Williams v. Children’s Aid Society of Toronto, 2010 HRTO 830

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roshika Williams

Applicant

-and-

Children’s Aid Society of Toronto, Carol Manak and Pam Dawe

Respondents

AND B E T W E E N:

Roshika Williams

Applicant

-and-

Alliance Youth Services Inc., Steve Catney and Ed Barron

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: April 15, 2010

Citation: 2010 HRTO 830

Indexed as: Williams v. Children’s Aid Society of Toronto

1These are two Applications made under s. 53(5) of the Ontario Human Rights Code, both dated February 19, 2009. The underlying complaints were both filed with the Ontario Human Rights Commission (the “Commission”) on March 2, 2007.

2The hearing in this matter commenced on November 23, 2009 and continued on March 25 and 26, 2010. Further hearing dates are scheduled for April 27, 28 and 29 (if necessary), 2010.

3The purpose of this Interim Decision is to address the applicant’s Request for an Order requiring the respondents to produce certain documents. The applicant originally filed a Request for Order with the Tribunal at the hearing on March 25, 2010 and subsequently filed a further Request for Order dated March 30, 2010.

4Further to the Tribunal’s direction, the respondents Children’s Aid Society of Toronto (“CAST”), Carol Manak and Pam Dawe filed a Response to Request for Order dated April 8, 2010 and the applicant filed reply submissions on April 13, 2010. No Response to Request for Order was filed by the Alliance Youth Services (“AYS”) respondents.

5This Interim Decision also will address the Request for Order by the CAST respondents for a confidentiality order regarding information pertaining to the minors in the applicant’s care.

Requests for Production

As against the CAST respondents

6The CAST respondents first raise an issue as to the timeliness of the applicant’s Requests, which were made in the midst of the hearing in this matter and after I had completed my questioning of the applicant and her witnesses and had commenced my questioning of the AYS respondents. I agree with these respondents that it certainly would have been preferable for the applicant to have raised her Requests at an earlier point in time. However, I also am cognizant that the applicant is not represented by legal counsel in this proceeding, and she states that she was not previously aware of the Tribunal’s power to order production from the respondents. In addition, I also am cognizant of the obligation under the Rules for respondents to disclose all arguably relevant documents in any event. Accordingly, in these circumstances, I am prepared to consider the applicant’s Requests.

7As previously indicated, the applicant has filed two Requests for Order, one dated March 25, 2010 and the other dated March 30, 2010. There appears to be considerable overlap between these two Requests. As the CAST respondents have made submissions in response to the March 30, 2010 Request, I will first address the various requests for production made in that document. To the extent that there are any further or additional documents requested in the March 25, 2010 Request, I will address these at a later point in my decision.

8The applicant first requests “all documents in CAS-T’s files regarding all three youth . . . which refer to the Williams”. I agree with the respondents that, as the quality of care provided to these youth is not an issue in this proceeding, this request is overbroad and is not relevant to the issues to be determined in this proceeding. Accordingly, this request is disallowed.

9The applicant’s next request is for “all CAS-T documents, including but not limited to memoranda and e-mails, which refer to the Williams or the youth in their care (from February 1, 2006 – February 28, 2007)” which is stated to include “internal communications, communications with outside individuals and agencies (including Alliance Youth Services and other government Ministries . . . and communications with the Williams”. Once again, this request is overbroad and not sufficiently particularized, and would encompass a myriad of documents which are not relevant to the issues to be determined in this proceeding. Accordingly, this request also is disallowed.

10The applicant’s third request is for “all notes of the following individuals in the files of the three youth during their stay with the Williams, as well as all notes taken from all Plan of Care meetings with the Williams, as well as all notes in reference to the Williams or their youth for the time period of February 1, 2006 – February 28, 2007”. This request is followed by the names of 12 specific individuals. Once again, this request is overbroad and would encompass a myriad of documents which are not relevant to the issues to be determined in this proceeding, and as such I am not prepared to require production from the CAST respondents in these terms. However, in my view, there may be some specific documents which are encompassed by this request which are arguably relevant to the issues to be determined, and so I will consider whether a more restrictive order for production may be appropriate with regard to each of the 12 individuals in respect of whom production is sought.

11The first individual identified is the personal respondent Pam Dawe. I have heard evidence in this proceeding that at a Plan of Care meeting with the applicant and her husband in or about early March 2006 that there was a discussion regarding whether the youth camp with which the applicant and her husband were involved was like a camp run by an organization called Freedom Village USA. I have further heard evidence that Ms. Dawe’s concerns about the youth camp were conveyed to Alliance Youth Services, and resulted in a meeting in or about early June 2006 which involved Ms. Dawe and the personal respondents Steve Catney and Ed Barron. I have heard evidence that this meeting resulted in the request for the applicant and her husband to provide a letter confirming their non-affiliation with Freedom Village USA, which was provided by letter dated June 7, 2006. I have heard evidence that Ms. Dawe also may have raised concerns about a website operated by the applicant and her husband. Finally, I have heard evidence regarding a telephone conversation alleged to have taken place between the applicant’s husband and Ms. Dawe in or about late January or early February 2007 in which the religious beliefs of the applicant and her husband and their affiliation with Freedom Village USA is alleged to have been discussed.

12In my view, any documents, notes or records in the possession of CAST or Ms. Dawe relating to these matters are arguably relevant to the issues to be determined in this proceeding, and should be produced. This also would encompass any documents, notes or records in which Ms. Dawe communicated or recorded the communication of any concerns she may have had regarding the youth camp operated by the applicant and her husband, the camp’s potential affiliation with Freedom Village USA or the applicant’s or her husband’s religious beliefs to anyone else at CAST, Alliance Youth Services or any other person or organization. Accordingly, I order that all such documents, notes or records in the possession of CAST or Ms. Dawe be produced to the parties and filed with the Tribunal.

13The applicant specifically has sought “all notes regarding why [Ms. Dawe’s] child was not replaced with the Williams after he was found AWOL, even though the Williams wanted to continue to care for the child”. No allegation was raised in the complaint which forms the basis for this proceeding regarding the non-replacement of this child with the Williams. As a result, these notes are not relevant to this proceeding, except and unless they include any reference to the youth camp operated by the applicant and her husband, the camp’s potential affiliation with Freedom Village USA or the applicant’s or her husband’s religious beliefs.

14The applicant also specifically has requested any notes regarding communications between Ms. Dawe and an individual named Linda Clarke regarding Freedom Village USA. In my view, the source of Ms. Dawe’s concerns about Freedom Village USA is not an issue in this proceeding. Rather, the issue is whether any such concerns were applied by Ms. Dawe to the applicant and whether this amounts to discrimination in violation of the Code. In my view, the order for production I already have made in relation to Ms. Dawe sufficiently captures the documents that are arguably relevant to the issues in this proceeding, and I am not prepared to extend my order to communications as between Ms. Dawe and Ms. Clarke except to the extent that they already have been captured by my order.

15The next individual identified is Ms. Dawe’s supervisor at the time in 2006, who is named by the CAST respondents as Harry Howie. As the CAST respondents have confirmed that they do not possess any notes made by Mr. Howie with respect to this matter, there is no basis to support any order for production.

16The applicant next identifies Anna Walynski, who was the CAST social worker for one of the children in the care of the applicant and her husband. The Request for Order filed by the applicant states that Ms. Walynski was the social worker for this child at the time an issue was raised by Alliance Youth Services regarding the child’s sexual orientation, and the applicant further states that she and her husband approached Ms. Walynski with their concerns that Alliance Youth Services was discriminating against them and that Ms. Walynski met with the applicant and her husband to discuss this matter. In my view, if there are any documents, notes or records in the possession of CAST which include reference to the issue raised regarding this child’s sexual orientation or any allegation raised by the applicant that she and her husband were being discriminated against by Alliance Youth Services, then any such documents are arguably relevant to the matters at issue in this proceeding and I order them to be produced.

17The applicant next identifies Gail O’Hearon, who was the social worker for one of the children in the applicant’s care at the time of the events of January 19, 2007. I have heard evidence from the applicant that she spoke to Ms. O’Hearon on January 22, 2007 regarding the issue of taking this child away for the weekend, and I also have heard evidence from the personal respondent Mr. Barron that he spoke with Ms. O’Hearon on January 19, 2007. If the CAST has any documents, notes or records pertaining to these two alleged phone calls, then any such documents are arguably relevant and I order them to be produced. I am not satisfied that the remaining documents sought in relation to Ms. O’Hearon are arguably relevant to the matters at issue in this proceeding.

18The applicant next identifies Eileen McConnell, who was the CAST social worker for one of the children in her care for the last week of his stay. The applicant states that Ms. McConnell’s notes would be relevant to reveal what reasons she was told that the child was being removed. The CAST respondents state that the applicant will have the opportunity to question other CAST witnesses as to why the child was being removed, and that what Ms. McConnell was told amounts to hearsay and is not the best evidence available. The issue for me to determine is not whether any notes or records made by Ms. McConnell as to why the child was being removed are the best evidence, but whether any such notes or records are arguably relevant to a matter at issue in this proceeding. In my view, any notes or records made by Ms. McConnell as to why the child was being removed from the applicant’s care would be arguably relevant to a matter at issue, and I order them to be produced.

19The applicant next identifies Doreen Pinto, who was a CAST supervisor at the relevant time. The applicant states that Ms. Pinto spoke to her husband and to one of the children in her care on the day that the children were being removed from the applicant’s home. In my view, to the extent that CAST has any documents, notes or records of Ms. Pinto relating to these discussions with the applicant’s husband or the child in their care on this date or which record the reason why the children were being removed from the applicant’s home, then any such documents are arguably relevant and I order them to be produced.

20The applicant also has requested any notes or records made of a meeting on February 1, 2007, which CAST has consented to disclose if any such notes exist.

21The applicant next identifies Christian Chereches, who already has testified as a witness in this proceeding and whose notes already have been produced. The CAST states that all relevant notes from Mr. Chereches have been produced. Accordingly, there is no basis for any order for production in relation to this individual.

22The applicant next identifies Mary Hutchings, who was Mr. Chereches’ supervisor at the relevant time and who was involved in the February 1, 2007 meeting. As previously stated, the CAST has consented to disclose the notes from this meeting, if any such notes exist. I am not satisfied that there is a proper foundation to order production of any further documents sought in relation to Ms. Hutchings as being arguably relevant to the matters at issue in this proceeding.

23The applicant next identifies Carol Manak, who is a personal respondent in this proceeding and who was the CAST Placement Supervisor at the relevant time. The CAST respondents have stated that they are not in possession of any notes from Ms. Manak with respect to this matter beyond what has already been disclosed. As a result, there is no basis to support any order for production in relation to this individual.

24The applicant next identifies Cathy Masterson, who formerly was a Placement Supervisor with CAST. The CAST respondents state that Ms. Masterson has advised that she does not possess any notes with respect to this matter. As a result, there is no basis to support any order for production in relation to this individual.

25The applicant next identifies Caroline Buck, who was the Executive Director for the CAST at the relevant time. While the applicant states that this person was identified as a personal respondent to this proceeding, that is not correct. In any event, the CAST states that it has determined that it does not possess any notes made by Ms. Buck with respect to this matter. As a result, there is no basis to support any order for production in relation to this individual.

26The applicant finally identifies Hanna Gavendo, who was the Manager, Client Services at the relevant time and who dealt with the internal complaint made by the applicant to CAST and the Child and Family Services Review Board. As the CAST states that disclosure of relevant non-privileged material already has been made with respect to those issues, there is no basis to support any order for production in relation to this individual.

27Finally, the applicant seeks production of “any overnight policy that CAST has with youth taking trips with foster parents overnight within Ontario, and reporting procedures”. The CAST respondents state that they are looking into the issue of any such policies and will consent to their disclosure if they exist.

28This completes the requests for production made by the applicant in her March 30, 2010 Request for Order. Having reviewed the March 25, 2010 Request for Order, it is my view that all production requests made in it already have been addressed, with the exception of a request for “the record of employment of any CAS-T staff who had contact with or worked on the file of the Williams and/or the children or youth in their care”. I am not satisfied that this request is arguably relevant to the matters at issue in this proceeding, and I decline to order production of this material.

29The CAST respondents shall provide all documents that I have ordered to be produced to the other parties and file these documents with the Tribunal by no later than April 22, 2010.

As against the AYS respondents

30The applicant first requests “the last known contact details (home address, and telephone number), date of birth, Record of Employment of any Alliance staff (resource workers) who had contact with, or worked on the file of, the Williams and/or the children and youth in their care and custody”. No specific explanation is provided by the applicant as to why these documents are sought. While I appreciate that such documents may have been sought by the Commission investigator for the purpose of locating individuals and conducting his investigation, this is an adjudicative rather than an investigative proceeding. If the applicant intends to call a specific employee or former employee of AYS as a witness, then this should have been specifically stated. In the absence of any such stated intention, I deny this production request.

31The applicant’s second request is for “any overnight policy for foster parents, referenced by Ed Barron in his evidence”. If AYS did have an overnight policy at the relevant time, then any such policy would be arguably relevant to a matter at issue in this proceeding, and I order it to be produced.

32The applicant’s third request is for “any ‘relief list’ that was provided to the Williams in January 2007”. This document was referenced in the evidence provided by Mr. Barron at the last day of hearing, and is arguably relevant. I order it to be produced.

33The applicant’s fourth request is for the “visitation log referenced by Ed Barron and Steve Catney, filled out by Dan [Carruthers] the week prior to the Williams’ termination”. Once again, this document was referenced in the evidence provided at the last day of hearing and is arguably relevant. I order it to be produced.

34The applicant’s fifth request is for “all AYS documents, including but not limited to memoranda and e-mails which refer to the Williams” and “specifically external communications with outside individuals and agencies”. This request is overbroad and not sufficiently particularized, and would encompass a myriad of documents which are not relevant to the issues to be determined in this proceeding. If the AYS respondents are in possession of any documents which are arguably relevant to the matters to be determined in this proceeding, which include the matters covered in my questioning of these respondents on the last days of hearing, then any such documents already should have been produced in accordance with the Tribunal’s Rules. In the event that, for whatever reason, any such documents have not already been produced, then I order the AYS respondents to produce any such documents to the other parties and file them with the Tribunal by no later than April 22, 2010.

35The AYS respondents shall provide all documents that I have ordered to be produced to the other parties and file these documents with the Tribunal by no later than April 22, 2010.

Request for Confidentiality Order

36The CAST respondents request that certain specific documents marked as exhibits to this proceeding be removed and sealed and not be available as part of the public record. The applicant consents to the making of such an order with regard to certain documents, specifically Exhibit 6, documents 4, 5, 6, 8 and 9, but objects with regard to the remaining documents.

37Exhibit 6, documents 4, 5 and 6 all contain specific reference to the names of minor children in the care of the CAST and the applicant at the relevant time and other personal information pertaining to these children, and I order that these records be sealed.

38With regard to Exhibit 6, documents 8 and 9, these are e-mails between the applicant and AYS relating to the culminating event prior to the termination of their contract. In my view, it would not be appropriate for these documents to form part of a sealing order, when a less restrictive means is available to preserve the privacy interests of the minor children. Accordingly, I order that the applicant redact these e-mails to remove the children’s names and the names and phone numbers of their relatives, with the exception of their first initials. The applicant shall provide to the Tribunal and the other parties at the next hearing day redacted copies of these documents, and the redacted documents shall replace the current documents as an exhibit to this proceeding.

39I will now address the documents where the request for a sealing order is contested. Exhibit 6, document 11 is a letter written by the applicant and her husband in response to their termination by AYS. Reference to the full names of two foster children in the care of the applicant and her husband is made in the second paragraph of this letter. The applicant takes the position that these names can be redacted and the redacted document need not be the subject of a sealing order. I agree. The applicant accordingly shall provide to the Tribunal and the other parties at the next hearing day redacted copies of this document to remove the children’s names with the exception of their first initials, and the redacted document shall replace the current document as an exhibit to this proceeding.

40Exhibit 6, document 13 contains an invoice which references the names of three foster children in the care of the applicant and her husband. Once again, the applicant takes the position that these names can be redacted. I agree, and require the applicant to provide redacted copies at the next hearing day.

41Exhibit 6, document 22 contains material sent to the Child and Family Services Review Board which contains the full names of two of the foster children in the care of the applicant and her husband. Once again, the applicant takes the position that these names can be redacted. I agree, and require the applicant to provide redacted copies at the next hearing day.

42Exhibit 6, document 30 is a letter from the applicant and her husband to the Executive Director of the CAST which contains the full names of two of the foster children in their care, together with an incident report regarding one of these children. Once again, the applicant takes the position that these names can be redacted. I agree, and require the applicant to provide redacted copies at the next hearing day.

43Exhibit 6, document 32 does not appear to identify the names of any minor children, and I do not see any basis for the making of a sealing order in relation to this document.

44Exhibit 6, document 47 contains two e-mails from one of the foster children who previously had been in the care of the applicant and her husband. The only reference to the child’s name is in the “from” line on these e-mails, which in my view can be redacted. I accordingly require the applicant to provide redacted copies at the next hearing day.

45The CAST respondents also request that any decisions of the Tribunal refer to the children by their initials and do not otherwise include any information that would identify any of the children. The applicant consents to this request. I have been and will continue to be mindful of the privacy concerns raised, and will only identify any children by initial and will not include information that would identify these children.

46Finally, the CAST respondents request an order that any party to the proceedings or any observers of the proceedings be ordered not to disclose or publish the names of any of the children referred to in the documentary or viva voce evidence.

This request also is on consent of the applicant. I already have made a temporary order of this nature, and hereby confirm this order on a permanent basis.