NS v. Windsor-Essex Children's Aid Society, 2017 CFSRB 32

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

NS Applicant

-and-

Windsor-Essex Children’s Aid Society Respondent

DECISION

Adjudicator: Jay Sengupta, Theresa Hughes Date: December 21, 2017 Citation: 2017 CFSRB 32 Indexed as: NS v Windsor-Essex Children's Aid Society (CFSA s.68)

APPEARANCES

NS, Applicant James Ludwig, Representative

Windsor-Essex Children’s Aid Society, Respondent Jack Sullens, Counsel

Introduction

1This is an Application filed under s.68(5) of the Child and Family Services Act, R.S.O.1990, c.C.11, (the “Act”). The applicant alleges that the Society did not comply with the Internal Complaint Review Panel (“ICRP”) process conducted on January 16, 2017 in that it did not hear the Applicant’s concerns during the ICRP meeting, did not provide him with reasons for decisions that affect his interests in relation to the Society’s investigation into allegations against him, and by inaccurately recording information in the Applicant's file.

2The issues before the ICRP that were identified in the Applicant's submissions as the subject of the complaint to the Board included the following:

1. The alleged failure of the Society to interview all relevant witnesses including the Applicant in undertaking its investigation.
2. The alleged failure of the Society to share information regarding the time periods when the Applicant may have had contact with the Child, HF.
3. The Society's alleged failure to consider other explanations, such as the child's history of physical abuse in arriving at its conclusions.
4. The Society's alleged false statement to the Applicant with regard to the availability of a police interview of the child.
5. The Society's alleged refusal to remove the Applicant's name from the Child Abuse Registry.
6. The Society's alleged persistent position stated in the file that the Applicant was guilty of the allegations made against him.
7. The Society's alleged continued “libelling” of the Applicant as being subject to a charge of sexual assault since the Applicant's acquittal of the criminal charges as of [date].
8. The Society's alleged failure to follow through on its January 12, 2017 commitment to review matters with a view to training staff to do more accurate and comprehensive investigations.

3A hearing into this Application took place on December 4, 2017 in Windsor, Ontario before a panel of this Board. The Board panel heard from NS on his own behalf. Terry Johnson, presently the Interim Executive Director of the respondent society, who held the position of Chief Operating Officer at the material time, gave evidence on behalf of the respondent. For the reasons that follow, this Application is granted in part.

the law

4Section 68 of the Act reads as follows:

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.

(2) Where a society receives a complaint under subsection (1), it shall deal with the complaint in accordance with the complaint review procedure established by regulation, subject to subsection 68.1(2).

(3) A society shall make information relating to the complaint review procedure available to any person upon request.

(4) Subject to subsection (5), the decision of a society made upon completion of the complaint review procedure is final.

(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.

(6) Upon receipt of an application under subsection (5), the Board shall give the society notice of the application and conduct a review of the society’s decision.

(7) The Board shall be composed of members with the prescribed qualifications and prescribed experience.

(8) The Board may hold a hearing and, if a hearing is held, the Board shall comply with the prescribed practices and procedures.

(9) The Statutory Powers Procedure Act does not apply to a hearing under this section.

(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.

(11) A notice of disagreement referred to in clause (10)(a) shall be in the prescribed form if the regulations so provide.

(12) A society 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.

(13) This section as it read immediately before the day this subsection came into force continues to apply in respect of complaints made to a society before that day and of any reviews requested of the Director before that day.

background

5The applicant, NS, lived in a common law relationship with the biological mother of HF (the “Child”) during the material time. When the respondent society received a referral alleging that the applicant had sexually assaulted the Child over a number of years, it removed her from her mother’s home in [date]. The Child was 11 years old at that time. Since then, she has remained in the care of her maternal grandparents.

6The applicant was criminally charged with sexual assault and invitation to sexual touching. Following a trial held in Windsor on [date], he was found not guilty of the two charges.

7The respondent society conducted an investigation of the allegations made in the referral of September 28, 2014, and concluded that the allegations of sexual abuse had been “verified” on November 4, 2014. The decision to verify the allegations has since been revisited and the society has changed its decision from “verified” to “inconclusive”. That second decision was communicated to the applicant in a letter dated January 12, 2017.

8The applicant sought and was granted a meeting with an ICRP of the respondent society. The applicant and his representative met with a member of the Board of Directors of the respondent society, the Chief Legal and Human Resources Officer and the Chief Operating Officer.

9During the meeting, held on January 16, 2017, the applicant raised the issues outlined in paragraph 2 of this decision (see above).

10Detailed notes of the ICRP meeting were taken by a member of the society’s staff. At the close of the meeting, the deadline to provide written responses to the issues raised by the applicant was extended by the parties on consent.

11Following receipt of the written response arising out of the ICRP, dated April 3, 2017, and remaining unsatisfied with the results, the applicant sought a review before this Board.

analysis

12The Board’s review under section 68(5) is limited to determining whether the ICRP followed the procedures required by Regulation 494/06, listened to the concerns set out in the complaint and provided reasons for the decision following completion of the ICRP process. The Board’s role is to ensure that children’s aid societies meet the legislative requirements for internal complaints and provide complainants with meaningful processes where their complaints are heard and reasons are given. Under section 68(5), the Board’s mandate is to oversee the complaints process.

13Sections 1 through 10 of Regulation 494/06 spell out the requirements surrounding the ICRP process. Broadly speaking, those provisions outline the timelines to be met by the society upon receipt of a complaint in writing, the rules governing composition of a panel under this process and the requirement that the society follow up with a written summary of the results of the meeting.

14Although the applicant raised a concern that the ICRP was not properly constituted as it did not have a person external to the society, the Board is satisfied that the respondent did not act in contravention of the regulation. Section 6 of Regulation 494/06 reads as follows and provides that a member of the Board of Directors of the society may be selected to fill the role of the “person external to the society”:

6(1) The members of the ICRP shall be selected by the executive director of the society and shall include a senior manager from the society, other society staff as required and at least one person who is external to the society.

(2) A person selected to be a member of the ICRP who is external to the society may be a member of the society’s board of directors.

(3) No person selected as a member of the ICRP shall have had any direct involvement with the complaint being reviewed.

That was the case in this ICRP. In addition to the COO and the Chief Legal and Human Resources Officer, neither of whom had direct involvement with the complaint, the third member of the ICRP was a member of the society’s board of directors.

15During his testimony, the applicant acknowledged and agreed that he and his representative had been given an opportunity to make a presentation about issues of concern to him. He agreed that neither he nor his representative were cut off, stopped mid-stream or prevented from raising their concerns. They were able to raise all their issues and provide the society with all documents they intended to submit.

16However, the applicant argues that the society failed to properly respond to the concerns he raised during the meeting about the allegedly flawed process leading the society to its original decision finding the allegation of sexual abuse was verified.

17Having reviewed the concerns outlined in the documentary record as well as during the course of the oral hearing, the Board finds that with the exception of the two issues addressed below, the society provided reasons for decisions made that impacted on the applicant’s interests. While the applicant clearly disagrees with the conclusions reached by the ICRP panel, meaningful explanations were provided with the exception of the two issues canvassed in greater detail in paragraphs 20 through 23 (below).

18For example, although the applicant argues that he had asked the society to explain why it had not found information that he was not in the province during some of the times the alleged abuse had occurred persuasive and says that the answers were non-responsive, it is clear from the letter sent to the applicant following the ICRP, that is not the case. The letter dated April 3, 2017, confirms the question was asked and explains, in some detail, the reasons that the society believed the complainant child’s account concerning the allegations of sexual abuse and preferred it to his version of events.

19Similarly, the applicant continues to insist that following the decision being amended from “verified” to “inconclusive”, the society should have removed his name from the Child Abuse Registry. However, it is apparent from the April 3, 2017 letter, as well as the testimony from the society’s Interim Executive Director, that the society has, on a number of occasions, outlined and explained the steps the applicant can take to have his name removed from the Registry. Moreover, it has confirmed in writing that the society will indicate that it agrees with removing his name from the Registry when the administrators of the Registry seek its input.

20The two deficiencies arising out of the ICRP process that are apparent from the documentary record and were confirmed during the hearing are the following:

1. The lack of an explanation as to why the verification process proceeded to a conclusion prior to the society receiving access to certain interviews and transcripts of interviews; and
2. The lack of an explanation as to why the society did not interview the Child’s peers, who the applicant had identified as having relevant information.

21In respect of the first of those issues, the timeline is informative. The verification decision was made on November 4, 2014. The transcript of the interview of the applicant by the Windsor Police Department was obtained by the respondent society on November 13, 2014 and the taped interview of the Child by the Windsor Police Department was received at the end of December 2014.

22Ultimately, according to the letter communicating the change of the verification decision, dated January 12, 2017, the society pointed to a review of the videotaped interview with the Child as being part of the reason for the change in the conclusion. What was not explained was the reason the society proceeded to make a verification decision on November 4, 2014, in light of the outstanding videotaped interview and interview transcript.

23In respect of the second issue, while the society’s own meeting notes acknowledge that the applicant raised the question of why the Child’s peers were not interviewed as part of the verification process, the written response dated April 3, 2017 speaks only to the society’s reasons for not conducting an in person interview with the applicant himself, leaving entirely unanswered the issue of the society’s position in respect of why peer interviews were not conducted as part of the process of verification of abuse.

24During the course of the hearing, the society, through its counsel, agreed that an order should be made requiring it to provide meaningful reasons explaining its thinking with respect to the issues outlined above.

order

25Within 30 days of the date of this Order, the respondent society shall provide its reasons for the following in writing to the applicant:

a. why the verification process proceeded to a conclusion prior to the society receiving access to certain interviews and transcripts of interviews; and b. why the society did not interview the Child’s peers, who the applicant had identified as having information relevant to the allegation of abuse.

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.