S.M. v. Society, 2010 CFSRB 43

CHILD AND FAMILY SERVICES REVIEW BOARD

S.M.

v.

Society

REASONS FOR DECISION ON MERITS

Date: September 29, 2010

Citation: 2010 CFSRB 43

Indexed as: S.M. v. Society (CFSA s.68)

* for privacy reasons the name of the Society has been redacted

INTRODUCTION

1On June 23, 2010 S.M. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) against the [Society] pursuant to sections 68 and 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). The application was found to be eligible for review under s.68.1(4) on June 30, 2010.

2At a pre-hearing on July 19, 2010 the Applicant’s complaints were confirmed and are as follows:

1. That the Society had not heard the concerns of the Applicant regarding the manner in which the allegations made against her were handled by the Society.

2. That the Society has not provided the Applicant with reasons for decisions made in regards to allegations about the Applicant and has not provided an explanation to the Applicant for the actions the Society took.

3A hearing into this matter was held on September 15, 2010. At the outset of the hearing the Society presented a motion to challenge the jurisdiction of the Board to hear the Applicant’s complaint. The Board denied the motion and proceeded to hear the merits of specific aspects of the complaint. For the reasons that follow the Board dismisses four of the complaints, and finds for the Applicant regarding the provision of reasons in two of the complaints. However, since the Society offered detailed explanations relating to the two complaints at the hearing, the Board does not issue any orders as remedies for those two complaints.

Jurisdiction Motion

4The Society based its argument on three separate grounds; namely (1) that the Board was restricted to hearing complaints based on services received by a parent who sought or received services from the Society, (2) that there is no legal remedy for the Board to use to resolve the Applicant’s complaint as the specific remedies she seeks are in the area of the Society’s powers, rather than its services, and (3) that the complaint is moot as discussions have occurred with the Applicant on the subject of her complaint and she has received letters that provide answers to her questions.

5The Board considered the following legislative provisions in the Act in reaching its decision on the jurisdiction motion:

68. (1) A person may make a complaint to a society relating to a service sought or received by that person from the society in accordance with the regulations.

68.1(4). The following matters may be reviewed by the Board under this section:

(4) Allegations that the society failed to comply with clause 2(2)(a);

(5) Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

2(2) Service providers shall ensure,

(a) that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving.

15(3) The functions of a children’s aid society are to,

(a) investigate allegations or evidence that children who are under the age of sixteen years or are in the society’s care or under its supervision may be in need of protection,

(b) protect, where necessary, children who are under the age of sixteen years or are in society’s care or under its supervision,

(c) provide guidance, counselling or other services to families for protecting children or for the prevention of circumstances requiring the protection of children

15(4) A Society shall,

(a)Provide the prescribed standard of services in its performance of its functions; and

(b) follow the prescribed procedures and practices

3(1) In this Act

“service” means.

(c) a child welfare service

“child welfare service” means,

(b) a service provided under Part III (Child Protection),

37(1) In this part

“parent” when used in reference to a child means each of

(a) the child’s mother,

6On its first ground, the Society argued that the Board is not a regulator of Society’s services and functions. It argued that the Society’s powers are defined in the Act in s.15(3)(a) and (b). These two sub-sections do not include the word “service”, but do obligate the Society to investigate and protect when warranted. The word “service” does not appear in the Society’s functions until subsection (c) where “investigate” is not a listed service. The Society asserted that a child protection investigation is an obligation under the Act, not a service.

7The Board disagrees with Society’s interpretation. The Applicant is eligible to apply to the Board. Although she is a parent who did not seek services, she did receive a child welfare service from the Society. Following a request for assistance, a child protection investigation was conducted by a neighbouring society, [Society B]. A report was produced. A file was opened by the [ ] Society and subsequently closed and sealed. Although the investigation was unwelcome, the Applicant was the subject of the investigation which in the Board’s opinion is a child welfare service. In the Board’s opinion all of the verbs found in subsections 15(3)(a), (b) and (c) of the Act – investigate, protect, provide – are obligatory services for a society. Under regulation 206/00 and section 15(4) of the Act, the Society must investigate concerns pursuant to mandatory Ministry Standards: Child Protection Standards in Ontario (“Standards”). The Introduction to the Standards states that the purpose of the Standards “is to promote consistently high quality service delivery to children, youth and their families receiving child protection services from Children’s Aid Societies across the province.” The Standards deal specifically and in an in-depth manner with investigations, which are treated as a “service”.

8The Board’s functions under its jurisdiction are related to process, not substance. The Applicant’s complaint is one of process; did [the] Society “hear” her questions about how it conducted the investigation and were answers provided to explain that process. The Board finds that she is eligible to complain under s.68.1(4)4 as, according to the definitions in the Act, she is a parent and she was the recipient of a service.

9When arguing its second ground, the Society referred to specific requests contained in the Applicant’s original application to the Board and re-iterated in its factum on the motion:

(a) review the assessment skills of the Intake assessors of the [ ] Society in this case; and/or audit the research/investigation undertaken by the [ ] Society; and,

(b) review the protocol used by the [ ] Society to refer this matter to another agency as there was a potential conflict of interest.

10The Society maintained that these requests dealt with how it conducted its internal affairs and as such the Board had no jurisdiction under the Act to delve into any of these matters. The issue of remedy should not be confused with the issue of jurisdiction. For the reasons described above, the Board determined that it has jurisdiction to deal with the application. The Board agrees with the Society that it cannot grant these two remedies requested by the Applicant. The Board did not entertain evidence or argument on these remedies. However, this is an issue distinct from jurisdiction.

11On its third ground in its jurisdiction motion, the Society argued that the Applicant’s complaints were moot as meetings had been convened, discussions took place and correspondence was delivered that, in its opinion, satisfactorily dealt with the Applicant’s complaints. The Society’s points in this regard go the merits of the application and not the question of jurisdiction. It is for the Board to determine if the meetings held and the correspondence written fulfil the Society’s obligations to the Applicant to hear her concerns and provide her with reasons.

12Based on the conclusions presented above in paragraphs [8] and [11] the Board has jurisdiction to hear the application on the basis of the issues, as identified in the pre-hearing report.

BACKGROUND

13The Applicant is a single mother with a son aged 11 years. She is an employee of the [ ] Society and currently works in the intake unit (the “booth”). She also is involved in a labour dispute with a co-worker. This dispute was ongoing at the time of the referral regarding her child’s alleged need for a protection investigation.

14On March […], 2010 an Intake Screener working in the booth at the [ ] Society received a telephone call (the “referral”) that alleged the Applicant’s son required a child protection investigation. Several alleged facts were provided to the worker but, as this particular Intake Screener identified that the allegations involved a co-worker she/he did not fully pursue specific details from the caller who demanded full anonymity.

15Having cut off the call, the Intake Screener immediately contacted her Supervisor, S.C., who in turn spoke with the Manager on duty at that time, L.R.. To protect the confidentiality of the Applicant the Manager ensured the forwarding via facsimile of the information that was gathered by the Intake Screener to [Society B] and left it to that agency to pursue the matter.

16On March […], 2010 the Applicant was contacted about the referral by D.B., a Child Protection Worker at [Society B]. Ms. D.B. interviewed the Applicant and her son and visited the family home on March […], 2010. Ms. D.B. determined that the allegations were unfounded and that a child protection services response was not required. The conclusions drawn from the investigation were forwarded to the [ ] Society and the file was closed and sealed.

17On March […], 2010 D.D., Program Manager for the [ ] Society with ultimate responsibility for the intake unit, returned to work following a medical leave. He was de-briefed on recent activities including the referral regarding the Applicant. He was told that the original referral call did not go through the booth but went directly to management, thus none of the Applicant’s co-workers were aware of the allegations. He relayed this information to the Applicant when she telephoned on March […], 2010 to inquire about the call she had just received from [Society B].

18On March […], 2010 the Applicant wrote to L.N., senior manager for the [ ] Society to question why she (the Applicant) was not informed of the referral and why the call was not thoroughly vetted to validate the allegations. The only documentary evidence before the Board in response to this letter is written responses from Mr. D.D. to the Applicant dated June […], 2010 and June […], 2010.

19In late March, 2010 the Applicant learned that [Society B] investigated the allegations to assist the [ ] Society. This meant that her co-workers had recorded the details of the referral; that the original call did not by-pass the booth and go directly to management. On numerous occasions via telephone and in meetings the Applicant allegedly questioned Mr. D.D. about the path of the referral and he consistently maintained that the call had not gone through the booth.

ANALYSIS

20The Board must determine if the Applicant was heard by the Society and whether she received answers to her questions about the [ ] Society’s handling of the referral made on March […], 2010. At the conclusion of her testimony on September […], 2010 the Applicant summarized her issues into several questions. It is unclear how many of these questions were discussed during the various meetings and telephone conversations between the Applicant and Mr. D.D.. The Board will note when information dealing with the questions is contained in either of the letters dated June […] and June […], 2010. Each question will be dealt with separately.

Question 1

21The Applicant wanted to know why the file was referred to [Society B] and why the documents were returned to the [ ] Society. Mr. D.D.’s letter of June […], 2010 and his testimony on September […], 2010 indicate that, because of conflict of interest the investigation was transferred to [Society B]. The letter also stated the [ ] Society had some information in its files presumably gathered from the referral but that the details of the investigation are kept by [Society B]. Mr. D.D. testified that with respect to data transfer, the [ ] Society was following its operational protocols. He also stated that it is standard procedure for the [ ] Society to transfer an investigation when the parent under scrutiny is an employee of the [ ] Society. Mr. D.D. did not indicate that any documents were returned to the [ ] Society from [Society B].

Question 2

22The. Applicant also wanted to know why the [ ] Society opened a file for her. The letter from Mr. D.D. to the Applicant dated June […], 2010 clearly states that on March […], 2010 the Supervisor and Manager made a determination that the referral contained enough information to meet the eligibility for service criteria and thus a file was opened.

Question 3

23The Applicant wanted an explanation as to why the Intake Screener did not do a thorough vetting of the information that was being provided by the caller on March […], 2010. Mr. D.D. testified that at some time after March […], 2010 he learned that the Intake Screener recorded some details regarding the allegations, but having realized that the person identified by the caller was a co-worker, the call was diverted before the full intake process was complete. The intake screener went immediately to her/his Supervisor who immediately discussed the referral with the Manager on duty. The Manager and Supervisor then took control of the referral. This explanation was provided in the Society letter to the Applicant dated June […], 2010. Furthermore, as the caller had demanded anonymity, the Manager and Supervisor had no means of establishing contact with the caller to complete the screening process before opening the file and asking [Society B] for assistance.

Question 4

24The Applicant questioned the need for a Court Order for full disclosure of her file. She had written to request the disclosure; an action that led to the letter to her from Mr. D.D. dated June […], 2010. The letter contains a summary of her file as held by the [ ] Society; it did not explain the agency’s policy vis-à-vis requests for file disclosure. During questioning by the Applicant at the hearing, Mr. D.D. stated that the agency’s protocol is to provide a summary of a file unless a Court Order is provided. The letter of June […], 2010 was written in the manner it was for that reason.

Question 5

25The Applicant requested a thorough explanation about the false information provided to her for several months by Mr. D.D. vis-à-vis the original call not having gone through the booth. The Board has no knowledge of when this question was first asked or how frequently it was asked, but the Applicant definitely raised this matter during a telephone conversation with Mr. D.D. on June […], 2010. The letter she received from Mr. D.D., dated June […], 2010 was a direct result of that specific conversation.

26The Applicant alleges that Mr. D.D. had steadfastly held the belief that the original call did not go through the booth. The letter of June […], 2010 contained a reversal of that position. He wrote “The telephone call to the agency was made directly to the intake screeners”. Mr. D.D. had learned his original understanding of who received the call was erroneous some two weeks after March […], 2010. Mr. D.D. did not convey this new information to the Applicant until requested to do so by the Applicant. She alleges she raised the matter several times with Mr. D.D. but provided no documentary evidence to validate her allegation. The only documentary evidence before the Board is the letter of June […], 2010 written to further clarify matters discussed during the telephone conversation of June […], 2010 between Mr. D.D. and the Applicant. The letter of June […], 2010 does not provide any explanation for his misunderstanding. Mr. D.D.’s misunderstanding of what happened on March […], 2010 was explained during testimony on Sept. […], 2010.

Question 6

27The Applicant’s final question dealt with the mysterious and suspicious nature of the March […], 2010 telephone call and the identity of the caller. The call arrived at the [ ] Society in the midst of her labour dispute with another co-worker. The caller knew enough about procedures to request anonymity rather than confidentiality as this would prevent any society from making contact to validate the allegations. The Intake Screener did not complete a thorough investigation to validate the information she/he was receiving from this unknown person. Mr. D.D. had responded to the Applicant’s suspicions in his letter of June […], 2010 where he included a full paragraph indicating that there was no evidence to indicate malicious intent in the referral and that the referral was not concocted by a staff member or supervisor. Although the Board understands and empathizes with the Applicant’s serious concerns about the source of the referral and the allegations contained therein the Board is unable to delve into the source of the referral. The question is whether the Society addressed the Applicant’s concerns, when raised with the Society. The Society did so in its letter of June […], 2010.

28The Applicant had six different questions for which she sought answers and explanations/clarification. Had she been heard by the [ ] Society? The Board believes she was on questions 1, 2, 3 and 6. She had two meetings with Mr. D.D. and between 3-6 telephone conversation with him; opportunities to raise her issues. The contents of the two letters she received from Mr. D.D. indicate that her concerns were heard as answers to all of her questions except one were contained in those letters.

29Some clarification regarding Society’s protocols vis-à-vis file disclosure was provided during testimony (question 4), and Mr. D.D.’s misunderstanding of how the referral was handled was also explained during testimony (question 6). The Board finds that the Society did not meet its obligation to provide reasons to the Applicant regarding questions 4 and 5. However, in light of the detailed explanation given at the hearing, the Board finds that there is no need to prescribe a remedy for either of these issues.

30The Board finds that all of the Applicant’s questions have been answered by the [ ] Society in sufficient detail through either correspondence received or testimony heard that the Applicant can now understand what occurred and the basis for decisions taken.

DECISION

31The Board finds that with regards to the [ ] Society’s handling of the referral call of March […], 2010 the Applicant was heard, has now received answers to her questions and, accordingly, under s.68.1(7) of the Act dismisses the complaints as described in questions 1, 2, 3 and 6.

32The Board finds that the Society did not meet its obligation under s. 68.1 (4) 5 regarding the Applicant’s questions identified as 4 and 5. For the reasons noted above, the Board makes no orders on these two complaints.

Richard Linley

Presiding Member

Lorna King

Panel Member

John Gates

Panel Member