H.K. v. Children’s Aid Society of Toronto, 2016 CFSRB 1

CHILD AND FAMILY SERVICES REVIEW BOARD

H.K.

v.

Children’s Aid Society of Toronto

REASONS FOR DECISION

Date: January 22, 2016

Citation: 2016 CFSRB 1

Indexed as: H.K. v. Children’s Aid Society of Toronto

(CFSA s.68)

1This is a review of a decision of an Internal Complaint Review Panel of the Toronto Children’s Aid Society by the Child and Family Services Review Board (“Board”) under s. 68 (5) of the Child and Family Services Act, R.S.O. 1990, c. C.11 as amended (the “Act”).

2The Applicant HK alleges that the ICRP did not hear her complaint by not listening to her side of the story and that it did not her with adequate reasons. The Society argued that the ICRP fully heard the Applicant’s complaint and provided her with meaningful reasons.

3The Board redirects the matter to the ICRP for further review.

BACKGROUND

4The Applicant is an employee of a large Childcare Centre where she worked for 27 years. The Centre offers services to children from 0 to 12 years of age and around 130 children attend the daycare. There is over 20 staff.

5An allegation was made to the Society by two or three employees working at the daycare that the Applicant was handling some infants roughly, was force feeding infants, was leaving infants sleeping in a “sitter” (chair) instead of a crib for a long period of time, as well as not letting other staff cuddle the children.

6A Society’s employee, an Intake Child Protection Worker (ICPW), proceeded to an investigation in June 2014 and on July 15, 2014 issued a letter to the Applicant concluding that the allegations had been all verified, that the Applicant had limited caregiving skills and that children were at risk of harm in her care.

7This verification had an important impact on the Applicant. She kept her job but was moved to take care of older children. Her health suffered and she testified she is still having problems eating and sleeping. She made a complaint to the Society on March 27, 2015. The Society did not proceed to issuing an eligibility decision on the complaint but rather decided that the Director of Intake would review the work of his employee, the ICPW. His conclusion was that there was no reason to overturn the verification decision. He informed the Applicant by phone, followed by a letter dated June 3, 2015. Following that communication with the Applicant, an ICRP was held on June 10, 2015 and the summary of the results of the meeting was issued on July 17, 2015. The composition of the ICRP panel is not in dispute. However, the Applicant raised the matter that the issuance of the summary of the results exceeded the regulated timeframe of 14 days, which the Society conceded at the hearing. The Board was satisfied by the explanation provided by the Society and will make no order on this point.

ANALYSIS

8The 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.

(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 complaint 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).

3. Any other prescribed matter. 2006, c. 5, s. 26.

9Section 68.1 (4) The following matters may be reviewed by the Board under this section:

(4) Allegations that the society has 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.

Board decision

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

(a) in the case of a review of a matter described in paragraph 1 of subsection (5), order that a notice of disagreement be added to the complainant’s file;

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

(c) redirect the matter to the society for further review;

(d) confirm the society’s decision; or

(e) make such other order as may be prescribed. 2006, c. 5, s. 26.

10The Board in Applicants v. Hamilton Catholic Children’s Aid Society (CFSA s. 68), 2014 CFSRB 29 addressed the role of the ICRP:

“(…) This way of proceeding does not ensure fairness in the internal review process and does not respect the intent of the legislation to have a separate and impartial internal review. The ICRP has a larger jurisdiction than the Board in its capacity to review and comment on Society’s actions and to recommend reviews and changes in practices. For example the Regulation requires the ICRP decision to be copied to the Society’s Executive Director to ensure that necessary actions and follow-up occur.”

11In M.M. and I.C. v. Family and Children’s Services of Frontenac, Lennox and Addington, 2015 CFSRB 23, the Board addressed its own jurisdiction in reviewing an ICRP decision:

“The Board made it clear prior to the hearing that it was not its role to determine whether the ICRP’s outcome was valid. However, in determining whether the ICRP took the Applicants’ concerns seriously, the Board did look at the nature and level of follow up engaged in by the ICRP. Outcome can be an indicator of whether an applicant was heard but this must be distinguished from disagreement about which outcome, based on genuine consideration of and follow up to the input of the Applicants. In this case, the outcome was not dismissive of the Applicant’s position; nor were the steps to achieve it. “

12The issue in this case, as the Applicant is not a parent according to the Child and Family Services Act, is the adequacy of reasons provided by the ICRP. In S.V.D. and M.V.D. v. Children’s Aid Society of the Counties of Stormont, Dundas and Glengarry 2015 CFSRB 47, the Board defined the obligations of the ICRP when proceeding to an analysis of the facts before it and the sufficiency of its decision:

21As stated previously, what constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation including an examination of the timeliness and the level of detail provided. A parent or complainants 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. By extension, the reasons for any decision need to take into account challenges to the validity of a society’s reasons that may be posed by a complainant in order to fully meet the test of being sufficient. That is, are the reasons for a society’s decisions: sound, just, well founded, based on logic or fact, and reasonable given all available information. Otherwise, societies have a license to make decisions that are unsound, unjust, not well founded and unreasonable.

As an internal administrative body, it has an obligation to act fairly.

13The Applicant testified that the ICRP panel did not listen to her version of the facts raised in the complaint against her. She testified that she had a chance to explain her version about the allegation of force feeding and how the daycare was instructed by the parents to proceed with the feeding. However, the Applicant testified that she did not have the opportunity to explain fully her version about the sleeping issue in the sitters (chair) as she was cut off and did not have a chance to complete her response. She testified that she did not have a chance to explain what the parents wanted the daycare to do when their children were not yet able to fall asleep in a crib. She did not have a chance either to discuss how the sitters (chair) were functioning.

14The Applicant also testified that the staff members who made the complaint were ganging up on her. She said that the ICRP did not listen to her when she was trying to explain how the rest of the staff or at least those who complained about her were working with the children and the challenges and surplus of work that the situation was creating for her. However, the Applicant agreed that she had a chance to explain to the ICRP the issue of her relationship with the staff who made the complaint and their motivation, as she perceives it, in making a complaint against her.

15The Board heard the evidence of the Society on the way the ICRP meeting was conducted through two Society’s witnesses who attended the meeting. They testified to explain the reasons behind the decision of the ICRP not to change the verification decision made by the ICPW. However, none of them were a member of the panel who made the decision.

16The ICRP decision is more a recitation of what was said at the meeting rather than a decision where the Applicant could understand the reasons why after hearing all the versions, the verification decision was not modified or that a new investigation or part of it was not requested by the ICRP to the Executive Director. It shows only that the Society and the Applicant were engaged in a discussion.

17Regarding the sleeping issue the decision refers to a recommendation made by the Coroner’s office and the standard of the Paediatrician Association. This information was not provided to the Applicant at the meeting. The decision did not explain what standard the Society was using to make an assessment of certain practices that could be placing children at risk of harm. One witness said that the Society has its own standard to assess risk of harm for infants sleeping in a sitter but these standards are not in the decision.

18The ICRP did not consider what were the policies, standards or directives applied by the daycare that had to be followed by its staff regarding sleeping arrangements. The Board considers that the ICRP should have inquired what requirements the daycare had about the sleeping arrangements. The Board found the fact that the ICRP did not consider if it was the daycare practices that were putting the children at risk or if it was the Applicant herself was unfair to the Applicant. How could an individual who followed the expectations of her employer be blamed as an individual, for practices over which the individual has no control. The Board does not know what standards were being applied in the daycare for the sleeping of the infants nor if the Applicant was or was not in contravention of those standards. These considerations should have been taken into account by the ICRP.

19The Applicant presented to the ICRP two letters of support. The first letter was signed by her supervisor and the second was signed by the 5 members of the Board of Directors of the day care centre. The Board of Directors’ letter mentioned that: “We also find this investigation lacks the due process needed and in our opinion it is unfair and an injustice to [the Applicant].” The decision does not explain what weight was given to those 2 letters.

20However, when asked what weight was given to those 2 letters of support, the Director of Intake testified that they were considered. Regarding the letter from the Supervisor, he said that in the referral the staff who made the complaint had mentioned that they had gone to the supervisor to complain and that the supervisor had taken no action. In the Director of Intake’s views the inaction of the supervisor affected the credibility of her positive recommendation of the Applicant. The Board does not have any evidence that the Applicant was given an opportunity to respond to that suggestion that the supervisor had not been responsive to the staff and the ICRP decision does not refer to that information in anyway.

21Regarding the letter from the Board of Directors, the same witness explained that often, members of Board of Directors have their own children in the daycare and they do not have an interest in finding that the level of care provided by the daycare staff is not adequate. This explanation is not part of the decision. No information was presented at the ICRP to confirm whether members of the Board of Directors have children of their own still at the daycare. To discredit a strong letter of support that also raised some important questions of fairness of the investigation with that very subjective argument is troubling.

22In the course of an investigation, a society has to apply the Child Protection Standards in Ontario. In Standard #4 titled: Conducting a child protection investigation, the steps to be followed are detailed. In the case of an Institutional investigation such as the one under review by the ICRP, the first 2 steps are always to be completed. The first one is of relevance and requires that interviews of a list of individuals be conducted including the facility administrator and the supervisor of the alleged perpetrator. Other steps may not be completed depending on the circumstances but the first and second steps must always be completed.

23The way the investigation had been conducted was at the center of the Applicant’s complaint to the Society. The Board asked who the investigator interviewed. The evidence is that the supervisor was not formally interviewed and no facility administrator was either. The decision refers to the fact that the ICPW interviewed enough people that were credible. At the hearing, a witness testified that the ICPW did not want to interview people outside the unit where the Applicant was working to avoid too many people being made aware of the investigation. That is understandable however the supervisor and a facility administrator had to be informed of the complaint made by the staff to the Society. The ICRP did not look into the compliance of the investigation with the Standard of investigation. This is an important oversight because the respect of those Standards is an assurance of due process for people subject to an investigation.

24In this case, the Board finds for a number of reasons that the ICRP decision does not answer the Applicant’s questions. The ICRP did not look at the conformity of the investigation with the Standards. It did not inquire whether the Applicant was acting on her own and in contravention of the daycare directives and practices in putting infants for naps in the sitter or if she was following the daycare rules or even the directives of parents. Also, according to the evidence at the hearing, the reasons provided for setting aside the two letters of support were not put to the Applicant who did not have a chance to respond or provide her perspectives. The explanations provided at the hearing were also quite subjective and not those of the panel.

25The decision of a society to verify an allegation is a serious decision. To mitigate the impact of its decision to verify in the case of the Applicant, the evidence of the Society at the hearing was that the Applicant, contrary to many others who are in the same situation of having allegations verified against them, was still working for the same employer and that the Society’s findings were confidential.

26The Board found that there should not be any consideration given by the ICRP to the fact that the Applicant did not lose her job and that the information was confidential. They are external to the investigation and to the review of the ICRP.

Conclusion

27The Board concludes that the ICRP did not provide the Applicant with reasons for its decision.

28The Board orders the ICRP to be reconvened to properly review and consider the following questions and to provide reasons for the conclusions it will reach.

1. Review the compliance of the investigation with the Child Protection Standards of Ontario and decide further steps

2. Review the practices of the daycare at the time the Applicant was investigated regarding the use of sitters and make the appropriate analysis of the institution responsibilities and the Applicant’s responsibilities in regard of that issue.

CONFIDENTIALITY ORDER

29Pursuant 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.