action governed by the Rules of Civil Procedure are two distinct and unrelated processes. Adjudicator Kowalski, on whose decision the Board relies, specifically recognized this when she stated (in para. 30 quoted above): “Section 51(1) does not limit a litigant’s discovery rights during litigation, so that a document that might be exempt under MFIPPA can still be producible in litigation.”

[19]           The Adjudicator reiterated this point in paragraph 50 of her decision, stating: “I find that the board’s withholding of the record under MFIPPA does not prevent the appellant [i.e. the plaintiff Gargari] from pursuing remedies that might be available to him within the civil litigation process.”

[20]           Adjudicator Kowalski, in rendering her appeal decision under MFIPPA, states not once but twice that Garagari’s rights of disclosure in the litigation exist completely separately from any ruling under MFIPPA.   Accordingly, the fact that Mr. Shannon acting as the Board’s head, and Adjudicator Kowalski on behalf of the Information and Privacy Commissioner, declined to require disclosure of the class register does not in any way preclude this court’s independent consideration of whether that document, and the last known addresses of the students named in it, must be disclosed in Gargari’s litigation.

[21]           The Board also submits that, owing to the denial of access to the class register under the MFIPPA proceedings, it was obliged to oppose this motion. This is incorrect. As stated, the issues to be addressed on Gargari’s motion are completely distinct from those on his request for production under MFIPPA. As is the case for any litigant in any court proceeding, it was open to the Board to consider the relief sought on this motion based on the applicable Rules and case law, decide whether there was any tenable basis on which to oppose the motion, and then respond accordingly.

[22]           Gargari attempted to argue, based on Henery v. London(City), 2007 CanLII 51338 (Ont. Div. Ct.), that Master Muir’s rulings that he must first exhaust his appeal rights under MFIPPA before seeking a court order for production of the class register were incorrect, and it was therefore unnecessary for me to consider the issue of whether he had exhausted those rights. However, even if Master Muir’s rulings were incorrect, Gargari’s failure to appeal those rulings means that they are binding on him for the purpose of the current motion. It is therefore necessary to consider whether Gargari has exhausted his appeal rights under MFIPPA.     

[23]           Subsequent to Master Muir’s first endorsement of November 22, 2018, Gargari unsuccessfully sought production of the class register from the “head” of the Board under s. 14(1) of MFIPPA. In his endorsement of April 3, 2019, Master Muir dismissed the motion for a second time without prejudice to Gargari bringing this motion again after exhausting his appeal rights under MFIPPA. On February 6, 2020, Gargari’s appeal of the decision of the Board’s “head” was dismissed by Adjudicator Kowalski. Gargari submits that by completing the appeal process under s. 39 of MFIPPA, he has fully complied with Master Muir’s direction and he is now entitled to proceed with this motion.  

[24]           The Board submits that Gargari has the right to apply to the Divisional Court for judicial review of Adjudicator Kowalski’s decision, and has therefore not exhausted his rights of appeal under MFIPPA. I disagree.

[25]           First, Master Muir required that Gargari exhaust “his appeal rights under MFIPP”. Gargari’s right of appeal under s. 39(1) of MFIPPA is to “the Commissioner appointed under subsection 4(1) of the Freedom of Information and Protection of Privacy Act.”  He exercised this right of appeal with the delivery of the submissions considered by Adjudicator Kowalski and he has no other appeal rights under MFIPPA. An application for judicial review must be made under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 and is not relief under MFIPPA.   

[26]           Second, an appeal and an application for judicial review are not the same thing. The focus of judicial review is not the substance of the decision, but whether the administrative body making the decision properly exercised its powers. If Master Muir intended that Gargari also seek judicial review of the Adjudicator’s appeal decision under MFIPPA, it was incumbent on him to use that term as opposed to “appeal”, and he did not. Gargari has complied with Master Muir’s direction.

[27]           Furthermore, the Board’s submission that Gargari must apply for judicial review of the OIPC Adjudicator’s decision would open the door to two more levels of appeal. If Master Muir’s rulings require Gargari to apply for judicial review of the Adjudicator’s decision, and the application is dismissed by the Divisional Court, must he then appeal to the Court of Appeal? And if this hypothetical appeal to the Court of Appeal is dismissed, must he then seek leave to appeal to the Supreme Court of Canada? The Board makes much of the issue of proportionality in relation to providing contact information for the plaintiff’s former classmates but argues that it is reasonable and apparently proportional to expect Gargari to pursue an appeal under MFIPPA, a judicial review application to Divisional Court, and two more levels of appeal, in respect of disclosure of a single document and contact information for some witnesses. Such an approach is completely at odds with the prime directive in Rule 1.04(1) “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”               

[28]           For these reasons, I conclude that, in compliance with Master Muir’s direction, Gargari has exhausted his appeal rights under MFIPPA, and he may proceed with this motion.

[29]           If the conduct described by Gargari in paragraphs 7, 8 and 25 of the statement of claim occurred as alleged, the students named in the class register plausibly would have witnessed it and they are all therefore “persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action.” On this basis, the class register identifying Gargari’s classmates, and their last known addresses, would fall within the defendant’s disclosure obligations under rule 31.06(2).

[30]           Counsel for the Board argues that any evidence that might be obtained from Gargari’s classmates is unnecessary because Gargari himself can give evidence about what happened to him at the school between September, 1983 and January, 1984. This argument has no merit. While the Board may prefer that Gargari not call evidence that may corroborate his version of events, it has no right to prevent him from doing so or to deny him the ability to identify witnesses who may be able to give such evidence. This is especially the case where Gargari’s classmates are very likely the only witnesses to what transpired in his grade 3 classroom during the period in question.

[31]           Counsel for the Board also submits that the contents of the class register are not sufficiently relevant to warrant an order that it be produced because Gargari’s discovery evidence was that his teacher struck him in front of the class on only one occasion and the Board takes the position that physical or corporal punishment was legal in 1983/1984 and that such punishment could have included spanking a child with a ruler or yardstick. The Board argues that because it has acknowledged that Gargari’s grade 3 teacher may have struck him in front of his class, the other students present in the class on that occasion will have no additional evidence to give on the issue.     

[32]           Gargari’s allegations against his grade 3 teacher are not limited to a single incident of having been struck in front of his class.  Rather, he alleges (in paras. 8 and 25 of the statement of claim) a course of abusive behaviour by the teacher against himself and other students, subjecting him to “an environment of fear and anxiety”, causing his injuries and losses. The Board denies the abuse, thus putting those allegations in issue.

[33]           The possible evidence from the other students in Gargari’s grade 3 class will not be limited to the single incident in which Gargari was struck in front of the class. Rather, any such evidence would relate to all of the teacher’s actions between September, 1983 and January, 1984, which in fact constitute the bulk of the alleged abuse. Gargari’s classmates’ evidence would be therefore be relevant to his allegations regarding the teacher’s conduct during the entire period for which he attended the school.  

[34]           Under rule 31.06(2), Gargari “may on examination for discovery obtain disclosure” of his classmates’ names and last known addresses, “unless the court orders otherwise.”  This language confers discretion on the court to order or refuse to order disclosure based on a consideration of all the circumstances.

[35]           The Board submits that disclosure of the identities of Gargari’s classmates should be refused because at the time of the subject events, they were minors.

[36]           The Board relies on the decision of the Supreme Court of Canada in R. v. Jarvis, 2019 SCC 10. The accused was a high school teacher charged with voyeurism after having been caught filming female students using a pen camera. In addressing the issue of whether the students had a reasonable expectation of privacy, the Court held (at para. 86):

[37]           The Supreme Court’s decision in Jarvis recognizes that the greater vulnerability of minors entitles them to greater privacy rights than adults. However, the decision considers those privacy rights with a view to the protection of the accused’s young female victims while they were still minors. Gargari’s classmates were grade three students in 1983, so they were likely all born in 1975 and would now be approximately 45 years old. The fact that they were minors at the time of the alleged incidents 37 years ago does not insulate them from having their identities as potential witnesses disclosed as adults.  

[38]           The Board also relies on Doucet v. The Royal Winnipeg Ballet School, 2019 ONSC 6982. This is a class action against Monk, a former ballet school instructor and photographer, and the Ballet School itself, based on allegations that Monk took intimate photographs of students in private settings, constituting sexual assault of the students, a breach of fiduciary duty, and various statutory and common law privacy and confidentiality torts.

[39]           In dismissing a refusals motion brought by the plaintiffs against the defendant Monk, Perell J. noted (at para. 24) that all but two of the questions refused or taken under advisement concerned Royal Winnipeg Ballet staff and administrators and former Royal Winnipeg Ballet students, and then stated (at paras. 32-34):

[40]           Although Perell J. considered the privacy of former Ballet School students in para. 33 of Doucet, he commented further on the issue of privacy (at para. 43):

[41]           The Board submits, based on Doucet, that an order requiring the disclosure of the names and contact information for Gargari’s classmates should be refused on the basis that such an order would constitute a breach of their privacy.

[42]           The statement in para. 33 of Doucet that refusals were justified on the basis that the questions “would invade the privacy of former students”, appears to be contradicted by the statement in para. 43 that the court “need not answer whether privacy concerns are another justification for refusing to answer questions.” However, Perell J. also commented in para. 43 that the defendant was asked “to disclose photographs of non-Class Members that the Plaintiffs allege are pornographic in nature and in any event are a very private matter”.  Accordingly, even accepting that the privacy of strangers to an action may be a legitimate concern on a motion for disclosure of their identities, it is necessary to consider what aspect of those individuals’ privacy might be compromised.        

[43]           Gargari does not seek any information with respect to his classmates other than their names and last known contact information, none of which is particularly sensitive or prejudicial to the individuals involved. This is a far cry from the request in Doucet for production of what the plaintiffs themselves characterized as pornographic photographs of former students of the Royal Winnipeg Ballet School. The Board has not identified any privacy concern with respect to the mere identity of Gargari’s classmates that would justify refusing an order for disclosure.   

[44]           Finally, the privacy of the individuals in the class register is at least in part protected by the fact that Gargari’s use of their names and contact information is limited to the narrow scope of this action by the deemed undertaking in rule 30.1.01(3):

[45]           The Board submits that, even if it is ordered to produce the class register containing the names of all Gargari’s grade 3 classmates, the work required to obtain the last known addresses for those individuals would place a disproportionate burden on it. The Board relies on rules 1.04(1.1) and 29.2.03 of the Rules of Civil Procedure:

[46]           The Board submits that it is “highly doubtful” that it has any contact information for any of the students named in the class register and relies on the following assertions:

[47]           Under rule 1.04(1.1), the court’s order shall be proportionate to the importance and complexity of the issues, and to the amount involved. The information requested is the contact information for the only potential witnesses to the abuse alleged in the statement of claim. The plaintiff claims damages totalling $875,000.00 and the statement of claim contains serious allegations of abuse by a teacher. The disclosure of the contact information for witnesses who could testify as to whether those allegations are accurate could significantly assist the court in making a just decision.  The requested information is therefore sufficiently related to the resolution of the central liability issue in the action that requiring the Board to use some resources to provide the information is warranted.

[48]           I will also consider the factors in rule 29.02.03(1):

[49]           Rule 29.2.03(2) requires a consideration of whether the order sought on this motion would require the Board to produce “an excessive volume of documents.” The only document that is the subject of the motion is the class register. The balance of the disclosure sought is information as to the last known addresses of the students named in the register, which would require minimal if any documentary production.

[50]           Essentially, the last known addresses for the only possible witnesses to the conduct alleged by Gargari are sufficiently important information that the Board must be prepared to spend some time locating them.  However, there are reasonable limits that the court can place on the scope of the search.

[51]           The Board’s evidence is that it operates 150 schools. This total presumably includes all of its elementary schools, middle schools and high schools in the City of Toronto. There is little to be gained by requiring the Board to track every one of Gargari’s grade 3 classmates through every school under its jurisdiction. The request is for their last known addresses which would be their addresses when they last attended one of the Board’s schools, which in the case of most students would be a high school. High schools typically have a number of “feeder” schools, and would constitute only a fraction of the Board’s total schools. The enquiries to be made by the Board could reasonably be limited to its high schools.

[52]           Some geographic limitation with respect to the Board’s enquiries would also be appropriate. St. Wilfrid’s Elementary School is located on Finch Avenue, west of Keele Street, in the northwestern quadrant of the City, and most of its students would likely have attended high school in that general area. The Board’s enquiries shall be confined to its high schools located in the area bounded by the City of Mississauga to the west, Steeles Avenue to the north, Yonge Street to the east, and Eglinton Avenue to the south.

[53]           It is also possible to reduce the scope of the Board’s enquiries by limiting the time period for which it is required to search. Most of Gargari’s grade 3 classmates named in the class register for the 1983/84 school year would have entered grade 11 in 1991, grade 12 in 1992 and grade 13 in 1993. The Board’s search for their last known addresses can therefore be limited to the school years 1991-1994.   

[54]           For these reasons, the Board is hereby ordered:

[55]           At the conclusion of the hearing, both parties filed costs outlines. I agreed that they could make submissions on costs after receiving my Reasons for Decision.  If the parties cannot agree on the disposition of costs, they may make written submissions, the plaintiff within 20 days and the defendant within 20 days following receipt of the plaintiff’s submission. Submissions shall not exceed three pages not including the costs outlines already filed.