M.H. v. Children’s Aid Society of Toronto, 2015 CFSRB 08

CHILD AND FAMILY SERVICES REVIEW BOARD

M.H.

v.

Children’s Aid Society of Toronto

REASONS FOR DECISION

Date: February 6, 2015

Citation: 2015 CFSRB 08

Indexed as: M.H. v. Children’s Aid Society of Toronto (CFSA s.68)

INTRODUCTION

1M. H., the Applicant (the “Applicant”), filed an Application pursuant to section 68(5) of the Child and Family Services Act, R.S.O., 1990, c.C.11, as amended, (the “Act”) on November 13, 2014. The Applicant was dissatisfied with the Internal Complaints Review Panel (the “ICRP”) process conducted by Toronto Children’s Aid Society (the “Society”) on September 23, 2014.

2As a result of the pre-hearing held on December 9, 2014, the Board determined that the issues to be heard would focus on the ICRP pursuant to section 68(5) of the Act and whether the ICRP followed the legislated process and heard the Applicant and provided her with reasons regarding its review of her complaint related to inaccuracies included in the her file.

3An in person hearing was held on January 15, 2015.

4The Board finds in favour of the Society with one exception noted in the following paragraphs.

5The Board’s reasons for this decision follow.

BACKGROUND

6The Applicant and the Society agreed to participate in an ICRP as the result of terms of settlement dated July 25, 2014 relating to a previous complaint to the Board. The agreement signed by the parties stipulated that the ICRP would take place by September 30, 2014. The focus of the ICRP was to review inaccuracies in the Society’s file that the Applicant had identified in her earlier complaint.

7The Society scheduled the ICRP on September 23, 2014 in accordance with the terms of the agreement. The Applicant was provided with a written summary of the ICRP meeting on October 7, 2014.

8The Applicant was not satisfied with the outcome of the ICRP as it related to inaccuracies and applied to the Board as a result.

ANALYSIS

9The Board has authority to determine if the Society complied with the regulations regarding the ICRP process, whether the Applicant was heard when she raised concerns about inaccuracies in the file and whether she was given reasons for decisions made in the course of the ICRP process.

10The Board’s authority and the Society’s obligations relating to the ICRP process are found in the following sections of the Act:

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(5) If a complaint relates to one of the following matters, the complainant may apply to the Board in accordance with the regulations for a review of the decision made by the society upon completion of the review procedure:

1. An alleged inaccuracy in the society’s files or records regarding the complainant,

2. A matter described in subsection 68.1(4) including the following matters:

3. Allegations that the society has failed to comply with clause 2(2)(a):

Service providers shall ensure:

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; and,

1. Allegations that the society has failed to provide the complainant

with reasons for a decision that affects the complainant’s interests.

11In P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 33 at paras. 13-14, the Board described the purpose of s.68.1(4) and (5) and addressed s. 68.1(4).4 as follows:

The obligations under s. 68.1 (4) 4 and 5 reflect the importance of active participation for parents, providing them with the opportunity to have some degree of influence in the process. This is facilitated through genuine communication, giving applicants the opportunity to have input into decision making and to have enough information to make informed responses to, or accept decisions.

To be heard involves active listening, discussions, the society’s taking steps to address the Applicant’s concerns and communicating this to her so that she feels that her concerns are taken seriously and dealt with thoroughly.

12The “right to reasons” under the Act, means a right to a meaningful explanation about decisions that affect the applicant’s interests. In J.G. v. Windsor-Essex Children’s Aid Society, 2013 CFSRB 8, at para. 8, the Board held that:

With respect to s. 68.1(4) 5, what constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation. This may include an examination of the timeliness and the level of detail provided. A parent must be given sufficient information regarding the factors that were taken into account in making the decision to allow him or her to understand why and how the decision was made.

13Ontario Regulation 496/06, paragraphs 1-9 inclusive, applies to the ICRP process. The Applicant did not complain that the Society failed to comply with the regulations as they relate to the scheduling of the ICRP, the composition of the panel and the timing of the written summary. Rather her complaint related to the process and the outcome and the Board’s analysis will focus on these aspects of the ICRP.

14This analysis focuses on the ICRP process and outcome and not on the merits of the Applicant’s allegations about inaccuracies themselves.

15The Applicant agreed that the written summary dated October 7, 2014 reflected what occurred at the ICRP meeting. It included the inaccuracies that she brought to the attention of the panel. She indicated that the ICRP meeting lasted two hours but was not long enough, however, she acknowledged that “the majority of stuff I needed to say got said”. She felt that she did not have time to put all of the proof she was relying upon before the panel to support her allegations about inaccuracies and that the written summary did not make reference to the proof she was able to provide. She was also disappointed that the written reply did not make reference to staff being biased in the statements they had made with which she took issue.

16The Applicant expected the Society to be compelled by the proof that she submitted to the ICRP, to agree with her assessment and as a result to expunge the record of the alleged inaccuracies. She was particularly concerned regarding a statement made in the file that suggested that the Applicant was known to make complaints and when she enquired about evidence to support such a statement, she was not given an answer. She also indicated that this was an alleged inaccuracy that was not addressed at the ICRP.

17Both the Applicant and the Society made reference to notes that the Applicant was relying upon in presenting her alleged inaccuracies to the panel during the meeting. The Applicant provided the panel with a copy of these notes, entitled “Proof of altered statements and documentation by the worker” at the end of the ICRP meeting. The notes include a list of 18 statements the majority of which were about alleged inaccuracies in the records.

18The Society acknowledged that the records for the Applicant extended over a period nearly three decades long and this extensive history and file posed a challenge for the Society in addressing the Applicant’s concerns. The Society heard each of the alleged inaccuracies included in the Applicant’s notes during the meeting.

19After the meeting, the ICRP reviewed the Applicant’s original letter of complaint dated May 29, 2014, the written notes the Applicant was relying upon in the ICRP meeting, the comments the Applicant made in the course of the ICRP meeting that focused on the proof she was relying upon in making her allegations and the extensive file in order to prepare a response to the Applicant following the meeting. The Society conducted this review in order to determine whether the records regarding the statement were in error or not and, if in error, for the purpose of providing an addendum to the record in those cases where an error had been made.

20The written summary of the ICRP outlines in detail and addresses each of the 18 separate statements made in the Applicant’s notes which she referred to in the ICRP meeting. It clearly reflects each of the Applicant’s statements and provides the conclusion drawn with respect to each one as a result of a review of the file material and proof that she relied upon during the meeting. The Applicant had been informed at the ICRP meeting that her notes would be used to form the basis for a detailed response to her concerns.

21The ICRP written summary references one inaccuracy that was not included in the Applicant’s notes but was discussed during the ICRP meeting itself and that was of particular concern to the Applicant. This involved the naming of a specific child in the record and identifying her as the Applicant’s child which in the Applicant’s view was incorrect. The written summary addresses this concern in some detail and ultimately acknowledges that the Applicant was not the child’s biological mother and that this is noted in the record. The summary points out that the Society received a referral in 2004 regarding the same child and that a file for the Applicant had been opened in error and that the record reflects that it had been opened in error. There is a full and detailed account relating to this matter in the written summary.

22The Society acknowledged the particular concern that the Applicant continued to have about the name of the child remaining in the file and committed to provide a final determination to the Applicant by October 20, 2014 regarding whether the name itself would be removed from the record. A statement to that effect was included in the ICRP written summary.

23Similarly, there is a full and detailed account for each of the inaccuracies raised by the Applicant that demonstrates that the Society took each one of them seriously and reviewed its extensive files in order to be able to account for what was in the record. The Society identified three instances for which addenda would be prepared since in the Society’s view, the records relating to these matters were in error. In all other instances, the Society provided a detailed response to the Applicant’s written statement as well as any additional concerns raised regarding the matter during the ICRP meeting and concludes that the records were not in error. The summary points out the source for the possible disagreement between the Applicant’s view and the Society’s view regarding those instances where it believed that that was the case.

24The ICRP summary does not reference the concern the Applicant noted in her testimony regarding the alleged inaccurate statement made by a worker that she was prone to make complaints without the worker being able to produce evidence to support the statement. This alleged inaccuracy was not included in the written notes relied upon by the Applicant during the ICRP meeting. However, the Society testified that this was raised at the ICRP meeting and acknowledged that the Applicant had requested and it had considered her preference for a different worker since she had concerns about the worker. The Society expressed the view that this constituted evidence that the Applicant had made complaints and in this case the complaints were about the actions of a worker. It also clarified that the worker had commented that the Applicant tended to focus on the actions of others rather than her own as opposed to the comment suggested by the Applicant.

25This matter was clarified during the hearing process itself. In summary, the Society took the position, on the one hand, that the worker had not made a statement that the Applicant was prone to make complaints but rather had commented that she tended to focus on the actions of others rather than her own actions. And, on the other hand, the Society testified that there was evidence to suggest that the Applicant had complained given the request and consideration regarding providing another worker.

26The ICRP written summary stated that the addendum, the Applicant’s original letter of complaint, her notes outlining the specific inaccuracies referred to in the ICRP meeting, and the ICRP’s October 7, 2014 written response would be placed on the Applicant’s file. It further stated in writing that staff would be reminded of the importance of fully reviewing file information, and reiterated in its testimony that the review included the information related to the Applicant’s complaint regarding alleged inaccuracies as described. It also stated in the summary and reiterated in its testimony that when “a file is quite long, workers may summarize the history, this practice is not ideal as the content and meaning may be altered”. It underscored the need for new workers involved in new referrals and having occasion to review the file to review the entire file. In this case, it would now mean that any new worker would also have occasion to read the Applicant’s concerns regarding the content of the file and her views on its accuracy.

27On November 4, 2014, the Society provided a copy of the addendum noted in the ICRP written summary to the Applicant and stated that it would be added to the file. It also stated in the same letter that the Society was considering the Applicant’s request to have the child’s name removed from the file as referred to in the preceding paragraphs and that it would contact the Applicant at a future date with its decision.

28The outstanding issue related to the removal of the child’s name was raised during the hearing and the Society informed the Applicant that it had concluded that it would not be removing the name from the record because it was connected to other documents in the file. However, the Society had already acknowledged that the record indicated that the file opened in the Applicant’s name and relating to the referral about this child had been opened in error and furthermore, the records also indicated that the Applicant was not the child’s biological mother. At the hearing, the Society committed to provide the Applicant this decision in writing along with the reasons for the decision.

29As mentioned previously in these reasons,

To be heard involves active listening, discussions, the society’s taking steps to address the Applicant’s concerns and communicating this to her so that she feels that her concerns are taken seriously and dealt with thoroughly.

30The ICRP process described by the Applicant and by the Society meets the test set out in the preceding paragraph. There was a dialogue during the ICRP meeting that lasted approximately two hours. The written summary and the testimony of the Society attest to the detailed follow-up undertaken by the Society to consider and address the alleged inaccuracies. The test does not require that the Society agree with the position taken by the Applicant, although it did so in several instances in this case, but rather that it seriously consider that position and respond to it with its own position and the reasons for it.

31The ICRP written summary contains detailed reasoning and explanations in response to all of the alleged inaccuracies identified by the Applicant with one exception. It provides the Applicant with sufficient information regarding the information that was taken into account in making its decision to allow her to understand why and how the decision was made despite the fact that she might not agree with the decision made.

32The Board concludes based on a review of the written submissions and the testimony of the parties, that the Society heard the Applicant’s concerns related to alleged inaccuracies and gave her reasons for the conclusions that it reached upon a thorough review of the records related to them. The ICRP written summary is clear in this regard. The only exception is the outstanding conclusion regarding the removal of the child’s name from the record that the Society committed to put in writing along with its reasons.

33The Board concludes that the Society met its obligations under the Act to hear the Applicant during the course of the ICRP meeting and to provide her with a written summary that included its reasons for its decision regarding the alleged inaccuracies with the exception of the matter relating to the name of the child included in the record.

CONCLUSION

34The Board concludes that the Applicant was heard and given reasons as required under sections 68.1(4) 4 and 5 of the Act by the Society through its ICRP process including the written summary dated October 7, 2014 with the exception already noted. The following decision and order speaks to this exception.

Board Decision

35Section 68(10) of the Act empowers the Board to make orders as follows:

Upon completing its review of a decision by a society in relation to a complaint, the Board may,

(b) in the case of a review of a matter described in subsection 68.1(4), make any order described in subsection 68.1(7) as appropriate;

68.1(7) After reviewing the complaint, the Board may,

(a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;

(b) order the society to provide a response to the complainant within a period specified by the Board;

(c) order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act;

(d) dismiss the complaint; or

(e) make such other order as may be prescribed.

(f) order the society to provide written reasons for a decision to a complainant;

36The Board makes the following order relating to naming the child in the record in the event that the Society has not already done so. The Board orders the Society to provide to the Applicant within 14 days of the receipt of these reasons, a written statement of its decision regarding naming the child in the file along with the reasons for its decision and to add it to the Applicant’s file.

CONFIDENTIALITY ORDER

37Pursuant 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.

GAIL GONDA

_____________________

Gail Gonda

Presiding Member