CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
RK
Applicant
-and-
Simcoe Muskoka Child, Youth and Family Services
Respondent
DECISION
Adjudicator: Catherine Bickley
Indexed As: RK v Simcoe Muskoka Child, Youth and Family Services (CYFSA s.120)
WRITTEN SUBMISSIONS
RK, Applicant
BK, Representative
Simcoe Muskoka Child, Youth and Family Services, Respondent
Karen O’Keefe, Counsel
Introduction
1This is an Application filed with the Child and Family Services Review Board (“CFSRB”) under section 120 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”).
2This decision explains why the CFSRB is dismissing the Application.
the law
3The relevant provisions of the Act are:
Section15(2) Service providers shall ensure that children and young persons and their parents have an opportunity to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving;
Section 120(4) The following matters may be reviewed by the Board under this section: (…)
Allegations that the society has failed to comply with section 15(2).
Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
Section 120(7):
After reviewing the complaint, the Board may,
(d) order the society to provide written reasons for a decision to a complainant;
(e) dismiss the complaint; or
(f) make such other order as may be prescribed.
4Rule A8.1 of the Social Justice Tribunals Ontario Common Rules states:
The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
background
5The Applicant is the father of two children who live with their mother. The Respondent has been periodically involved with the Applicant’s family since 2007. The most recent involvement started in August 2013. The Respondent initially provided services from its Orillia office. In 2019, it transferred the file to its Barrie office.
6On July 31, 2019 the Applicant filed Application CA19-0164 (“the First Application”). In September 2019, the Applicant supplemented the First Application with 53 typed pages, including excerpts from court documents, and numerous emails between himself and various Respondent staff.
7The Applicant and Respondent disclosed and filed further material before a full day in-person hearing of the First Application (“the Hearing”). After both parties made written closing submissions, the Applicant provided further submissions which, although they had not been requested, I considered in reaching my decision.
8I found the Respondent had satisfied some, but not all, of its obligations under sections 120(4)4 and 120(4)5 of the Act. All but one allegation was dismissed: RK v. Simcoe Muskoka Child and Family Services, 2020 CFSRB 49 (“the Decision”).
9The Applicant filed Application CA20-0007 (“the Second Application”) after the Hearing but before the Decision was released.
10Attached to the Second Application is a document titled “Schedule A to [TS]”. This document contains 26 requests for information or documents from TS, who was a senior manager with the Respondent until his January 2019 retirement. Also submitted in support of the Application is email correspondence between the Applicant and various Respondent staff as well as a January 28, 2018 affidavit sworn by the Applicant. This affidavit and the email correspondence were also filed with the First Application or disclosed and relied on at the Hearing.
the parties’ submissions
11Following a teleconference to discuss whether the Second Application was eligible for review, the CFSRB issued a Case Management Direction requiring the parties to make written submissions addressing the following questions:
In what way, if any, is Application CA20-0007 different from Application CA19-0164?
If Application CA20-0007 is substantially the same as CA19-0164, would a CFSRB review of CA20-0007 be an abuse of process?
12The Applicant’s submissions do not address either question. Instead, his submissions consist of a list of new questions for TS and questions for AJL (another manager) and JMM (a Respondent employee who had some involvement with the Applicant’s family’s file when it was at the Orillia office). The Applicant did not seek consent from the Respondent or permission from the CFSRB to amend the Second Application by adding new allegations. Nonetheless, I have considered those new allegations in the interests of avoiding the necessity for the Applicant to file a new Application.
13The Respondent’s submissions address only the first question. It submits that most questions on Schedule A are either covered by or were dealt with in the First Application. The Respondent also submits that confidentiality prevents it from answering some questions about one of the Applicant’s children without the consent of the youth and the custodial parent.
analysis
The Second Application is substantially the same as the First Application.
14In the Second Application, the Applicant relies on the same emails and the same affidavit as in the First Application. Indeed, when submitting documents for the Second Application, the Applicant’s representative stated:
I will forward the emails from the previous action as they would be the exact same as what I would have attached [emphasis added].
15As noted above, these emails were entered as exhibits and relied on by the Applicant at the Hearing. The Applicant’s affidavit was also entered as an exhibit during the Hearing.
16The Second Application repeats questions that were raised, considered and answered at the Hearing. For example, the Second Application directs four questions at TS regarding the alleged sexual assault of the Applicant’s son. In the Decision, the Respondent was ordered to:
… send the Applicant a letter explaining why it did not promptly inform the Applicant of the alleged sexual assault of his son and what factors it considered in concluding the allegation was not verified.
17In both the First and Second Application, the Applicant raises his unhappiness with how his family’s file was managed. He feels that he was treated unfairly in comparison to his children’s mother. He is disappointed that TS and AJL did not intervene. He complains that AJL and TS “should have” done something to remedy what he sees as biased, incompetent or unfair behaviour on the part of Respondent staff who they supervised. These concerns were presented and considered at the Hearing. The Decision notes, at paragraphs 51 and 52:
The Applicant bombarded the Respondent with frequent, lengthy emails which he cc’d to the workers’ manager (AJL) and a senior manager (TS). Even in emails to his ex-spouse he cc’d not only DP [a child protection worker] but also AJL and TS. He complained in his testimony that the senior manager never emailed him.
He was upset when the manager and senior manager did not respond to his emails to the workers. At the hearing, he was also upset that these individuals were not called as witnesses by the Respondent.
18The only interactions between the Applicant and AJL and TS was the Applicant copying them on emails he sent to other Respondent staff. The concerns he has about AJL and TS cover the same time period as the concerns in the First Application. Both the First Application and the Second Application deal with the Applicant’s interactions with the Respondent over the same time period. The lack of material difference between the two applications is further demonstrated by the Applicant’s representative’s statement that she was relying on “the exact same” emails in both Applications
19The Applicant’s concerns about JMM surround the transfer of his family’s file from the Orillia to the Barrie office. At the Hearing, issues related to the file transfer were raised and considered. The issue was listed in the Pre-Hearing Report as: “[t]he Respondent’s acknowledgement of errors made at the time the child protection file was transferred to the current office.” The May Decision noted:
The Applicant did not provide sufficient information about this issue to understand what errors he is referring to. Nor is there any evidence before me that the Respondent has acknowledged errors regarding the transfer of the file between offices. As a result, I am unable to make any finding as to whether the Applicant’s concerns on this issue were heard.
20Further, in both the First and Second Application, the Applicant seeks an apology from the Respondent. As noted in the Decision (at paragraphs 16 to 19), the Applicant has received an apology from the Respondent but is not satisfied with the format of the apology. The CFSRB’s remedial authority is limited to the options set out in 120(7) of the Act. As a result, the CFSRB has no ability to order an apology let alone an apology in a particular format.
21The fact the Applicant wants to ask questions of a particular person (TS) who formerly worked for the Respondent does not make the Second Application different from the first. Even if this Application were to proceed to a hearing, there is no certainty that TS would be available as a witness. He no longer works for the Respondent. Neither the Applicant nor the Respondent can compel TS to testify as summonses are not available for section 119/120 hearings (see sections 119(9) and 120(6) of the Act). Nor is there any certainty that the Respondent would call AJL or JMM as witnesses at a new hearing.
22For all of these reasons, I find that there are no material differences between the concerns raised by the Applicant in the Second Application and in the First Application. These concerns are substantially the same, cover the same time period and involve the same documents. I conclude the Second Application is substantially the same as the First Application.
It would be an abuse of process for the CFSRB to review the Second Application
23Although directed to do so, neither party made submissions on whether a review of the Second Application would be an abuse of process. Given Rule A8.1 of the Social Justice Tribunals Ontario Common Rules and the CFSRB’s inherent jurisdiction to control its process, it is my view that it is nonetheless appropriate to determine this question.
24The 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.
25The inclusion in an application of allegations that have been previously litigated does not automatically constitute an abuse of process: DP v. Children’s Aid Society of Hamilton (CFSA s. 68), 2017 CFSRB 30 (“DP”). Re-litigation amounts to an abuse of process where it would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice: CUPE, above, at paragraphs 37 and 52 to 55.
26Complaints against a children’s aid society under sections 119 and 120 of the Act are complaints against an organization rather than against individuals. The obligation to respond to a CFSRB Application lies with the organization rather than any individual staff member. While a complaint may arise from an applicant’s belief that an individual staff has acted improperly or not done what he feels the individual should have done, the question before the CFSRB is whether the organization has fulfilled its obligations under the Act. Although the Applicant has presented his issues as questions directed at specific Respondent staff, the issues involved are repetitive of those raised in the First Application. These issues were considered and decided in the Decision.
27Further, with respect to the questions directed by the Applicant at JMM, no findings about the file transfer issue were made at the Hearing due to the failure of the Applicant to present sufficient information about the issue. It was the Applicant’s responsibility to provide evidence and argument on this issue. Given his failure to do so, it would be an abuse of process to give the Applicant “another kick at the can” by allowing him to relitigate this issue.
28Permitting the Second Application to proceed to a hearing would be contrary to the principle of judicial economy. It would not be a responsible use of the CFSRB’s resources or those of the parties to hold a hearing about concerns and issues that have already been decided.
29It would be manifestly unfair to the Respondent to require it to respond again to allegations that have already been fully litigated. This is particularly so given that the Respondent established at the Hearing that it had fulfilled almost all its obligations to the Applicant under section 120(4) of the Act.
30The Respondent is entitled to rely on the finality of the Decision. If the Applicant felt the Decision was flawed, his recourse was to initiate a judicial review rather than to file a new application based on the same events, concerns and evidence. To hold a second hearing about issues that have already been considered and decided would also risk inconsistent decisions.
31For these reasons, I conclude that it would be an abuse of process for the Second Application to proceed to a hearing.
CONCLUSION
32For the reasons set out above, I conclude that the Second Application is substantially the same as the First Application and that it would be an abuse of process for the Second Application to proceed to a hearing.
order
33The Application is dismissed.
confidentiality order
34Pursuant 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.
Dated at Toronto, February 24, 2021.
Catherine Bickley
Catherine Bickley
Vice-Chair