BKB v. Family & Children’s Services of the Waterloo Region, 2019 CFSRB 80

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

BKB

Applicant

-and-

Family & Children’s Services of the Waterloo Region

Respondent

DECISION

Adjudicator: Catherine Bickley Date: November 21, 2019 Citation: 2019 CFSRB 80 Indexed As: BKB v Family & Children’s Services of the Waterloo Region (CYFSA s.120)

APPEARANCES

BKB, Applicant Self-represented

Family & Children’s Services of the Waterloo Region, Respondent Kim Putnam, Counsel

background

1On May 7, 2019, the Applicant filed this Application with the Child and Family Services Review Board (“CFSRB”) under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”), raising the following issues:

• Allegations that the Respondent has not provided reasons to the Applicant for the time it has taken to provide file disclosure;
• Allegations that the Respondent has not provided reasons to the Applicant for why a client disclosure request is treated differently than a disclosure request from a lawyer;
• Allegations that the Respondent did not immediately inform the Applicant that a client disclosure request is treated differently than a disclosure request from a lawyer; and,
• Allegations that the Respondent has not given reasons to the Applicant for redactions in the file disclosed to the Applicant’s counsel.

2At a June 28, 2019 Pre-Hearing/Mediation, the parties entered into a Settlement Agreement.

3The Applicant subsequently alleged that the Respondent had not complied with the Settlement Agreement. The Respondent filed a written response on October 1, 2019. A Compliance Hearing was held on October 10, 2019.

4My task is to decide whether the Respondent complied with the Settlement Agreement. Concerns outside the Settlement Agreement cannot be dealt with as part of the non-compliance process.

5I have reviewed the June 28, 2019 Settlement Agreement, considered the oral submissions made by the parties at the Compliance Hearing, and reviewed the following materials filed by the parties:

• July 26, 2019 letter (and attachments) from the Respondent to the Applicant;
• August 8, 2019 email from the Applicant to the CFSRB and the Respondent
• October 1, 2019 letter (and attachments) from the Respondent to the CFSRB (copied to the Applicant);
• A package of emails provided by the Respondent to the Applicant and submitted to the CFSRB on consent on October 29, 2019; and,
• The Applicant’s cover letter accompanying the October 29, 2019 package of emails.

6For the reasons that follow, I conclude that the Respondent has complied with the terms of the Settlement Agreement.

analysis

7The Applicant alleges the Respondent has not complied with paragraph 4 of the Settlement Agreement which states:

On or before August 1, 2019 the Society will provide the Applicant with a letter explaining

a. The time it has taken to provide file disclosure; b. Why a client request for disclosure is treated differently than a request from a lawyer; and, c. If the Applicant was not informed of this difference immediately, why not.

8The Respondent sent the Applicant a letter dated July 26, 2019 addressing these three questions. On August 8, 2019 the Applicant wrote to the Respondent and the CFSRB alleging non-compliance. She complained that the information provided was “not clear or correct”. She also stated that three emails referenced in the July 26, 2019 letter had never been sent to her.

9In response to the allegation of non-compliance, the Respondent wrote to the CFSRB (with a copy to the Applicant) on October 1, 2019. That letter included copies of the three emails (January 2, January 8 and March 19, 2019) the Applicant claimed she had not received.

10During the Compliance Hearing, the Applicant reiterated her complaint that she was not immediately told that there were different timelines and levels of redaction when file disclosure requests come from clients than when such requests come from counsel. In her view, the Respondent’s practice of treating disclosure requests differently depending on who is making the request is not supported by the Act or by the Ministry’s Guidelines. She also complained that it took 12 months, the involvement of the CFSRB and a court order before she received adequate file disclosure and that the Respondent’s staff had acted unprofessionally.

11The Respondent’s July 26, 2019 letter explained that “[c]lient requests are heavily redacted (information is removed) to ensure it only contains information related to the specific client for privacy/confidentiality purposes”. In contrast, disclosure to counsel contains more information but “[t]he use of the disclosure is limited by an undertaking the lawyer signs to ensure the information is confidential, not given directly to clients, and only used in the court proceeding”.

12The July 26, 2019 letter acknowledged that the Applicant was not immediately told the difference in how counsel and client disclosure requests are treated. It noted that the two staff members involved went on vacation the day after the Applicant’s request was received and that she was told slightly over a month later that counsel requests take priority over client requests. The letter also acknowledged that 12 months was a long time to wait for disclosure.

13The Respondent reiterated during the Compliance Hearing that its current practice is to treat disclosure requests from counsel differently than requests from clients. The Respondent stated that there is currently no standard legislative regime governing disclosure but noted that this will change when Part 10 of the Act comes into effect in January 2020.

14The Respondent also explained that a backlog in the records department and a spike in court ordered disclosure requests contributed to the delay in providing disclosure to the Applicant.

15The Applicant’s concerns are about the substance of what happened in her interactions with the Respondent in seeking file disclosure and the practices of the Respondent related to file disclosure. The only issue before me, however, is whether the Respondent complied with the Settlement Agreement.

16The Settlement Agreement did not require the Respondent to change its disclosure practices. Nor did it require the Respondent to agree with the Applicant’s views that these practices are improper. It simply required the Respondent to explain on or before August 1, 2019 why disclosure took so long, why client disclosure requests are treated differently than those from counsel and why this difference was not immediately explained to the Applicant.

17The Respondent wrote to the Applicant before the August 1, 2019 deadline. It gave a clear and detailed explanation of its disclosure practices. It acknowledged and explained the delay in telling the Applicant about its differential disclosure practices for client and counsel requests. It acknowledged and explained the delay in ultimately providing disclosure to the Applicant.

DECISION

18For the reasons set out above, I find that the Respondent has complied with the terms of the June 28, 2019 Settlement Agreement. Accordingly, the CFSRB file will be closed.

confidentiality order

19Pursuant 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 Application 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.