KH v Children’s Aid Society of Toronto, 2024 CFSRB 108

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

KH Applicant

-and-

Children’s Aid Society of Toronto Respondent

DECISION

Adjudicator: Catherine Bickley Date: October 15, 2024 Citation: 2024 CFSRB 108 Indexed As: KH v Children’s Aid Society of Toronto (CYFSA s.120)

Background

1On February 19, 2019, the Applicant filed an Application 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 Applicant and Respondent participated in the CFSRB’s voluntary mediation process and reached a settlement. The CFSRB’s file was closed on May 2, 2019.

3The Respondent is now also a Respondent in an Application brought by the Applicant before the Human Rights Tribunal of Ontario (“HRTO”). The Respondent is asking the CFSRB to relieve it from Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure so that it may:

… use, share, discuss and disclose any documents and decisions related to CFSRB file CA19-0041 for the sole purpose of relying on them in the HRTO Application 2020-40582-I.

4The Respondent bases this request on its position that the Applicant’s HRTO Application “is an attempt to deal with issues already raised by him” in the CFSRB Application.

5The Applicant does not want “any of [his] complain (sic) to CFSRB against [the Respondent] or any related information to be disclosed without my written consent.” He states that his complaint to the HRTO is about discrimination and human rights violations and that his complaint to the CFSRB was about different issues.

CFSRB Confidentiality Rules

6Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure govern the confidentiality of documents and decisions in CFSRB proceedings, as follows:

9.3 Subject to an order of the Court or the CFSRB, parties and their representatives shall not use documents or information obtained under these Rules or in the course of the CFSRB's proceeding for any purpose other than the proceeding before the CFSRB.

9.4 All CFSRB decisions are subject to a confidentiality order and may also contain information subject to section 87(8) of the CYFSA, 2017. The CFSRB publishes a redacted version of its decisions. No one shall circulate, reproduce, communicate or publish any information contained in or obtained from an unredacted decision of the CFSRB without first obtaining an order of the CFSRB or the Court.

Analysis

7The Respondent seeks a waiver of the CFSRB’s confidentiality rules so it can use documents and decisions from the CFSRB process as part of its defence to an HRTO Application brought by the Applicant. It argues that the HRTO Application deals with the same issues as the CFSRB Application. If the HRTO accepts this argument, it may dismiss the HRTO Application.

8In support of its request, the Respondent relies on the CFSRB decision in LT v Durham Children’s Aid Society, 2019 CFSRB 15 (“LT”) which states, at para 12:

The question of whether an application before one administrative tribunal raises allegations that have already been resolved in proceedings before another administrative tribunal is an important one. The HRTO cannot make an informed decision on the issue without reviewing the relevant CFSRB documents.

9I adopt the reasoning in LT. The Applicant may be correct that the issues in the two Applications are different. The HRTO, however, cannot determine what, if any, impact the CFSRB proceeding has on the HRTO Application without reviewing the relevant CFSRB documents.

10For these reasons, I conclude that it is appropriate to vary the CFSRB’s Confidentiality Order to permit both the Applicant and the Respondent to use specific CFSRB documents in the HRTO proceeding, including the Settlement Agreement and the Respondent’s correspondence flowing from the Settlement Agreement. Neither party, however, may disclose information about the mediation discussions which led to the Settlement Agreement

Order

11For the sole purpose of participation in HRTO File 2020-40582-I, the CFSRB’s Confidentiality Order with respect to CFSRB file CA19-0041 is varied as follows:

• The Applicant and Respondent may refer to and use the following documents:
  • February 19, 2019 Application
  • February 24, 2019 Correspondence from Applicant to CFSRB and the Respondent titled “complain part2”
  • March 7, 2019 Response
  • March 24, 2019 Reply
  • April 1, 2019 Settlement Agreement
  • April 3, 2019 Pre-Hearing/Mediation Report
  • April 23, 2019 Letter from the Respondent to the Applicant in fulfilment of the Settlement Agreement
• The names of the Applicant’s children and any other children referenced in the documents shall be redacted; and,
• The parties may use an unredacted version of this Decision in the HRTO proceedings.

Confidentiality Order

Pursuant 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, except as varied through this decision. 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.