JS v. Family and Children’s Services of Renfrew County, 2022 CFSRB 57

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JS Applicant

-and-

Family and Children’s Services of Renfrew County Respondent

DECISION

Adjudicator: Daniel McSweeney Date: November 29, 2022 Citation: 2022 CFSRB 57 Indexed As: JS v Family and Children’s Services of Renfrew County (CYFSA s.120)

WRITTEN SUBMISSIONS

Family and Children’s Services of Renfrew County, Respondent

Anaïs Lussier-Labelle, Counsel

INTRODUCTION AND BACKGROUND

1This is an Application (Complaint) 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”).

2The CFSRB found the Application eligible to proceed under sections 120(4)4 and 120(4)5 of the Act.

3The Applicant is the mother of two sons (the “Children”).

4The Applicant identified the following Issues/Concerns in her Complaint:

1. The Applicant alleges that the Children were taken from her care under false circumstances and based on lies; and
2. The Applicant alleges that her concerns for the safety and health of one of the Children while in the care of her mother were not heard by Respondent staff.

5This is the third Application by this Applicant this year. She had previously submitted an Application in January of 2022 (CA22-0009) which included the following Issues/Concerns:

1. The Applicant alleged that she was not heard by Respondent staff when she expressed her opinion that the Children should be returned to her after the incident of February 24, 2021;
2. The Applicant alleged that her concerns regarding access to her youngest child (TL) were not heard by Respondent staff; and
3. The Applicant alleged that the Respondent has not heard her when she attempted to provide evidence to them regarding her concerns regarding the health, safety and welfare of the Children while outside her care.

6I dismissed the first Application in its entirety given that all the Issues/Concerns were found to be issues that were before the Court or had been before the Court. As such, the CFSRB was excluded from reviewing them pursuant to s. 120(8) of the Act.

7The Applicant submitted a second Application on May 3, 2022 (CA22-0052) which included the following Issues/Concerns:

1. The Applicant alleged that Respondent staff removed one of the Children in February of 2021 without an adequate reason;
2. The Applicant alleged that Respondent staff ignored evidence she presented of harassment by one of her ex-partners;
3. The Applicant alleged that Respondent staff have refused her regular access to the Children through in-person visits and phone and video calls;
4. The Applicant alleged that she has been treated unfairly and harshly judged by Respondent staff;
5. The Applicant alleged that Respondent staff have failed to return her calls; and
6. The Applicant alleged that Respondent staff have failed to provide updates on the Children.

8I dismissed this second Application in its entirety as I found that Issues/Concerns 1 – 5 were issues that had been or were currently before the Court. In addition, I found that Issues/Concerns 1 – 5 were substantively the same as those decided in my decision on File CA22-0009 and that proceeding with Issues 1-5 would amount to duplication and an abuse of process for several reasons. One, relitigating the same issue in the same forum would have resulted in unnecessary costs to the CFSRB and the Respondent. Two, placing the CFSRB in a position where it may have made findings which conflicted with a previous CFSRB decision on the same matter might have resulted in undermining the credibility of the CFSRB as a tribunal. Three, the parties were entitled to finality in judicial decision-making.

9In coming to this decision, I relied on the direction of Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CUPE), (cited above), on the impact of an abuse of process on the integrity of the adjudicative process. In addition, I considered the direction of Worker’s Compensation Board v. Figliola 2011 SCC 52 in relation to fairness and finality in decision-making.

10With respect to Issue/Concern 6 (not providing updates regarding the Children), I found that I was provided with evidence of Respondent staff attempts to communicate with the Applicant regarding the Children. I found that the Respondent made adequate efforts to provide the Applicant with written updates on the health, development, and well-being of the Children. I therefore dismissed Issue/Concern 6.

11In its Summary Response to the current Application, the Respondent argued that Respondent staff did not fail to provide the Applicant an opportunity to be heard. In addition, the Respondent argued that the CFSRB did not have jurisdiction to review the Application as its contents fell squarely within the confines of section 120(8) of the Act as it dealt with issues that were decided by the Court or are currently before the Court.

THE LAW

12Section 120(8) of the Act states that the:

The Board 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

13The CFSRB Rules of Procedure provides the CFSRB with the ability to hold hearings orally, in writing, or electronically by teleconference or video-conference. Subsection 8.1 of the Rules state:

In deciding the format of a hearing, the CFSRB will consider:

a) whether it is a fair and accessible process for the parties; b) the costs and efficiency of the process; c) the potential for a more expeditious resolution; d) the convenience of the parties; e) the consistency with the CFSRB’s mandate; f) whether the facts or evidence may be agreed upon; g) the estimated duration of the hearing; h) whether the issues for hearing are predominantly legal issues; i) whether oral testimony is likely to be needed; j) any objections to the format of the hearing.

14Section 50 of O.Reg 155/18 under the Child and Family Services Act, R.S.O. 2017, provides the CFSRB with authority to take steps to prevent an abuse of process. 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.

15Rule A8.1 in the CFSRB Rules of Procedure provides the CFSRB authority to address issues of an abuse of process.

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

16The 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.

In determining whether legal proceedings ought to be dismissed as an abuse of process, the question is whether the proceedings would be “oppressive” or “vexatious" or “unfair to the point that they are contrary to the interest of justice".

12The CFSRB concluded in DP v. Children’s Aid Society of Hamilton (CFSA s. 68), 2017 CFSRB 30 (DP), a decision maker ought not to conclude that the inclusion in an application of allegations that have been previously litigated automatically constitutes an abuse of process. Rather, the decision must engage in a contextual analysis that takes into account all of the relevant factors and balances the interests of the parties in order to arrive at a just outcome overall.

13CUPE establishes that the abuse of process doctrine precludes re-litigation that would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice, while recognizing that fairness may dictate that re-litigation be permitted in certain circumstances: See CUPE, above, at paras. 37 and 52-55.

ANALYSIS

17I considered whether I had enough information before me to decide this Application without additional evidence. As outlined below, I find that the 2 Issues/Concerns in the Application were issues that were included in the Applicant’s previous Applications. As such, I found that the most expeditious, fair, and efficient approach was to review the Application in writing based on the Application and the Summary Response.

18I considered Issue/Concern 1: the Applicant’s allegations that the Children were taken from her care under false circumstances and based on lies. I addressed this Issue/Concern in my decision regarding CA22-0052. I found that this issue had been placed squarely before the Court and therefore the CFSRB did not have jurisdiction to review this concern. I therefore dismiss Issue/Concern 1 as it has already been dealt with by the Courts and in my previous decision.

19I considered Issue/Concern 2: the Applicant’s concerns regarding the care and safety of one of the Children while in the care of his maternal grandmother. I addressed this concern in my decision related to file CA22-0009 in which the Applicant alleged that Respondent staff did not hear her concerns regarding the health, safety, and welfare of the Children while outside her care. This issue was before the Court in the August 30, 2021, proceedings. I also note that the issue of the health, safety, and best interests of the Children were issues that were decided on in the Temporary and Final Orders issued by the Court.

20Furthermore, the Respondent has provided evidence in the form of a CPIN Case Note dated January 18, 2022, in which the Applicant expressed her concerns that one of the Children was placed in the care of her mother who she alleged had a drinking problem. The Child Protection Worker heard the concerns and she explained to the Applicant that the police had conducted unannounced wellness checks and did not find that her mother was intoxicated in a caregiving role. In addition, other relatives confirmed that the Applicant’s mother did not have a drinking problem. The Worker explained why the Respondent would not perform drug tests on the Applicant’s mother.

21This Case Note confirms that the Applicant’s particular concerns regarding her mother were heard and recorded by Respondent staff. In this case, the Applicant disagrees with the Respondent’s findings regarding no concerns with the Applicant’s mother in a caregiving role; however, this does not mean that the Applicant’s concerns were not heard.

22Based on the evidence before me as well as the evidence which grounded my previous decision in relation to CA22-0009, I find that this Issue/Concern has been before the Court. Even if the Issue/Concern had not been before the Court, the Case Note confirms that staff considered the Applicant’s concern regarding her mother’s drinking and, based on information gathered, found that this was not a concern.

23For these reasons, I dismiss Issue/Concern 2.

Abuse of Process

24Despite my having made findings on the 2 Issues/Concerns in the current Application, I considered the issues of abuse of process.

25Neither party made direct submissions on whether a review of this third Application was an abuse of process. Given Rule A8.1 of the CFSRB’s Rules of Procedure and the CFSRB’s inherent jurisdiction to control its process, it is my view that it is nonetheless appropriate to determine this question.

26I note that in relation to CA22-0052 I found that the Applicant had submitted substantially similar Applications which amounted to an abuse of process (see rationale above). This current Application is no different. Both the Applicant’s Issues/Concerns were included and decided in previous decisions. The Applicant’s concerns regarding her mother were addressed in my decision related to CA22-0009. The Applicant’s concerns regarding the Children’s apprehension were addressed in my decision of CA22-0052. In addition, I found that almost all the Applicant’s allegations in the 3 Applications this year have been issues that have been before Court and have been decided by the Court.

27The Applicant’s track record of raising issues that have been previously decided (dismissed) by the CFSRB is an abuse of process. The Respondent and the CFSRB is entitled to finality in decision-making. I find that relitigating the same issues in the same forum would result in unnecessary costs to the CFSRB and the Respondent. In addition, placing the CFSRB in a position where it may make findings which conflict with a previous CFSRB decision on the same matter will result in undermining the credibility of the CFSRB as a tribunal.

28Should the Applicant continue to submit Applications which address the same Issues/Concerns, the CFSRB may consider other options available to it, including requesting submissions on whether the Applicant should be found to be a vexatious litigant.

29Rule A8.2 of the CFSRB Rules of Procedure reads as follows:

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.

DECISION

30For the reasons identified above, the Applicant’s issues have been dismissed in their entirety. In addition, I have found that the Applicant has abused the Complaint Process as all the issues in the current Application have been addressed in my past 2 decisions.

CONFIDENTIALITY ORDER

31Pursuant 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.