CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
NB and JT
Applicants
- and -
York Region Children’s Aid Society and Peel Children’s Aid Society
Respondents
INTERIM DECISION
File Number: CA17-0091 and CA17-0196
Indexed as: NB and JT v. York Region Children’s Aid Society and Peel Children’s
Aid Society (CFSA s.68)
INTRODUCTION
1This is an Application filed pursuant to s. 68.1(4) of the Child and Family Services Act, R.S.O. 1990 c. C.11 (“Act”). The Applicants named both the Peel Children’s Aid Society (“Peel CAS”) and the York Region Children’s Aid Society (“York CAS”) as Respondents.
2An initial finding of eligibility to continue in the Board’s process was made on April 25, 2017. That eligibility finding was, through the inadvertence of the Board, sent only to Peel CAS and not to both Respondents. It was later sent to York CAS on July 21, 2017.
3In accordance with their obligations under the Board’s Rules, both Societies have filed Responses.
4To complicate matters further, since filing the present Application, one of the Applicants, [NB], filed another Application (Board File CA17-0196) on August 3, 2017, citing essentially the same concerns. As well, both Applicants have continued to file voluminous quantities of documents; sometimes in duplicate or triplicate. To avoid duplication and in the interest of dealing efficiently with this matter, the subsequent Application and all documents filed since April 25, 2017 have been considered as part of this Application (Board File CA17-0091).
5The documents filed by the Applicants and referred to in paragraph 4 (above), (both hard copies and electronic files) include internet articles, handwritten letters and notes from the Applicants to various agencies, legislative constituency offices and the courts, copies of correspondence received by them as well as endorsements and rulings from the courts.
6The Board has reviewed all of the materials filed by the Applicants as well as the Responses received from both Societies.
7For the reasons provided below, this Application is dismissed as against Peel CAS as an abuse of process.
8The Application will proceed to a Pre-Hearing Settlement Conference as against York CAS on the issues not addressed in Application File CA16-0144 (a previous Application filed by these Applicants as against York CAS).
Application Dismissed Against Peel CAS
9In its Response, Peel CAS seeks dismissal of the Application on the basis that to allow it to proceed would amount to an abuse of process. In support of this request, Peel CAS refers to a previous Application (Board File CA16-0122) filed by the Applicants naming Peel CAS as a Respondent, resolved as a result of the parties entering into written Minutes of Settlement on September 29, 2016, that provided for full settlement of all of the issues raised in Application CA16-0122.
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 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 arising in s.68 matters. 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 re-litigation 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 re-litigation 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 as against Peel CAS for the reasons set out below.
16In Minutes of Settlement entered into following a settlement facilitation process related to Board File CA16-0122, Peel CAS agreed to provide a letter outlining the answers to the following questions on or before October 17, 2016:
(a) Details concerning the events of November 10, 2014, including when and by whom the Respondent Society was contacted concerning [name]’s hospitalization and who reported injuries sustained by [name] to the Society. Verbal consent was obtained from [name] for the release of this information by the Society.
(b) Confirmation from the Society that it has reviewed the events in its file for the period between October 20, 2014, and October 30, 2014, and if the letter dated October 30, 2014, contains inaccuracies, providing confirmation of that fact and issuing a correcting letter.
(c) Confirmation that a review of the Society’s file between 2009 and 2013 was conducted to indicate whether Society staff ever advised [name] to withhold or deny access to the Applicants or to otherwise not honour or follow the terms of the court order regarding [names] and if such information is found, to outline the details of what [name] was told.
(d) Confirmation of correction of paragraph 15 of the Society’s response to the CFSRB Application filed by the Applicants (CA16-0122).
(e) Confirmation that a review of the file was conducted to determine whether it contains any information about any history of criminal conduct or mental health issues relating to [name], and if such information exists, an outline of the details of those entries.
(f) Confirmation that a review of the file has been conducted with respect to any complaints made by [name] with respect to protection concerns in 2012 and outlining any action taken with respect to those concerns.
17Although an allegation of non-compliance with the terms of the written Minutes of Settlement was received by the Board on November 1, 2016, past the deadline of October 24, 2016, the Board considered the allegation of non-compliance and found it to be unfounded. Board file CA16-0122 was then closed.
18Peel CAS argues that the substance of the allegations made by the Applicants concerning Peel CAS in this present Application have been dealt with in Board file CA16-0122.
19In reviewing this Application, I find that the Applicants’ allegations relating to Peel CAS in both Board Files CA17-0091 and CA17-0196 largely mirror those contained in the Board File CA16-0122. Specifically, the allegations refer again to the events of November, 2014, the hospitalization of [name], the alleged failure of Peel CAS to correct its records relating to that interaction, the Applicants’ wish to obtain records and information provided to the Peel CAS by police, hospital and the crisis team and, finally, an assertion that the Peel CAS did not comply with its obligations under the Minutes of Settlement relating to Board File CA16-0122.
20In my view, this amounts to a clear attempt by the Applicants to re-litigate the issues in the previous Application.
21The 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.
22I 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, re-litigation is warranted. I find no such reasons exist. The Applicants have 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 Board File CA16-0122.
23Accordingly, the allegations as against Peel CAS are dismissed in accordance with s.68.1(7)(e) of the Act, as allowing them to proceed to a hearing would amount to an abuse of process.
Allegations in the Present Application concerning York CAS
24The Board notes that a previous Application, Board File CA16-0144, was filed by the Applicants naming York CAS as a Respondent. Board File CA16-0144 was settled by way of Minutes of Settlement, dated August 11, 2016, and closed.
25The allegations that post-date the closing of Board File CA16-0144 are eligible to proceed within the Board’s process. The parties will be contacted by the Case Processing Officer to schedule a Pre-Hearing Settlement Facilitation conference.
CONFIDENTIALITY ORDER
26Pursuant 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
Jay Sengupta
Vice-chair
Dated at Toronto, Ontario this 19th day of September, 2017