CHILD AND FAMILY SERVICES REVIEW BOARD

K.B.

v.

Durham Children’s Aid Society

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REASONS FOR DECISION

Date: May 19, 2017

Citation: 2017 CFSRB 14

Indexed as: K.B. v. Durham Children’s Aid Society (CFSA s.68)

INTRODUCTION

1This is an application under paragraphs 4 and5 of s.68.1(4) of the Child and Family Services Act, R.S.O. 1990 c. C.11 (“Act”).

2The Respondent Society filed its response and attended a settlement facilitation meeting. As the matter did not resolve during the settlement facilitation, the Board scheduled a pre-hearing teleconference to prepare for a hearing into this matter. At the pre-hearing teleconference, the Respondent Society argued that the Board lacks jurisdiction to proceed with some aspects of this application and sought dismissal of the balance of the application on the basis that to allow it to continue would be an abuse of process as the remaining issues have been resolved in a previous application (CA16- 0110) by way of written Minutes of Settlement.

3The Board sought written submissions from the parties on the issues raised by the Respondent Society. Those submissions have now been received and reviewed. For the reasons that follow, this application is dismissed.

THE LAW

4The relevant sections of the Act are as follows:

s. 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; and

(b) that decisions affecting the interests and rights of children and their parents are made according to clear, consistent criteria and are subject to procedural safeguards.

s. 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 review procedure is completed.

(2) If a person submits a complaint to the Board under clause (1)(b) after having brought the complaint to the society under section 68, the Board shall give the society notice of that fact and the society may terminate or stay its review, as it considers appropriate.

(3) A complaint to the Board under this section shall be made in accordance with the regulations.

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

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 68(1) as required under subsection 68(2).

2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.

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.

6. Such other matters as may be prescribed.

(5) Upon receipt of a complaint under this section, the Board shall conduct a review of the matte

(6) Subsections 68(7),(8) and (9) apply with necessary modification to a review of a complaint made under this section.

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

(e) dismiss the complaint; or

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

(8) The Board shall not conduct a review of a complaint under this

section if the subject of the complaint,

(a) is an issue that has been decided by the court or is before the court; or

(b) is subject to another decision-making process under this Act or the Labour Relations Act, 1995.

ANALYSIS

Jurisdiction

5Section 68.1(8)(a) provides that the Board will not deal with issues that are before the court or have been decided by the court. In her application, the Applicant has raised concerns about several matters that the Respondent Society argues fall within that category, specifically:

1. Inaccuracies in the affidavits filed by a CAS worker as part of the child protection court proceedings over the past two years; and

2. The delay in her appointment with a physician conducting a court ordered assessment as part of the child protection proceedings.

6I agree with the Respondent Society that these matters are squarely before the courts and fall within s.68.1(8)(a) and are, therefore, not within the jurisdiction of this Board for the following reasons.

7If the Applicant takes issue with the contents of an affidavit filed with the courts as part of the evidentiary record on the child protection matter, the appropriate action for her to take is to challenge or test that evidence in that forum. It is for the court hearing that evidence to decide whether it accepts the contents of that affidavit as reliable and relevant, and not a matter that is within the purview of this Board.

8Similarly, if there have been delays in meeting with an assessor appointed by the court, it is open to the Applicant to address her concerns about the delay to the court and to seek the appropriate direction or relief in that forum.

9Accordingly, the issues outlined above are dismissed, pursuant to s.68.1(8)(a), as they are not within the jurisdiction of the Board.

Abuse of Process

10Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990. C. S.22, as amended (the “SPPA”), provides that tribunals

may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

11Although s.68(9) of the Act specifies that the SPPA does not apply in applications brought under s.68.1, s.20.1 of O.Reg 494/06 provides the Board with authority to take steps to prevent an abuse of process. It reads as follows:

In order to provide for the just and expeditious resolution of a proceeding arising from an application requesting a review of a complain under s.68(5) or 68.1(1) of the Act, the Board may make such orders and give such directions in the proceeding as it considers proper to prevent abuse of its processes.

12The Ontario Court of Appeal considered the common law doctrine of abuse of process; in Taylor Made Advertising Ltd. v. Atlific Inc., 2012 ONCA 459 at paras 30 and

32. Relying on the Supreme Court of Canada’s decision in Toronto (City) v. CUPE Local 79, 2003 SCC 63 (“CUPE”), the Court of Appeal affirmed that the common law doctrine of abuse of process

(…) engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.

In determining whether legal proceedings ought to be dismissed as an abuse of process, the question is whether the proceedings would be “oppressive” or “vexatious" or “unfair to the point that they are contrary to the interest of justice".

13In my view, a decision maker ought not to conclude that the inclusion in an application of allegations that have been previously settled automatically constitutes an abuse of process. Rather, the decision must engage in a contextual analysis that takes into account all of the relevant factors and balances the interests of the parties in order to arrive at a just outcome overall.

14The CUPE decision establishes that the abuse of process doctrine precludes relitigation that would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice, while recognizing that fairness may dictate that relitigation be permitted in certain circumstances: See CUPE, above, at

paras. 37 and 52-55.

15With that in mind, and having carefully considered the matter, I am of the view that, in the particular circumstances of this case, it would be an abuse of process to permit this application to proceed to a hearing on the merits for the reasons set out below.

16The Applicant filed application CA16-0110 on May 24, 2016 (the May 2016 application). In that application she raised a number of issues that are summarized below:

a. Inaccuracy of documents prepared by Society workers for the court process in the child protection matter;

b. The Respondent Society’s views about her mental health;

c. Mishandling of an allegation that her child was exposed to guns while in her care;

d. A phone call made by her son to her from a bathroom while in his father’s home;

e. Her son’s exposure to adult conflict between his father, the Applicant and the Applicant’s step-mother;

f. General concerns about the failure of the CAS to adequately or fairly investigate protection concerns about her and protection concerns she has raised about her son’s father; and

g. General complaints about access arrangements.

17The parties proceeded to a settlement facilitation session, conducted by a member of this Board on August 15, 2016. Following a discussion, the parties entered into Minutes of Settlement in full and final settlement of the issues in the May 2016 application.

18On September 12, 2016, the Applicant alleged that the Respondent Society did not comply with the terms of the Settlement Agreement. The Board held a hearing on October 11, 2016 on the issue of compliance with the terms of the Minutes and, on October 18, 2016, issued a written decision finding the Respondent had complied with the terms of the Settlement Agreement.

19This application was filed on October 25, 2016.

20The Applicant checked off all the available boxes in the application form and sought a review on the basis that the Respondent had breached all aspects of s.68.1(4). As indicated above, the application was found eligible to proceed on a more limited basis under paragraphs 4 and 5 of s.68.1(4).

21In reviewing this application, I find that the Applicant’s allegations largely mirror those contained in the May 2016 application. Specifically, the application refers again to the Respondent Society’s role in the apprehension of the Applicant’s son, the Applicant’s views about what she describes as the Respondent’s misapprehensions about her mental health, allegedly false information in the affidavits filed with the courts by Respondent Society staff, the failure of the Respondent Society to take adequate or fair actions when the Applicant has raised protection concerns about her son while in the care of his father and her concerns about difficulties during access visits and how they are dealt with by the Respondent Society.

22Separate from the matters which are not within the Board's jurisdiction, I find that the remaining issues in this application, filed seven days after the decision closing the May 2016 application, is a clear attempt by the Applicant to relitigate the issues in the May 2016 application.

23The parties to litigation before this Board, who engage in the settlement facilitation or mediation processes offered by the Board and who arrive at settlements of the issues in dispute should be able to rely on those settlements as a final resolution of those particular issues. To find otherwise would undermine the integrity of the Board’s processes and would result in parties being unwilling to participate in those processes.

24I have considered whether there are any reasons that would mitigate my conclusion; that is to say whether fairness demands that in the particular circumstances of this case, relitigation is warranted. I find no such reasons exist. The Applicant had a full opportunity to canvass all the issues in dispute within the settlement facilitation process and entered voluntarily into Minutes of Settlement which finally resolved the May 2016 application. Accordingly, the allegations within the Board’s jurisdiction are dismissed as allowing them to proceed to a hearing would amount to an abuse of process.

CONCLUSION

25The Board concludes that some of the allegations raised by the Applicant are not within its jurisdiction given that they are matters that are before the courts. The balance of the allegations concern issues previously raised by the Applicant in the May 2016 application closed as settled by way of written Minutes of Settlement.

26Accordingly, the application is dismissed in accordance with s. 68.1(7)(e) of the

Act.

CONFIDENTIALITY ORDER

27Pursuant 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.

Jay Sengupta