R.T. v. The Children’s Aid Society of the County of Bruce and Huron-Perth Children’s Aid Society, 2007 CFSRB 53

CHILD AND FAMILY SERVICES REVIEW BOARD

R.T.

v.

The Children’s Aid Society of the County of Bruce

and

Huron-Perth Children’s Aid Society

REASONS FOR DECISION ON JURISDICTION

Date: October 22, 2007

Citation: 2007 CFSRB 53

Indexed as: R.T. v. The CAS of the County of Bruce and Huron-Perth CAS (CFSA s.68)

1The Applicant filed an application pursuant to Section 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”) with the Child and Family Services Review Board (the “Board”) on June 26, 2007, against both the Children’s Aid Society of the County of Bruce (“Bruce CAS”) and the Huron-Perth Children’s Aid Society (“Huron-Perth CAS”), collectively referred to as the “Societies” in this decision.

2The Board determined that the application was eligible for review on July 11, 2007, and the Applicant and the Societies were notified of this decision on that date.

3Both Bruce CAS, in its summary reply dated July 17, 2007, and Huron-Perth CAS, in its summary reply dated July 18, 2007, raised a preliminary issue regarding the jurisdiction of the Board to hear the complaint. The Societies question whether the Board has jurisdiction to hear the complaint on the grounds that:

1. the complaint was made prior to November 30, 2006, and as a result the complaint review procedure provided by the Societies is not subject to review by the Board;

2. the Applicant is not a person who “sought or received services from the Society”, as required under s.68.1(1) of the Act.

4A hearing was convened on October 12, 2007 in Goderich, Ontario, to hear the parties’ submissions on the issue of the Board’s jurisdiction to hear the complaint.

BACKGROUND

5The Applicant has a son named J. and a daughter named J.T. At all relevant times, the Applicant and her two children lived in Bruce County. In July 2006, when J. was twelve, he was babysitting, in his own home, his two step-brothers, Jn.T. and C., who reside in Huron County. Jn.T. made some allegations of sexual impropriety against J. J. has never been charged with any offence, and denies any such incidents.

6Bruce CAS investigated the allegation because the alleged incident took place in its jurisdiction, and interviewed relevant persons who lived in Bruce County. Bruce CAS asked Huron-Perth CAS to interview the alleged victims. Apparently on the strength of Jn.T.’s allegations, Bruce CAS decided that J. posed a risk and should not be left alone with his sister J.T., nor be put in any care-giving role. These findings were communicated to the Applicant, to the father of Jn.T. and C., and to S.E., the mother of a child who was residing with Jn.T. and C.’s father (no relation to the Applicant’s children). The Applicant states that, along with the stigma for J., the CAS’ decision created great strife in the life of the family, as it was impossible as a single mother to ensure that J. and J.T. were never alone together. The Applicant has essentially been trying to prove J.’s innocence and have the restrictions against him removed.

Complaint to Huron-Perth CAS

7The Applicant sent a letter of complaint to Huron-Perth CAS on August [...], 2006 about the investigation and findings, and breach of privacy rights. The letter was addressed to “C.M. and other Concerned Parties.” C.M. is the MPP for Huron-Bruce.

8Huron-Perth CAS responded by letter dated September [...], 2006, denying responsibility because the Applicant is “not a client” of Huron-Perth CAS.

9The Applicant subsequently completed a Huron-Perth CAS “Notice of Dissatisfaction with Service” form on September [...], 2006, and attached her August [...], 2006 letter. She forwarded this form to J.B., Program Supervisor, South West Region, Ministry of Community and Social Services, who in turn forwarded it to both the Executive Director of Huron-Perth CAS, and the Executive Director of Bruce CAS, on October [...], 2006.

10Huron-Perth CAS submits that it conducted an internal review at that time, and again concluded that the Applicant is not a client of the agency, and therefore the Huron-Perth CAS internal complaints procedure does not apply. Huron-Perth notified the Applicant of its findings, but nonetheless met with the Applicant on December [...], 2006 in an effort to resolve her concerns.

11On April [...], 2007, the Applicant sent a letter requesting that Huron-Perth CAS re-investigate the case. Huron-Perth initally agreed to this request, but upon review advised the Applicant on May [...], 2007 that it was “unable to re-investigate the matter” because it was not the original investigating agency and the alleged events did not occur within the Huron-Perth CAS jurisdiction.

12Huron-Perth CAS takes the position that its May [...], 2007 decision, that it was unable to pursue the request to re-open the initial investigation of July 2006, does not form the basis of the complaint currently before the Board.

Complaint to Bruce CAS

13Bruce CAS first heard about the Applicant’s complaint on October [...], 2006, when it received the “Notice of Dissatisfaction of Service” which was forwarded from J.B. at the Ministry.

14J.J., Intake Supervisor for Bruce CAS, made a written reply to the Applicant on October [...], 2006, stating: “In response to your complaint about our investigation dated August [...], 2006, I have reviewed the file as well as K.L.’s casenotes. I am satisfied that the investigation was conducted in a professional and respectful manner and that K.L. did not breach any policies, procedures or confidentiality.”

15There was a follow-up meeting between the Applicant, J.J. and K.L., the Intake Worker, on November [...], 2006, at which time the parties reached an agreement regarding a way to possibly resolve the complaint, which involved the Applicant’s son obtaining a risk assessment from K. Youth and Family Services, in effect to establish his innocence. However, a risk assessment could not be conducted unless the Applicant’s son admitted to wrongdoing, which he denied. The terms of this agreement therefore could not be completed.

16There was a further exchange of correspondence between the Applicant and Bruce CAS on June [...], 2007, confirming that the Society was willing to undertake a re-investigation of the matter. The re-investigation was subsequently cancelled, however, when the caregiver for the alleged victims would not allow a representative from Huron-Perth CAS to re-interview the children. The cancellation of the re-investigation was communicated to the Applicant by Bruce CAS on June [...], 2007.

17The Applicant brought the application to this Board on June 26, 2007 pursuant to subsection 68.1(1) of the Act on the grounds that:

1. the Societies refused to proceed with her complaint;

2. the Societies failed to respond to the complaint within the timeframes required by regulation;

3. the Societies have failed to comply with the complaint review procedure or with any other procedural requirement under the Act relating to the review of complaints;

4. the Societies have failed to comply with Clause 2(2)(a) of the Act;

5. the Societies have failed to provide her with reasons for a decision and this affects her interests.

RELEVANT LEGISLATION

68.1(1) If a complaint in respect of a service sought or received from a society relates to a matter described in subsection (4), the person who sought or received the service may,

(a) decide not to make the complaint to the society under Section 68 and make the complaint directly to the Board under this section or

(b) where the person first makes the complaint to the society under Section 68, submit the complaint to the Board before the society’s complaint procedure is completed.

68(13) This section as it read immediately before the day this subsection came into force continues to apply in respect of complaints made to a society before that day and of any review requested of the Director before that day.

68(1) (Provision prior to November 30, 2006)

A society shall establish a written review procedure, which shall be approved by a Director, for hearing and dealing with complaints by any person regarding services sought or received from the society, and shall make the review procedure available to any person on request.

(2) A review procedure established under subsection (1), shall include an opportunity for the person making the complaint to be heard by the society’s board of directors.

(3) A person who makes a complaint and is not satisfied with the response of the society’s board of directors may have the matter reviewed by a Director.

ISSUES

1. The Board must decide whether the Society’s internal complaints review procedure was engaged prior to November 30, 2006, and if so, whether the transitional provision under subsection 68(13) applies.

2. The Board must decide if the Applicant sought or received a service from the Society.

DISCUSSION AND ANALYSIS

Issue 1: Whether the Society’s internal complaints review procedure was engaged prior to November 30, 2006, and if so, whether the transitional provision under subsection 68(13) applies.

18The Board finds that the complaint outlined in the Applicant’s application to the Board, is the same one that was made to both Societies before November 30, 2006. The Board also finds that their internal complaints review procedures were engaged and, as a result, this Board has no jurisdiction to hear the Applicant’s complaint.

19There is no question that the original complaint letter dated August [...], 2006, and the Notice of Dissatisfaction dated September [...], 2006, were both filed prior to November 30, 2006.

20All the complaint communications were related to the same issue; that is, the decision that J. is a risk, the imposition of restrictions, and communication of that decision to S.E. The Applicant began her letter to the Board with the statement, “My complaint procedure started August [...], 2006”, and agreed at the hearing of the jurisdiction motion that this was the case.

21Our analysis does not stop there, however. If a complaint was to be made prior to November 30, 2006 but a Society’s internal complaint review procedure had not been started in any meaningful way, it may be unfair to deny an Applicant the opportunity to have a complaint heard, for the first time, before the Board. The Board must then consider whether the Societies’ internal review procedures have been engaged, in order to determine whether it has jurisdiction to hear complaints under 68(13).

22Huron-Perth CAS took the position that its internal complaints review procedure was not triggered in this case because the Applicant was not a “direct client” of the Society. While there may be some question as to whether a decision of non-application is an “engagement” of the procedure, in this case Huron-Perth CAS nonetheless proceeded to meet with the Applicant and attempt to resolve her concerns. We therefore find its internal complaints review procedure has been engaged respecting the complaint before the Board.

23With respect to Bruce CAS, it is clear that J.B. understood the September [...], 2006 “Notice of Dissatisfaction of Service” form with attached August [...], 2006 letter to be a complaint against both Societies. Bruce CAS treated the document, once forwarded to it, as a complaint against it. Bruce CAS’ internal complaint review procedure was then engaged, and it convened a meeting with the Applicant on November [...], 2006 to deal with her concerns. We note that Bruce CAS’ process was engaged in spite of the Society’s position before the Board, that the Applicant did not seek or receive its services.

24As the Applicant’s complaint was made prior to November 30, 2006 and engaged both Societies’ internal complaint review procedures, we find the Board has no jurisdiction to hear the complaint. The Board must now deal with the Applicant’s request to both Societies to re-open the investigation in April and June 2007.

25The discussions with Huron-Perth CAS and Bruce CAS around a possible re-opening of the investigation occurred after November 30, 2006. Huron-Perth CAS decided not to re-open the investigation on May [...], 2007, and Bruce CAS informed the Applicant on June [...], 2007 that it could not re-investigate if Huron-Perth CAS had no access to the alleged victims. We find the Applicant did not complain about the decision not to re-open the investigation. This ground is not included in the complaint to the Board, and was not the subject of a “Notice of Dissatisfaction”. As noted above, the Applicant’s complaint has been the same since August [...], 2006.

Issue 2: Whether the Applicant sought or received a service from the Society.

26The Societies argue that the Applicant is not a person who “sought or received a service” from either of the Societies, as understood by Section 68.1(1) of the Act. Given our finding on the timing issue, the Board has no jurisdiction to hear this complaint and there is no need to consider the second ground.

CONCLUSION

27The Board finds that the Applicant complained to the Societies prior to November 30, 2006, and the Societies engaged their internal complaint review procedures. The Board finds the complaint before it does not relate to a refusal to re-open the investigation by either Society. As a result, the transitional provision under subsection 68(13) applies and the Board does not have jurisdiction to hear this complaint.

28Given our finding under issue (1), there is no need to decide whether or not the Applicant sought or received a service from the Societies.

DECISION

29The Board grants the motion of the Societies and it will not proceed to hear the complaint.

Celia Denov

Presiding Member

John Gates

Panel Member

Heather Gibbs

Panel Member