DP v. Children’s Aid Society of Hamilton, 2017 CFSRB 30

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

DP

Applicant

• and -

Children’s Aid Society of Hamilton

Respondent

REASONS FOR DECISION

Date: October 26, 2017

File Number: CA17-0195

Citation: 2017 CFSRB 30

Indexed as: DP v. Children’s Aid Society of Hamilton (CFSA s.68)

INTRODUCTION

1This is an application under s. 68.1(4)4 and5 of the Child and Family Services Act, R.S.O. 1990 c. C.11 (“Act”). The Applicant alleges that the Society did not hear him or provide him with reasons for decisions affecting his interests.

2The narrative portion of his application is reproduced below:

While having a conversation with [name] she was informed about issues of custodial interference and parent alienating activities and stated she would not investigate.

The CAS also refused to produce [name] for questioning during a hearing in September 2016.

Innacuracies

[Name] stated possible history of domestic violence – no evidence to support CAS was ordered to provide evidence and has refused.

[Name] stated I admitted to striking [name] during her second investigation. This is a false accusation as [name] was ordered by the CAS not to have any contact with me.

The ICRP took place after the review Board hearing and the CAS have refused [name] to testify.

3The Applicant has filed 5 previous applications concerning his interactions with the Respondent Society during a particular, time-limited, historical period involving his son (the “Child”), who is now over 16 years of age. Specifically, the Applicant has filed applications CA12-0029, CA12-0127, CA13-0006, CA16-0146, CA16-0181 and the current application CA17-0195.

4Upon receipt of the present application, the Board convened a preliminary hearing to hear submissions from the parties in respect of whether this application was eligible to proceed and, if so, whether it should be dismissed as an abuse of process and whether the Applicant should be declared a vexatious litigant.

5For the reasons that follow, the portions of the present application that are eligible to proceed are dismissed as an abuse of process and the Applicant is declared a vexatious litigant. He may not bring any further applications to the Board as against this Respondent Society with respect to his interactions with it concerning his son, who has now turned 16, without first obtaining the permission of the Board.

ANALYSIS

Eligibility

6In the present case, the Board is satisfied that some of the issues raised relate to child protection services sought or received by the Applicant who is a parent. They are, therefore, matters that are eligible for review as they are within the jurisdiction of this Board.

7However, other issues relate to matters that occurred during the course of litigation, specifically whether certain witnesses attended or provided evidence during previous hearings before this Board. Those issues do not concern services sought or received from a Children’s Aid Society; nor do they relate to whether the Respondent Society heard the Applicant or provided him with reasons for decisions made by it that affect his interests in respect of child protection services sought or received by him. Accordingly, those issues are not properly before this Board and are not eligible to proceed.

Abuse of Process

8Section 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.

9Although the SPPA does not apply in s.68.1 applications, 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.

10In addition to the SPPA, the Board is bound by the SJTO Common Rules. Rule A8.1 of the SJTO Common Rules reads as follows:

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

11The 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".

12In my view, a decision maker ought not to conclude that the inclusion in an application of allegations that have been previously litigated 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.

13The 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.

14With 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.

Background Information

15The Applicant’s interactions with the Respondent Society stem from investigations by the Society of a number of referrals that occurred between 2011 and 2013. These referrals were both made about and by the Applicant.

16The first of these involved a referral to the Society by the Child’s school, in which it was alleged that the Child had disclosed that his father was mean towards him, spoke negatively about the maternal side of the family in front of the Child, threw things in the home and hit him on the back of the head. This first referral was made in November 2011.

17Subsequently, the Applicant complained to the Respondent Society in 2012 that he had concerns about the Child’s maternal family speaking negatively about him in the Child’s presence and he alleged sexual, physical and emotional abuse of the Child by the maternal family.

18Those two investigations were closed in February 2012.

19There was a subsequent investigation in April 2013, following which a letter, dated May 14, 2013, was sent to the Applicant. In that letter, the Respondent indicated that allegations that the Applicant had hit the Child on the head, yelled and sworn at him, spoken negatively about the Child’s mother and maternal grandparents in front of him had been verified. It went on to state that the referrals offered to the Applicant had been declined, that he had been cautioned against the continuing use of physical discipline and that the Respondent’s file was being closed.

20The Respondent Society conducted two Internal Complaint Review Panel (“ICRP”) processes at the request of the Applicant in 2012. At around the same time, the Applicant filed several applications with this Board (CA12-0029, CA12-0127, CA13-0006) alleging that he was not heard or provided with reasons for decisions affecting his interests (s.68.1(4)4 and 5) and that his file contained inaccuracies that had not been resolved by the ICRPs (s.68(5)). Two of those applications resulted in full hearings and the third application was withdrawn at the hearing.

21There have been no subsequent referrals to the Society concerning the Child and consequently no subsequent investigations, file openings, verifications of allegations or file closings. In other words, the Applicant has not sought or received child protection services since the letter closing the file in May 2013.

22However, since that time, the Applicant filed two applications with this Board in 2016 (CA16-0146 and CA16-0181) in which he again raised concerns about the events that took place between November 2011 and May 2013.

23CA16-0146 proceeded to a hearing on the issue of whether the Applicant was heard and provided with reasons in respect of his interactions with the Respondent Society during the 2013 investigation. The application was dismissed.

24During a preliminary hearing into CA16-0181, the Respondent sought to have the Applicant declared a vexatious litigant. It argued that it had engaged in numerous meetings, two ICRPs, telephone calls, pre-hearing conference calls and three hearings before this Board, despite which the Applicant continued to raise the same historical issues; issues which the Respondent argued have been heard and adjudicated. As the application did not proceed, no decision was made with respect to the Respondent Society’s request. However, the Decision on Eligibility, dated October 31, 2016, indicated that the Respondent could raise the issue should further applications be filed with respect to the same issues.

25In my view, the issue of whether the Applicant was heard or provided with reasons for decisions that affected his interests and whether inaccuracies exist in his file has been thoroughly canvassed in the 5 previous applications. The current application is, at best, a reframing of issues and themes already fully canvassed, considered and decided by this Board.

26Specifically, the Board’s decisions in D.P. v. Hamilton Children’s Aid Society (CFSA s.68), 2012 CFSRB 18, D.P. v. Children’s Aid Society of Hamilton (CFSA s.68), 2013 CFSRB 25; D.P. v. Children’s Aid Society of Hamilton (CFSA s.68), 2013 CFSRB 30; and D.P. v. Children’s Aid Society of Hamilton, 2016 CFSRB 51, [Files CA12-0029, CA13-0006, and CA16-0146] all address the question of whether the Applicant was heard and provided reasons and the Applicant’s concerns about inaccuracies in his file were thoroughly canvassed in those hearings.

27I 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 Applicant had a full opportunity to canvass all the issues in dispute.

28Accordingly, the allegations within the Board’s jurisdiction are dismissed as allowing them to proceed to a hearing would amount to an abuse of process.

Declaring the Applicant a Vexatious Litigant

29Rule A8.2 of the SJTO Common Rules reads as follows:

Where the tribunal finds that a person has persistently instituted vexatious proceedings or conducted a proceeding in a vexatious manner, the tribunal may find that person to be a vexatious litigant and dismiss the proceeding as an abuse of process for that reason. It may also require a person found to be a vexatious litigant to obtain permission from the tribunal to commence further proceedings or take further steps in a proceeding

30The leading decision on the factors that Courts have considered in determining whether an individual is a vexatious litigant were described by the Ontario Court of Appeal in Foy v. Foy (No.2), 1979 1631 (ON CA),. These factors are summarized in Lang Michener Lash Johnston v. Fabian, [1987] O.J. No . 355 (H.C.), paragraph 19 (“Lang Michener”):

(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and

(g) the Respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

31It is not necessary that all of these factors be present in order for an individual to be declared a vexatious litigant. In order to declare the Applicant to be a vexatious litigant, the Board must be satisfied on an objective standard that the Applicant has persistently and without reasonable grounds, instituted vexatious proceedings or conducted himself in a vexatious manner during the proceedings. Declaring an individual to be a vexatious litigant is an extraordinary step and one that should not be taken lightly.

32In the circumstances of this case and for the reasons that follow, I find that there are sufficient grounds to make such a declaration and to require the Applicant to first seek permission from the Board before initiating any further applications.

33The aspects of the present application that do not concern procedural matters involving previous hearings before this Board and that are eligible to proceed also deal with the events from the time period between November 2011 and May 2013 (see above).

34In considering the factors outlined in the Lang Michener decision and having regard to the whole history of the matter, while the Applicant had legitimate grounds to seek a review of the Society’s actions in the earlier applications, his subsequent filings amount to the same grounds and issues being “rolled forward, repeated and supplemented”.

35The present application (CA17-0195) follows a thorough consideration of all issues raised by this Board in three decisions (CA12-0029, CA13-0006 and CA16-0146) following full hearings of the events that took place between November 2011 and May 2013. It also follows two ICRPs held by the Respondent and numerous meetings and phone calls between the parties.

36In filing this most recent application following the clear direction in the October 31, 2016 Decision on Eligibility, and there having been no intervening child protection service sought or received, the Applicant is engaging in conduct clearly described by the court in the Lang Michener decision as vexatious: specifically actions brought for an improper purpose, including the “harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights”.

CONCLUSION

37Accordingly, the present Application is dismissed as an abuse of process and the Board declares the Applicant, [DP], to be a vexatious litigant in relation to issues stemming from or connected with his interaction with this Respondent Society in respect of child protection services sought or received by him. He cannot commence any application at the Child and Family Service Review Board with respect to such issues without first obtaining leave of the Board.

CONFIDENTIALITY ORDER

38Pursuant 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