LA v. Hamilton Children’s Aid Society, 2019 CFSRB 42

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LA

Applicant

-and-

HAMILTON CHILDREN’S AID SOCIETY

Respondent

INTERIM DECISION

Adjudicator: Judy Finlay and Brenda Bowlby

Date: August 14, 2019

Citation: 2019 CFSRB 42

Indexed As: LA v. Hamilton Children’s Aid Society (CYFSA s. 120)

APPEARANCES

LA, Applicant

Self-represented

Hamilton Children’s Aid Society, Respondent

James Wood, Counsel

Introduction

1This is an Application filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1 (the “Act”).

2This Interim Decision deals with two issues: (a) the Applicant’s complaint that one of the two panel members has a “conflict of interest”; and (b) the Applicant’s position that he has a right to record the hearing of his Application.

3The Application was filed November 8, 2018 and the hearing commenced on June 14, 2019.

4At the hearing the Applicant insisted on recording the hearing. He was permitted to explain why he should be able to record the hearing. The hearing was subsequently terminated after the Applicant was directed to stop recording the hearing, refused to do so and began to make statements that were inappropriate and disrespectful of the CFSRB.

5By Case Management Direction (“CMD”) dated June 25, 2019, he was given a warning about abuse of process and his obligations under the CFSRB’s Rules and was told he would be given one further chance. The CMD included the following directions:

Since we were unable to complete the hearing of the Applicant’s argument on why he should be permitted to record the hearing, he will be given an opportunity to make written submissions on the issue. The Respondent will be given an opportunity to respond to these submissions.

The Applicant shall make written submissions on why, contrary to the CFSRB’s normal practice, he should be permitted to record the hearing of his Application. These submissions must set out all reasons why he feels he needs to record the hearing and must also set out all uses that he will make of the recording, including whether he may make the recording public.

6Subsequent to the hearing, the Applicant made a complaint to the Social Justice Tribunals of Ontario (now part of Tribunals Ontario) that one of the panel members had a conflict of interest. This complaint was referred to the panel to determine, as is the normal process as it is an adjudicative decision as to whether an adjudicator is biased.

BACKGROUND

7The factual findings set out in the CMD concerning the manner in which the hearing on June 14th unfolded included the following, starting at paragraph 3:

Upon his arrival, the Applicant immediately set up a laptop and attached a cell phone to the computer which he put in front of him. The panel asked the Applicant if he intended to record the hearing and he said it was his right to do so.

Hearings and pre-hearings before the Child and Family Services Review Board (“CFSRB”) are confidential. In order to protect the confidentiality of its proceedings, the CFSRB’s normal practice is to prohibit recording of the hearing because of the sensitive personal information dealt with during these hearings. This involves not only the personal information of an applicant but also of the applicant’s child or children and, as in this case, the other parent.

In order to attempt to deal with the issue in an orderly manner, the CFSRB introduced the two members of the panel, as is the normal process at the outset of a hearing, and advised the Applicant that because the hearing was confidential, it did not permit the hearing to be recorded.

When the panel members attempted to address the Applicant about recording the hearing, the Applicant interrupted to assert his right to record and he began to argue. The members advised the Applicant that his argument regarding recording would be heard. To try to deal with the issue as efficiently as possible, they did not insist that the Applicant turn off the recording device at that point because he had made clear that he would not do so. Further, hearing his argument on this issue would not include dealing with personal information. Accordingly, the hearing started with the applicant recording but without any permission having been granted.

As he was starting his argument on the issue of recording the hearing, the Applicant turned to the Respondent’s side of the table and began to question the Respondent’s representative about who she was. He was redirected by the panel to make his argument on recording the hearing.

The panel heard the Applicant’s argument which started with a reference to the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). Specifically he read out s.136(2)(b) which provides that a party may “unobtrusively [make] an audio recording at a court hearing, in the manner that has been approved by the judge, for the sole purpose of supplementing or replacing handwritten notes”.

It was clear from the Applicant’s argument that he was aware that the CFSRB’s normal procedures did not permit parties to record the hearing – he argued that the CFSRB’s policies and procedures bound the employees of the CFSRB but not the parties.

The panel heard the balance of the Applicant’s argument and the brief response from the Respondent, then asked the parties to step outside while the panel deliberated. The Applicant was instructed to take his recording equipment with him.

The panel decided that before making a final decision, it would be appropriate to ask some further questions of the Applicant to determine whether there were any additional factors that might support his request and to obtain further information regarding how he intended to use the recording. The parties were invited back into the hearing room.

When the Applicant arrived back in the hearing room he again began to set up his computer and phone. The panel instructed him not to do so and pointed out that the main authority on which he relied in support of his argument, s. 136(2) of the CJA, provides that a party must first have approval of the judge before the party can record a hearing, which the Applicant did not yet have.

The panel asked the Applicant whether he would stop recording and he indicated that he would and unplugged his phone from his computer. He was then asked by the panel if his phone was recording at which point he said that it was. He made clear that despite the CFSRB’s direction, and his own initial agreement not to do so upon re-entering the room, that he would continue recording.

The Applicant then spoke directly to one of the panel members, telling her that he had her Law Society number and that he would be reporting her to the Law Society and to the Arbitrators and Adjudicators’ Society. The Applicant was asked if he was threatening the member and he responded that he was just giving a warning.

At this point the panel advised the parties that the hearing was at an end and that the parties would be hearing from the CFSRB.

The Applicant stood up and said words to the effect that:

he would make this matter public, so that others could see how incompetent the CFSRB was;

that he would be contacting “Brian Mulroney” about one of the members and that she would lose her job as an adjudicator because she was incompetent; and

that “this” was a human rights violation that took us right back to the 40s.

The foregoing was stated in a loud and forceful way.

“CONFLICT OF INTEREST”

Allegations

8The Applicant has made allegations that the panel, and in particular one of the panel members, has a “conflict of interest”. Having regard to the allegations made, it is assumed that the Applicant intends to raise an objection of reasonable apprehension of bias, not conflict of interest.

9The Applicant’s allegations are set out for the most part in a document which purports to be a “letter" dated June 25, 2019 from the individual who attended with the Applicant at the hearing. This letter is unsigned. These allegations can be summarized as follows:

• one of the panel members refused to allow the Applicant to set up his computer, stating she was starting the hearing
• this panel members refused to identify a woman who attended with the respondent’s counsel when the Applicant asked who she was.
• this panel member would ask a question of the Applicant and when he commenced answering she would interrupt and not allow him to answer; at the same time she demanded that no one speak when she was speaking or interrupt her. She raised her voice unnecessarily repeatedly.
• whenever the Applicant spoke about or referred to the Rule of Law, this panel members threatened to end the hearing.
• contrary to the CMD issued by the CFSRB, the Applicant did not say he was going to contact “Brian Mulroney” - he said he would be carbon copying AG Carolyn Mulroney. Nor did he refer to the 1940s.
• In addition, a number of subjective descriptors were included in both the letter and two emails from the Applicant in which he referred to the panel member as both dishonest and discriminatory, and asserted that she “wilfully lied and fabricated events in the [CMD]”.

Decision on “Conflict of Interest”

10The CFSRB rejects the allegations made by the Applicant that the panel member “lied or fabricated events in the [CMD]”. The findings set out in the CMD were the joint findings of both members of the panel and reflect the events that unfolded at the hearing on June 14, 2019.

11It follows that the CFSRB rejects the allegations made by or on behalf of the Applicant that conflict with the findings set out in that CMD.

12With respect to the remaining allegations not specifically dealt with in the CMD, we find as follows:

• The Applicant was permitted to make his argument and to answer questions.
• The Applicant was only “spoken over” when he refused to accept direction from the panel and continued to talk and when he began to make comments that were inappropriate, including comments cited in the CMD. During this latter occasion, when the panel terminated the hearing, a raised voice was used by the panel in order be heard over the Applicant who was continuing to speak in a loud and forceful manner contrary to the direction of the panel.
• At no point did the panel threaten to end the hearing if the Applicant spoke about or referred to the Rule of Law.

13The CFSRB has applied the following test for reasonable apprehension of bias set out Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC) at p. 394:

[W]hat would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

(See also Appellant v. Respondent School Board (Education Act s.311.7), 2016 CFSRB 14; DK v Children and Family Services for York Region (s.120 CYFSA), 2018 CFSRB 290)

14First, it must be noted that while the Applicant has focused on just one of the members of the panel, the panel in this case consists of two members. The CMD represents their joint decision and was signed by both members. That is, it is not the decision of just one of the panel members. Moreover, both panel members were in accord on the manner in which efforts were made to deal with an Applicant who was not prepared to recognize the authority of the CFSRB to control its processes.

15An informed person, viewing the manner in which the hearing unfolded, including the conduct of the Applicant, would conclude that it is more likely than not that the panel would decide this case fairly: despite the conduct of the Applicant throughout the hearing, he was given an opportunity to be heard regarding his position that he had a right to record the hearing. In fact, following the hearing, which was adjourned precipitously because of the Applicant’s conduct, he was given further opportunity to make his argument on recording the hearing. Because the panel had decided to put certain questions to the Applicant and was unable to do so, the Applicant was invited in the CMD to provide submissions on the issue. This included an opportunity to address the panel’s question as to whether he had advised the panel of all of the reasons why he wanted to record the hearing.

16Further, despite the Applicant’s conduct, he was given a further chance to proceed with his case subject to a warning that further abusive conduct would not be tolerated.

17We therefore dismiss the Applicant’s objection that the panel, or either member of the panel, had a “conflict of interest” or that a reasonable apprehension of bias arose.

RECORDING THE HEARING

18It is the Applicant’s position that he has an absolute right to record the hearing of his Application. He provided his argument for this assertion at the outset of the hearing on June 14th. He was given a further opportunity to make submissions in writing in the CMD.

19The Applicant’s argument can be summarized as follows:

• The Applicant wishes to record the hearing in order to supplement his notes. Apart from asserting that he has a right to record hearings, the Applicant gave no other reason for wanting to record the hearing.
• Section 136 (2)(b) of the Ontario Courts of Justice Act RSO 1990, c. C.43, (“CJA”) permits counsel and parties to record hearings. This section sets out an exception to the rule, set out in s. 136 (1) prohibiting the recording of hearings by electronic means, as follows:

(2) Nothing in subsection (1),

(a) prohibits a person from unobtrusively making handwritten notes or sketches at a court hearing; or

(b) prohibits a lawyer, a party acting in person or a journalist from unobtrusively making an audio recording at a court hearing, in the manner that has been approved by the judge, for the sole purpose of supplementing or replacing handwritten notes.

• The Applicant also points to a now defunct Practice Direction issued by former Ontario Chief Justice Howland Practice Directive in 1989:

…Subject to any order made by the presiding judge, as to non-publication of court proceedings, and to the rights of the presiding judge to give direction from time to time as he or she may see fit as to the manner in which an audio recording may be made at a court hearing pursuant to s. 146 [now s. 136] of the Courts of Justice Act, the unobtrusive use of a recording device from the body of the courtroom by a solicitor, a party acting in person, or a journalist for the sole purpose of supplementing or replacing handwritten notes may be considered as being approved without an oral or written application to the presiding judge.

• The CFSRB falls under the Statutory Powers Procedure Act, RSO 1990 c. S. 22 (“SPPA”) rather than the CJA. Since nothing in the SPPA says that a party cannot record a hearing, the CFSRB must resort back to the CJA, which permits parties to record hearings.
• The fact that the CFSRB may have policies that are binding on the members of the CFSRB does not mean that the Applicant is bound by any such policies.
• There is no reason not to let the Applicant record the hearing.

20The Respondent’s submissions are summarized as follows:

• The CFSRB has the authority to determine how hearings before it are conducted, including if, when and how a party may record a hearing.
• Legislation may permit a judge or Board to decide to allow a participant to record a hearing, but that is a decision within the exclusive jurisdiction of the judge or Board. A participant has no absolute right to record a hearing and the Board may preclude a party from doing so.
• The respondent points to its experience in hearings before the CFSRB in which participants are generally prohibited from recording hearings. It points to an exception being made where the issue being dealt with is extremely serious - for example, an adoption proceeding - and the hearing will take place over a number of days. In this instance, a Court Reporter was used in order to ensure the veracity of the transcript.
• The respondent also points out the rationale which the CFSRB has used for prohibiting recordings, that hearings involve personal and private information about mothers, fathers, their children and other family members.

Decision on Recording

21The Applicant’s request to record the hearing is denied for the following reasons.

22First, contrary to the Applicant’s assertion, no party has an absolute right to record hearings in either courts or tribunals in Ontario.

23Section 136 (2) of the CJA allows a party to record a court proceeding but only with the approval of the judge. The Applicant has pointed to an outdated Practice Direction which makes the use of recording devices in the court room subject to the discretion of the judge. (This Practice Direction has been replaced by the Consolidated Practice Direction, which sets out a shorter though similar direction.) These provisions clearly belie the Applicant’s premise that parties in Ontario court rooms have an absolute right to record hearings - they do not. Judges have the discretion to prohibit parties from recording proceedings.

24In any event, neither the CJA or the Consolidated Practice Direction issued by the Ontario Superior Court of Justice have any application to statutory tribunals in Ontario, which are totally separate regimes. The SPPA also does not apply to applications filed under sections 119 and 120 of the Act (see sections 119(9) and 120(6).

25However, the CFSRB has the ability to control its own processes under the common law, which includes the authority to make orders and give directions. This authority includes the ability to decide whether a party can record a hearing

26Further, as noted in our findings in the CMD set out above, section 50 of O.Reg 155/18 specifically authorizes the CFSRB to make orders and give directions to prevent an abuse of its processes:

In order to provide for the just and expeditious resolution of a proceeding arising from an application requesting a review of a complaint under subsection 119(5) or 120(3) 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.

27It is the longstanding practice of the CFSRB to prohibit recording of its processes unless permission is specifically granted. This practice arises from the fact that hearings and pre-hearings before the CFSRB are confidential. The CFSRB’s rules include the following:

9.1 Due to the nature of the proceedings, hearings and pre-hearings are to be held in private.

9.2 A party or a member of the public may bring a motion to have a hearing held in public.

28In order to protect the confidentiality of its proceedings, the CFSRB’s normal practice is to prohibit the recording of hearings because of the sensitive personal information dealt with during these hearings. This involves not only the personal information of an applicant but also of the applicant’s child or children, the other parent and others who may be involved.

29The CFSRB has made exceptions where parties have requested permission to use court reporters. In M.H. v. CAS of Toronto (CFSA s.68), 2009 CFSRB 41, the CFSRB explained the reason for this as follows:

To avoid issues with respect to completeness and accuracy, the Board would only permit a hearing to be recorded by a certified court reporter and then only on the basis of an Order or undertaking that any transcript ordered would be provided to the other party and to the Board at the expense of the person requesting a transcript of the hearing.

30The CFSRB has also made an exception where a party requested permission to record the proceedings as an accommodation for a disability. (See A.H. v. Kawartha-Haliburton Children’s Aid Society (CFSA s.68), 2014 CFSRB 62)

31The Applicant does not claim to have a disability. He simply asserts his right to record the proceedings and says that the reason is to supplement his notes. This is not sufficient reason to justify overriding the CFSRB’s normal practice.

32The Applicant stated at the hearing that he would make the matter public. Further, he failed to provide a clear and unequivocal answer to the question of whether he might make any recording public.

33Moreover, the Applicant’s refusal to comply with our direction to him at the outset of the hearing to stop recording raises concerns that he would similarly not comply with a direction to keep the recording confidential, even if he was permitted to record the hearing. The Applicant has clearly demonstrated that he will not comply with the directions he is given by the CFSRB, let alone accept the authority of the CFSRB.

SUBMISSIONS REGARDING ABUSE OF PROCESS

34In the CMD, the Applicant was warned that his conduct (outlined above) was contrary to the requirement that all persons participating in proceedings before the CFSRB conduct themselves in a manner that is courteous and respectful of the CFSRB and other participants in the proceeding. Starting at paragraph 18 of the CMD, we found that:

In reviewing how the events unfolded, it appears to us that the Applicant came to the hearing prepared to challenge the CFSRB’s process rather than addressing the needs of his child or the concerns he had with the Respondent. In this regard, we note that the Applicant had been previously advised that the CFSRB’s practice is not to permit hearings or pre-hearings to be recorded because they are confidential during the Pre-Hearing scheduled for February 7, 2019. This Pre-hearing was terminated when he refused to stop recording.

The Common Rules of the Social Justice Tribunals of Ontario provide as follows:

Rule A7: Courtesy and Respect

A7.1 All persons participating in proceedings before or communicating with the tribunal must act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceeding.

Rule A8: Abuse of Process

A8.1 The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

A8.2 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.

Section 50 of Regulation 155/18 permits the CFSRB to dismiss an Application to prevent an abuse of its processes. 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 complaint under subsection 119(5) or 120(3) 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.

We note that throughout, the Applicant acted in a manner that was disrespectful in that he challenged the panel’s authority and he issued threats against the CFSRB and individual members of the CFSRB. This is unacceptable and if the Applicant wishes his Application to move forward, he will have to commit to follow the CFSRB’s rules and directions.

Notwithstanding the Applicant’s entirely inappropriate and disrespectful behaviour on June 14^th, he will be given one further opportunity to proceed with his Application. However, it is important that the Applicant accept our rulings in this case and that the Applicant conduct himself in a manner that is respectful of the CFSRB, its processes, and the other party in the proceeding. The Applicant’s refusal to accept our rulings or to conduct himself in a manner that is respectful of the CFSRB, its processes or the other party will interfere with our ability to deal with this case. In this event, we will request submissions from both parties as to whether the Application should be dismissed for abuse of process.

35In his covering emails and submissions, the Applicant has continued to focus on one of the panel members, accusing her, amongst other things, of being abusive, discriminatory, a bully, a liar, dishonest and of fabricating findings in the CMD.

36This conduct would appear to demonstrate that the Applicant has refused to accept our rulings and/or has conducted himself in a manner that is disrespectful of the CFSRB and its processes which will interfere in our ability to deal with this case.

37In light of the warning set out in the CMD, the parties will be directed to make submissions on whether this Application should be dismissed for abuse of process.

order

38The Applicant’s request that one of the members of the panel be found to have a “conflict of interest” is denied.

39The Applicant’s request to record the hearing is denied.

40The parties are directed to serve on each other and file with the CFRSB submissions on the issue of whether this Application should be dismissed for abuse of process as follows: i) the Applicant will serve and filed his submissions by August 28, 2019; ii) the Respondent will serve and file its submissions by September 11, 2019; and iii) the Applicant will serve and file any reply submissions by September 25, 2019.

confidentiality order

41Pursuant 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 this Choose an item. 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.