J.R. v. Chatham-Kent Children’s Services, 2015 CFSRB 29

CHILD AND FAMILY SERVICES REVIEW BOARD

J.R.

v.

Chatham-Kent Children’s Services

REASONS FOR DECISION ON COMPLIANCE

Date: July 6, 2015

Citation: 2015 CFSRB 29

Related to 2015 CFSRB 16

Indexed as: J.R. v. Chatham-Kent Children’s Services (CFSA s.68)

INTRODUCTION

1This decision must be read in conjunction with the Reasons for Decision in this matter. The Board made the following order on April 1, 2015.

The Society shall have 20 days to explain in detail, in writing, why it made the decision not to follow the Society and Ministry policies referenced in this decision, including with respect to consents from the Applicant and from the treatment providers with documents stamped confidential. The explanation shall contain sufficient information regarding the factors that were taken into account in making the decision to allow the Applicant to understand why and how the decision was made.

2The Applicant alleged that the Society did not comply with the Board’s order. The Board granted an extension of time. The Board reviewed the Society’s first response dated May 12, 2015. That response referred to “communications between counsel and workers at the time the Protection Application and other pleadings were constituted all of which are protected by solicitor/client privilege and thereby not subject to disclosure.” The response also recites the rationale for use of the stamped documents that was provided by Counsel at the hearing including the legal position on obtaining consents for sharing the documents. The response did not indicate that these were the rationale used in the past. They represent a re-stating of the legal positions presented at the hearing and add nothing to the understanding of what occurred in the past.

3The Board made the following finding and direction on May 14, 2015:

The Board has reviewed the Society’s letter. On its face, the Society’s explanation does not add anything to what was heard before the Board and the rationale it provided at the time of the hearing. The Board’s order mandates the Society to explain why it did not follow the Ministry and agency confidentiality policies. To do so in a meaningful way, the Society should reference the policies which are clearly set out in the decision and respond with information about how the decision was made to deviate from the policies at the time the decision was made. If the Society did not turn its mind to the policies at the time, an admission of this and an explanation as to why not would be an appropriate part of a response.

The Society shall have until June 1, 2015 to comply with the order.

4The Board received a second response dated, June 3, 2015 which the Applicant advised he has not received. The second response states:

A further review of the historic content of the Society’s file relating to the critical time period immediately preceding the commencement of the Protection Application as well as at the time the parties agreed to the conduct of the assessment process by [the Doctor], reflects nothing that could supplement that which has previously been provided.

The position of the agency is that the appropriate course of action was pursued after full consideration of legal obligations, mandates and policies. Additionally, the access to Society files by [the Doctor] was done in accordance with standard practise that is followed by multiple agencies in the province and, as well, having ha[d] communication with and concurrence from [the Applicant’s] counsel.

5The Applicant submitted that the Society had failed to comply with the Board’s order.

6On July 3, 2015, the Board held a teleconference on compliance and heard from the parties. The Board had specific questions about the review of the file done by the Society as part of its process of responding to the Board’s order. It is not unusual or unexpected that the Society would look back at the file in order to respond to the order in a meaningful way.

7The Society indicated the following at the teleconference:

• Counsel and the Instructing Client who was the witness in this proceeding (“witness”) reviewed the file.
• The witness was not involved in the decision to share the documents.
• They could not ascertain from the file review who made the decision to share the documents with the assessor.
• Not everyone who was involved with the Applicant’s family at the time is still an employee of the Society.
• The file does not mention either the Society or the Ministry policy on case information disclosure/confidentiality.
• There is no analysis in the file about following or not following the Society or the Ministry policy.
• There are no notes in the file explaining how or why the documents were being used.

8The Applicant pointed out that under the Society’s Policy, senior management needs to make the decision, access to the file is limited and thus there should be a record of who accessed the file and the Society is obliged to make notes on all decisions. The Applicant also referred to an email from the disclosure in this case indicating which Society staff sent the documents to the assessor.

9The Society has not provided a detailed explanation of what happened with respect to not following the policies, as it was ordered to. The answers to the Board’s questions provide no further particulars but they do appear to confirm that at the time the decision to share the documents was made, no one turned their mind to either the Ministry or Society Policy. The Board has already found that the Society did not follow the policies. The Society has not directly admitted that it did not consider the policies but that seems to be the case. Why it did not do so remains a question that the Society says it cannot answer today based on looking back on the file. The Board will not go behind this answer or probe this issue further, given the limits on its ability to enforce its orders in s. 68 applications where the Statutory Powers Procedure Act R.S.O. c. S.22 does not apply. The Board’s decisions remain a matter of record as between the parties.

10The Applicant requested that he be permitted to use documents and information from this proceeding to speak to legal counsel. The Society did not oppose. The Board permits this. The Applicant also sought that the Confidentiality Order be lifted to permit him to bring a civil action against the Society. The Society opposed this request.

11The Board will routinely amend its Confidentiality Orders for the purposes of litigation involving the parties to the Board’s proceedings. The Board will not lift its order completely in relation to documents or information in this instance. It will be for the Court to decide what documents and information it properly needs for the litigation to proceed. The Board will permit reference to information from the Board’s proceedings in pleadings and the use of the Board’s Reasons for Decision and Decision on Compliance, in civil proceedings between the Applicant and the Society.

12The Board amends its Confidentiality Order as follows:

AMENDED CONFIDENTIALITY ORDER

Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings, except with an order of the Court or the Board, as appropriate. The Applicant may share all documents and information from this application with legal counsel. The Applicant may refer to information from these proceedings in civil litigation between the Applicant and the Society and may use the Board’s Reasons for Decision and Decision on Compliance in civil litigation between the Applicant and the Society. The Court is best suited to decide what documents if any, it will permit the parties to use in any litigation.