BS v. Brant Family and Children’s Services, 2019 CFSRB 38

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

BS Applicant

-and-

Brant Family and Children’s Services Respondent

DECISION

Adjudicator: Catherine Bickley Date: August 08, 2019 Citation: 2019 CFSRB 38 Indexed As: BS v Brant Family and Children’s Services (CYFSA s. 120)

WRITTEN SUBMISSIONS

BS, Applicant Self-represented

Brant Family and Children’s Services Birkin J. Culp, Counsel

Introduction

1The Applicant currently has two Applications before the Child and Family Services Review Board (“CFSRB”): CA19-0008 and CA19-0036 (“the current Applications”). Both are complaints against the Respondent filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”).

2In a May 24, 2019 Case Management Direction (“CMD”), the CFSRB directed the parties to provide by June 10, 2019 written submissions on the following issues:

1. Should the Applications be dismissed as abandoned?
2. Should the Applications be dismissed as an abuse of process?
3. Should the Applicant be declared a vexatious litigant?

3The Applicant did not make submissions and instead sought to withdraw the current Applications.

4For the reasons set out below, the Applicant’s request to withdraw the current Applications is granted and the Applicant is declared a vexatious litigant.

background

5The Respondent became involved with the Applicant and her family in January 2018. It opened an investigation after employees of a local hospital contacted it with concerns about the Applicant’s mental health and the welfare of her infant son. The Respondent ultimately brought a child protection proceeding in the Ontario Court of Justice. That proceeding ended in January 2019. The Respondent closed its file in February 2019.

6Between February 2018 and February 2019, the Applicant filed eight Applications with the CFSRB on her own behalf and one Application in which she acted as agent for her spouse. The CFSRB dismissed four of the Applications and granted the Applicant’s request to withdraw the other three. The current Applications are the eighth and ninth filed by the Applicant. The history of all nine Applications is set out in more detail below at paragraphs 16 to 39.

analysis and decision

The Applicant’s request to withdraw Applications CA19-0008 and CA19-0036 is granted

7The Applicant was warned that the current Applications could be dismissed as abandoned if she did not make submissions by the June 10, 2019 deadline. She did not make submissions or otherwise communicate with the CFSRB until eight days after the deadline at which point she sought to withdraw the current Applications.

8The Applicant’s request to withdraw the current Applications (CA19-0008 and CA19-0036) is granted.

9This withdrawal, however, is not without consequences.

10First, the withdrawal does not prevent the CFSRB from considering and deciding whether the Applicant is a vexatious litigant: Atas v. Dale and Lessmann LLP, 2018 HRTO 894.

11Second, the Applicant’s pattern of withdrawing applications at a time when the Respondent has already made extensive submissions and a decision is pending on whether the applications should be dismissed is one of the factors that I have considered in deciding that she should be declared a vexatious litigant.

It is not necessary to decide whether proceeding with the current Applications would be an abuse of process

12Given the withdrawal of the current Applications, it is not necessary to decide whether permitting them to proceed further in the CFSRB’s process would be an abuse of process. The only issue remaining before me is whether the Applicant is a vexatious litigant.

The Applicant is declared a vexatious litigant

The CFSRB Has Jurisdiction to Decide Whether an Applicant is a Vexatious Litigant

13In responding to a previous request by the Respondent that she be declared a vexatious litigant, the Applicant argued that the CFSRB lacks the authority to declare a person to be a vexatious litigant. That is incorrect. Rule A8.2 of the SJTO Common Rules of Procedure states:

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.

14The CFSRB has previously made vexatious litigant declarations: DD v. Children’s Aid Society of Toronto, 2018 CFSRB 56, DP v. Children’s Aid Society of Hamilton, 2017 CFSRB 30 and DDS v. Children’s Aid Society for the Districts of Nipissing and Parry Sound, 2016 CFSRB 17.

The Applicant’s Litigation History at the CFSRB

15In considering whether to declare the Applicant a vexatious litigant, it is necessary to review the Applicant’s entire litigation history at the CFSRB. After doing so, I then review the factors relevant to determining whether an individual is a vexatious litigant and apply them to the conduct of the Applicant before the CFSRB.

The First Three Applications

16The first Application (CA18-0026), filed February 16, 2018, alleged that the Respondent had refused to disclose or close the Applicant’s file, failed to provide reasons for extending its investigation, failed to provide reasons for its child protection concerns and relied on a referral from a bogus source.

17The second Application (CA18-0099), filed May 2, 2018, alleged that the Respondent had failed to provide an appropriate Farsi interpreter in a timely manner.

18The third Application (CA18-0137), filed July 3, 2018, was filed by the Applicant on behalf of her spouse. It alleged that the Respondent refused to have correspondence and other documents translated into Farsi by a certified Farsi translator.

19On March 28, 2018, the Applicant and Respondent participated in mediation (then called “settlement facilitation”) regarding the first Application but did not reach a settlement. The parties agreed to a May 9, 2019 teleconference to prepare for a hearing but the teleconference was cancelled on May 8, 2019 at the request of the Applicant.

20Over the next three months, the CFSRB attempted to reschedule the teleconference for the first Application and schedule pre-hearings for the second and third Applications. These attempts were unsuccessful, primarily due to the Applicant’s unavailability.

21Ultimately, both parties agreed to an August 17, 2018 case management teleconference for all three Applications. The Applicant, however, advised the CFSRB at 4:57 p.m. on August 16, 2018 that she would not be attending the teleconference “due to medical reasons pertaining to a family member”.

22Given the difficulties in scheduling teleconferences or in person events involving the Applicant, the CFSRB decided the most appropriate method to deal with jurisdictional issues raised by the Respondent was through written submissions. The Respondent also requested that the CFSRB declare the Applicant to be a vexatious litigant.

23On September 13, 2019, the day before her submissions were due, the Applicant contacted the CFSRB claiming that she had not received the Respondent’s submissions. Without making a finding about that claim, the CFSRB sent the Applicant a copy of the Respondent’s submissions and extended the deadline for her submissions. The CFSRB later gave the Applicant a further extension: BS v. Brant Family and Children’s Services (s.120 CYFSA), 2018 CFSRB 41. The CFSRB denied the Applicant’s subsequent request for yet another extension: BS v. Brant Family and Children’s Services (s.120 CYFSA), 2018 CFSRB 44.

24On October 15, 2018, the extended deadline for her submissions, the Applicant asked to withdraw the first three Applications. The CFSRB granted the withdrawal request and, as a result, did not decide the jurisdictional issues or whether the Applicant should be declared a vexatious litigant.

The Four December 2018 Applications

25The fourth Application (CA18-0255), filed December 7, 2018, alleged that the Respondent made false claims that one of its employees spoke with the Applicant’s doctor.

26The fifth (CA18-0258) and sixth Applications (CA18-0259), both filed December 11, 2018, alleged that the Respondent made false claims that employees of a local hospital contacted the Respondent with concerns about the Applicant and her son.

27The seventh Application (CA18-0266), filed December 21, 2018, alleged that the Respondent made false claims that a doctor at a local hospital had complained about the Applicant.

28The CFSRB dismissed all four December 2018 Applications pursuant to subsection 120(8)(a) of the Act because they did not contain issues that were separate and distinct from those raised in the child protection proceedings before the Ontario Court of Justice.

The Current Applications

29The eighth application (CA19-000), filed January 8, 2019, alleges that staff of the Respondent visited the Applicant’s home and spoke with her spouse without a Farsi interpreter. It also alleges that the Respondent did not explain the reason for the visit at the time of the visit or when the Applicant later contacted the Respondent.

30The ninth Application (CA19-0036), filed February 7, 2019, alleges that the Respondent made false claims that an employee of a local hospital contacted the Respondent with concerns about the Applicant and her son. The Application also alleges that the Respondent’s counsel made nuisance calls to a local hospital.

31The CFSRB scheduled a February 25, 2019 case management teleconference to deal with procedural and jurisdictional issues raised by the Respondent in its Summary Response. The Applicant did not attend the teleconference. Nor did she communicate with the CFSRB until 11 days later when, in response to a letter from the CFSRB warning her that the Applications might be dismissed as abandoned, she sent an email stating that she wanted to reschedule the teleconference. The Applicant, however, did not respond to the CFSRB’s multiple requests for dates on which she would be available for a rescheduled case management teleconference.

32The CFSRB then scheduled a teleconference for April 15, 2019 and advised the Applicant that if she did not attend, the Applications could be dismissed as abandoned or as an abuse of process. The Applicant’s comments during the teleconference raised concerns, as described more fully below.

The April 15, 2019 Teleconference

33During the teleconference, the Applicant said that the Respondent abused children and misused funding. She accused the Respondent’s counsel of acting improperly and criticized the Respondent for spending money on outside counsel to represent it in responding to an application she had filed at the Human Rights Tribunal of Ontario (“HRTO”).

34The Applicant stated that if the Respondent did not enter into a financial settlement of the current Applications and the HRTO Application she could file 20 more applications with the CFSRB.

35The parties agreed to participate in an in-person mediation to try to resolve the current Applications.

April 16 to June 19, 2019

36Following the April 15, 2019 teleconference, the Applicant did not provide any available dates for a mediation despite communication from the CFSRB on April 16, May 9 and 16, 2019.

37Given the ongoing lack of cooperation by the Applicant, the CFSRB issued a May 24, 2019 CMD directing submissions from the parties on whether the Applications should be dismissed as abandoned or as an abuse of process and whether the Applicant should be declared a vexatious litigant.

38The Respondent made submissions as directed.

39The Applicant did not make submissions by June 10, 2019 or at any time to date. Instead, on June 18, 2019 she requested an extension on the basis that a family member was ill. The following day, before the CFSRB had an opportunity to consider and respond to her extension request, the Applicant sought to withdraw the current Applications.

40Having reviewed the Applicant’s litigation history at the CFSRB, I turn now to a review of the factors relevant to deciding whether an applicant is a vexatious litigant and consider their applicability to the Applicant.

The Factors Relevant to Deciding Whether an Applicant is a Vexatious Litigant

41The 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.

42In DP, the CFSRB concluded that it was not necessary for all the factors listed in Lang Michener to be present for an individual to be declared a vexatious litigant. Rather, the CFSRB

must be satisfied on an objective standard that the Applicant has persistently and without reasonable grounds, instituted vexatious proceedings or conducted himself [or herself] in a vexatious manner during the proceedings. (paragraph 31)

Application of the Relevant Factors to the Applicant

43As noted in DP, “[d]eclaring an individual to be a vexatious litigant is an extraordinary step and one that should not be taken lightly” (paragraph 31). Having reviewed the Applicant’s litigation history before the CFSRB, I find that it is appropriate to declare the Applicant a vexatious litigant and to require her to obtain permission from the CFSRB before filing any future applications.

44The Applicant’s actions have caused both the Respondent and the CFSRB to spend considerable time and resources.

45The Act and the CFSRB’s Rules require applications, once found eligible, to move expeditiously to a pre-hearing and, potentially, a hearing. Only one of the nine Applications has proceeded to a pre-hearing, due to the Applicant’s pattern of ignoring correspondence from the CFSRB, failing to provide her available dates, cancelling on short notice or failing to attend scheduled events. The Applicant has also repeatedly missed deadlines set by the CFSRB.

46The Applicant has twice (October 15, 2018 and June 19, 2019) sought to withdraw Applications when a decision on whether there had been an abuse of process and whether she was a vexatious litigant was pending. Both times, the Respondent had already made extensive written submissions.

47As noted in Lang Michener, “a general characteristic of vexatious proceedings that issues raised tend to be rolled forward into subsequent actions”. The Applicant has done so with her allegation that the referral sources on which the Respondent relied were “bogus”. This allegation was part of the first Application and is repeated in the fifth, sixth, seventh and ninth Applications. The fourth Application similarly alleges that the Respondent was untruthful in stating that it had spoken to the Applicant’s doctor.

48There is no credible basis for the Applicant’s allegations that the Respondent has repeatedly lied about medical professionals providing it with information about her mental health. Instead, documents submitted during the CFSRB’s consideration of the nine Applications, including a trespass notice barring the Applicant from a local hospital, contradict these allegations.

49Further, the Applicant’s allegations about false reporting were all before the Court in the child protection proceeding. Despite the CFSRB issuing decisions in December 2018 and January 2019 dismissing four Applications on that basis, the Applicant filed yet another Application in February 2019 making the same allegations.

50Another factor set out in Lang Michener is bringing actions for an improper purpose. The Applicant’s comments during the April 15, 2019 teleconference are evidence that she has filed (and is proposing to file) applications with the CFSRB to pressure the Respondent to make a financial settlement of the HRTO application. Filing nine Applications, many of them repetitive, and threatening to file 20 more amounts to “the harassment and oppression of other parties by multifarious proceedings brought for purposes brought for purposes other than the assertion of legitimate rights” (Lang Michener, para 19).

51The Applicant’s comments that the Respondent abuses children and misuses funds and that its counsel has acted improperly are inconsistent with the obligation of parties to be courteous and respectful during proceedings. These comments breach Rule A7.1 of the SJTO’s Common Rules of Procedure and are vexatious in nature.

52For all of these reasons, I am satisfied that the Applicant has both instituted vexatious proceedings and conducted herself in a vexatious manner during the proceedings. It is therefore appropriate to declare her a vexatious litigant and require her to obtain permission from the CFSRB before filing any future applications.

The Applicant’s Human Rights Application

53During the April 15, 2019 teleconference, the Applicant referred to a human rights application that she has filed against the Respondent (HRTO File 2018-32017-I).

54The Respondent included in its submissions a May 22, 2019 email to the HRTO in which the Applicant requests that the HRTO application be deferred pending the outcome of the CFSRB proceedings on the basis that “a determination of the CFSRB matter may be dispositive of the HRTO [matter]”.

55Although the CFSRB does not have a copy of the HRTO application, it appears from the Applicant’s deferral request that the CFSRB and HRTO applications deal with overlapping subject matter. As a result, I conclude that it is appropriate to vary the CFSRB’s Confidentiality Order to permit the parties to use this decision in any submissions regarding the HRTO application.

order

56The Applicant’s request to withdraw Applications CA19-0008 and CA19-0036 is granted.

57The Applicant is declared a vexatious litigant. She may not file any further applications with the CFSRB without leave of the CFSRB.

58If the Applicant seeks leave of the CFSRB to file an application she must include with the application submissions as to why the application is not intended to vex the respondent and will not result in an abuse of process.

confidentiality order

59Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions or any other documents or information provided or used in these Applications with anyone, including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.

60The Confidentiality Order in paragraph 59 is varied to permit the parties to use this decision in making submissions related to HRTO File 2018-32017-I.