This presentation deals with Subpoenas and other requests for information from lawyers
involved in proceedings related to students in our care.
It is common for members to receive requests for information from lawyers.
Sometimes subpoenas are issued to members as well.
It is important to recognize that subpoenas and requests are not the same thing, and so
each carries a different level of obligation.
Upon receiving a request from a lawyer, consider whether you have received a subpoena or a
request – there is a difference.
When the parents of students are engaged in a custody battle, one or both of them will
often seek supporting information from their child’s teacher or DECE.
Commonly, members receive a phone message at school asking them to call a particular
lawyer.
In some cases, members receive formal written requests from lawyers requesting phone calls
or even written submissions.
The tone of these letters and phone calls can sometimes lead members to believe that
they have to comply.
But as you will see, this is not the case.
Similar requests may come from a lawyer or a crown attorney who is seeking information
related to a criminal proceeding involving a current or former student.
In some cases, requests may come from the “Office of the Children’s Lawyer”.
The Office of the Children's Lawyer is a law office in the Ministry of the Attorney General
which delivers programs in the administration of justice on behalf of children under the
age of 18 with respect to their personal and property rights.
Lawyers within the office represent children in various areas of law including child custody
and access disputes, child protection proceedings, estate matters and civil litigation.
Because these lawyers are court appointed, represent the child and not the parent, and
act as neutral advocates for the child, ETFO recommends that members cooperate with these
lawyers, even without a subpoena.
It is important to remember that a request is just that- a request.
You do not have to comply with that request.
You are not legally obligated to write a letter or answer a lawyer’s questions in an interview
or telephone conversation.
In fact, doing so could lead to further involvement, including appearing as a witness in court.
A subpoena, however, is quite different from a request.
A subpoena is a document that requires its recipient to appear in court as a witness.
In other words, you must comply with a subpoena.
Subpoenas may be issued from Family Court, Criminal Court, Human Rights Tribunal, the
Labour Board, or a Labour Arbitrator.
A subpoena will indicate the time and location where you are required to appear.
It may also list documents which you must bring with you.
Despite your obligation to comply with a subpoena, it is important to note that you are still
under no obligation to speak to a lawyer.
If you receive a request from a crown attorney involved in a criminal proceeding or a lawyer
representing a parent in a custody dispute, always seek advice.
If the source of the request is Family or Criminal Court, you should notify your principal
and request advice from the school board’s counsel.
Your principal should be able to arrange this for you.
If this is not forthcoming, call your local president or staff in Professional Relations
at ETFO for advice.
If the source of the request is a labour or Human Rights Tribunal, or an Arbitrator, call
PRS at ETFO for advice.
Important considerations need to be taken into account before you proceed.
If you are advised to speak to a lawyer, remember that your answers must be entirely factual.
Never speculate or offer opinions as to why a student acted in a certain way.
Facts, dates and actual observations as to conduct or mood may be relevant, but do not
pass on “informal” knowledge of any sort.
Do not descend into the custody battle.
Your opinions are not relevant and may embroil you inappropriately in a parental dispute,
so always remain impartial.
Do not share confidential information about the student.
The contents of the Ontario Student Records, or OSRs, are privileged and cannot be disclosed
without court approval.
If you are issued a subpoena, seek advice from Professional Relations Services at ETFO.
Call 1-888-838-3836 or 416-962-3836.
As mentioned, if you are issued a subpoena seek advice.
Check your collective agreement for articles related to appearing in court as a witness.
Your local president can assist you with this.
Be sure to appear at the appointed time and location, and be prepared to wait.
Bring all documents listed in the subpoena, if any.
Bring any related personal notes you may have, in order to refresh your memory.
When testifying in court, it is important to be aware of what you can and cannot share.
Do not share information about other students.
Do not comment on the physical, emotional or mental state of a student.
You are not qualified, and that is the role of an expert witness.
Do not comment on or reveal any information contained in the OSR without written permission
from the student’s parent or guardian, and without the principal’s permission.
Teachers are bound to protect this confidential information, and may share it only under very
specific circumstances.
Section 266 of the Education Act says that you are not permitted to testify to the contents
of “pupil records” or the Ontario Student Record, or OSR.
These records are not admissible in evidence for any purpose in any trial, inquest, inquiry,
examination, hearing or other proceeding, without the written permission of the guardian
or parent, unless a judge has ordered that you bring them.
The Professional Misconduct regulations of both the Ontario Teachers’ College and the
College of Early Childhood Educators define “professional misconduct” of members to
include “releasing or disclosing information about a student to a person other than the
student or, if the student is a minor, the student’s parent or guardian.”
If a member does breach confidentiality with respect to a student’s OSR, this may be
a ground of professional misconduct.
Remember, always seek advice, whether you receive a request for information or a subpoena.
Call Professional Relations Services at ETFO, at 1-888-838-3836 or 416-962-3836.