CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
SF
Applicant
-and-
Peel Children’s Aid Society
Respondent
DECISION
Adjudicator: Daniel McSweeney
Indexed As: SF v Peel Children’s Aid Society (CYFSA s.120)
WRITTEN SUBMISSIONS
Peel Children’s Aid Society, Respondent
Amanda Rozario, Counsel
INTRODUCTION AND BACKGROUND
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”).
2The CFSRB found the Application eligible to proceed under sections 120(4)4 and 120(4)5 of the Act: The Applicant alleges she was not given the opportunity to be heard and represented when issues affecting her interests were made, or a chance to be heard when she raised concerns about the services she is receiving; and the Applicant alleges that the society did not provide her with reasons for a decision that affected her interests.
3The Applicant is the mother of a son (the “Child”).
4The Applicant identified the following Issues/Concerns in her Application:
The Applicant alleges that the Respondent did not provide her with an explanation as to why her child was removed from her care;
The Applicant alleged that Respondent staff did not try to assist her to regain custody of the Child; and
The Applicant alleges that Respondent staff did not hear her concerns about what is happening to her son.
5Before the CFSRB could determine eligibility, the Respondent wrote to the CFSRB requesting that it take into consideration that the Applicant’s previous Complaint (CA22-0101) was dismissed, and that the current Complaint relates wholly to issues that were already considered and dismissed by the CFSRB. The Respondent provided copies of the previous CFSRB decision and Court documents for review.
6The CFSRB had also dismissed a previous Complaint (CA20-0093) as it found that all the issues included in the Complaint were before the Court which barred the CFSRB from reviewing the Complaint.
7In a Case Management Direction dated March 2, 2023, the Applicant was directed to clarify whether any of the issues in her current Complaint were different from the issues in her two previous Complaints. If the Applicant submitted that the issues were different, she was directed to explain how the issues in the current Complaint were separate and different from the substantive issues decided or currently before the Court.
8The Applicant was also directed to provide written submissions on whether the CFSRB should declare her a vexatious litigant and require her to obtain permission from the CFSRB before filing any new Complaints against the Respondent.
9The Applicant did not provide submissions.
THE LAW
10Section 120(8)(a) of the Act states:
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.
11The Ontario Court of Appeal ruled in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441 that the existence of child protection proceedings does not bar the CFSRB from reviewing complaints about services received from a children’s aid society if the complaints are separate and different from the substantive issues before the court.
12This decision can be accessed at: 2011 ONCA 441 | Children's Aid Society of Waterloo v. D.D. |
13Rule 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.
14The 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".
15The 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.
16CUPE 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 the CFSRB had jurisdiction to review the Applicant’s current Complaint.
18The Applicant’s 2022 Complaint dealt with the following 3 Issues/Concerns:
The Applicant alleges that her concerns regarding the health and safety of the Child (alleged sexual assault; exposure to adult conflict, verbal and emotional abuse) while in the care of his grandmother were not heard by Respondent staff;
The Applicant alleges she was not provided reasons for why the Respondent recommended that the grandmother have custody of the Child; and
The Applicant alleges she was not provided with a list of the Respondent’s concerns with her parenting.
19All the Issues/Concerns in the Applicant’s 2022 Complaint were dismissed as their subject matter had been or was currently before the Court. As such, the CFSRB did not have jurisdiction to review the Complaints pursuant to s. 120(8) of the Act.
20As noted above, the Applicant’s current Complaint addressed the following 3 Issues/Concerns:
The Applicant alleges that the Respondent did not provide her with an explanation as to why her child was removed from her care;
The Applicant alleged that Respondent staff did not try to assist her to regain custody of the Child; and
The Applicant alleges that Respondent staff did not hear her concerns about what is happening to her son.
21I find that the 3 Issues/Concerns in the current Complaint have the same subject matter as the Issues/Concerns in the 2022 Application: they deal with the Applicant not having received an explanation for the removal of the Child; the lack of supports for the Applicant to regain custody of the Child; and the Applicant’s current concerns with the health and safety of her Child.
22In a decision dated October 11, 2022, I determined that the subject matter of the 2022 Complaint had been before the Court and dismissed the Complaint in its entirety. I will not review the rationale and evidence in support of this decision; however, it can be accessed on at https://canlii.ca/t/jt8n0
23Given the similarities of the subject matter of the current Complaint with the 2022 Complaint; and given the failure of the Applicant to provide submissions on whether the subject matter of the current Complaint was separate and different from her 2022 Complaint, I find that the Issues/Concerns in the current Complaint have been before the Courts. As such, I find that the CFSRB does not have the jurisdiction to review the current Complaint.
24I then considered whether the Applicant’s provision two complaints with identical subject matter amounted to an abuse of process, and whether the Applicant should be deemed a vexatious litigant.
25Given the guidance in DP v. Children’s Aid Society of Hamilton (CFSA s. 68), 2017 CFSRB 30, I considered any relevant factors and the interests of the parties in my contextual analysis. The Applicant did not provide any submissions and therefore, I had no way to assess any relevant factors or interests on her part. I considered the Respondent’s submission requesting the Complaint be deemed ineligible to proceed. The Respondent indicated that it has not had any involvement with the Applicant since the 2022 Complaint was dismissed in its entirety. I find that it is unreasonable for the Respondent to have to reply to allegations in a Complaint whose subject matter has already been deemed to be outside the CFSRB’s jurisdiction, and which deal with subject matter that has been settled at Court.
26The jurisprudence (CUPE Local 79, 2003 SCC 63 (CUPE)) clearly states that attempting to have the same subject matter relitigated is an abuse of process as it goes against the principle of finality.
27The CFSRB has the authority to address issues of abuse of process and make orders to prevent the abuse of process pursuant to CFSRB Rule A8.1.
28Given that the Applicant’s current Complaint and the 2022 Complaint deal with nearly identical issues that have been decided by the Court; I find that the Applicant’s current Complaint amounts to an abuse of process. The Respondent is entitled to finality in relation to Issues/Concerns which have been decided by the Courts and/or by the CFSRB.
29Given the Applicant’s failure to provide submissions regarding why the CFSRB should not declare her a vexatious litigant; and given that she has submitted a substantively identical Complaint to the CFSRB whose subject matter has been decided by the Courts; I find that it is appropriate to declare the Applicant a vexatious litigant. As such, she is required to obtain permission from the CFSRB before filing any new complaints against the Respondent.
DECISION
30The Complaint is dismissed in it is entirety. The Applicant has been declared a vexatious litigant based on her submitting a substantively identical complaint against the Respondent to the CFSRB.
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.
Dated at Toronto, April 14, 2023.
Daniel McSweeney
Daniel McSweeney
Member