Sheila MacKinnon

The Children's Aid Society of Toronto appealed a Superior Court decision that upheld an Ontario Court of Justice order concerning monthly access to children.

The Society argued that the OCJ lacked jurisdiction to entertain an enforcement motion under Rule 1(8) of the Family Law Rules after a final order had been made, contending that the Child, Youth and Family Services Act, 2017 was a complete code.

The Court of Appeal dismissed the appeal, holding that the OCJ retained jurisdiction to enforce its orders, as the definition of "case" in the Family Law Rules explicitly includes "enforcements" and requiring a new proceeding for enforcement would contradict the principle of avoiding multiplicity of proceedings.

The court also found no reasonable apprehension of bias by the Superior Court judge and addressed procedural fairness concerns.

The parties, who were in the middle of a divorce, brought competing interim motions regarding the parenting of their five-year-old daughter.

The respondent mother sought to relocate with the child from Whitby to Keswick, while the applicant father sought to increase his parenting time to an equal shared schedule.

The court dismissed the mother's relocation motion, finding it premature to decide before trial.

The court partially granted the father's motion, increasing his parenting time to better accommodate his schedule and minimize disruptions, but declined to order equal shared parenting on an interim basis due to conflicting affidavit evidence regarding the parties' ability to co-parent.

This is a costs decision in a child protection proceeding under Part V of the Child, Youth and Family Services Act, 2017.

The maternal grandmother sought costs of $16,528.92 against the father and paternal uncle following a successful motion to terminate the paternal uncle's overnight access to the children and restrict him to day access only.

The court dismissed the motion for costs, finding that although the maternal grandmother was successful on the motion, the circumstances of a child protection proceeding warranted no costs award.

The court held that parents should be entitled to vigorously defend themselves in child protection proceedings without fear of cost sanctions, and that costs should only be awarded in rare and exceptional circumstances.

The maternal grandmother, who had custody of two young children, brought a motion to vary a temporary access order to change the paternal uncle's access from overnight to day access only.

The motion was supported by the Children's Aid Society and opposed by the paternal uncle and the father.

The maternal grandmother alleged that the paternal uncle breached the access conditions by allowing the father, who had substance abuse issues, to stay overnight and have unsupervised access.

The court found that the maternal grandmother met the onus of proving a change in circumstances, relying on the children's statements and a private investigator's report, and concluded that overnight access with the paternal uncle was no longer in the children's best interests.

The motion was granted.

The respondent school board requested early dismissal of a human rights application alleging discrimination in its disciplinary processes, arguing the matter was appropriately dealt with by the Child and Family Services Review Board (CFSRB) during an expulsion appeal.

The Tribunal denied the request, finding that the CFSRB only determined whether the applicant committed the acts and should be expelled under the Education Act, but did not review the respondent's disciplinary processes for discrimination.

The application will proceed.

The applicant, a student with Autism Spectrum Disorder, filed a human rights application against the school board and the Ministry of Education regarding his special education placement.

Prior to the hearing, the applicant requested to withdraw the application against the Ministry.

The school board objected, arguing that the withdrawal should be denied or conditions imposed because the application sought public interest remedies affecting the Ministry.

The Tribunal granted the request to withdraw without imposing terms, consistent with its established practice of not inquiring into reasons for withdrawal prior to a hearing, and deferred the determination of appropriate remedies to the hearing adjudicator.

The complainant sought remedies following a finding that the respondent school board discriminated against him by involuntarily transferring him to another school.

The Tribunal awarded $5,000 for injury to dignity, feelings, and self-respect, noting that the impact of the transfer must be assessed in the context of the complainant's serious misconduct that led to his suspension.

The Tribunal also awarded $398.16 in special damages for transportation costs but denied the claim for private school tuition.

In a remedy decision following a finding of racial discrimination regarding a school transfer, the Tribunal declined to order broad systemic remedies but ordered the school board to develop learning materials based on the case for its equity training.

The Tribunal also ruled that if the complainant wishes to rely on psychological evidence to support his claim for $80,000 in general damages, he must disclose his complete medical records to the respondent.

The Tribunal confirmed it lacks jurisdiction to award legal expenses.

During a hearing, a witness who was a union local president refused to identify teachers who had shared information with him, claiming privilege over communications between union members and a union representative.

The Tribunal applied the Wigmore criteria and found that the communications did not originate in a confidence that they would not be disclosed, as the witness had already shared general information about the communications with a Board investigator.

The Tribunal ordered the witness to re-attend and answer questions regarding the identity of the members and the content of their communications.

In an interim decision regarding a human rights complaint alleging racial discrimination in a school transfer and suspension, the adjudicator ruled on the admissibility of expert evidence and student records.

The respondents sought to introduce expert evidence from a forensic document examiner regarding alleged erasures on the complainant's chemistry exam.

Applying the Mohan test, the adjudicator found the expert evidence inadmissible as it was not necessary to assist the trier of fact.

The adjudicator also directed that written permission must be provided for the admission of documents forming part of any student's Ontario Student Record, pursuant to section 266(2) of the Education Act, failing which the documents would be struck from the record.

In an interim decision during a human rights hearing, the Tribunal ruled on several evidentiary issues.

The Tribunal excluded documents relating to the pre-VRA period and the Commission's investigation report.

The Tribunal refused to admit the expert evidence of Dr. Frances Henry on anti-Black racism, finding it irrelevant because the complainant identified as 'brown' rather than 'Black', and unnecessary to assist the trier of fact.

The Tribunal allowed the respondents to call two police officers to testify about questioning the complainant's brother, finding that the brother's own testimony authorized disclosure under the Youth Criminal Justice Act.

Finally, the Tribunal denied the respondents' request for a sweeping publication ban regarding other students' academic records, noting that the Education Act privilege applies only to Ontario Student Records.

In an interim decision regarding a human rights complaint against a school board and several individuals, the Tribunal considered whether to remove certain personal respondents.

The Commission advised it would not proceed against four individuals, who were subsequently removed.

The Tribunal then analyzed whether to remove a fifth individual, a superintendent, applying factors such as corporate vicarious liability and whether her individual conduct was a central issue.

Finding no compelling reason to keep her as a party and no prejudice in her removal, the Tribunal removed her.

The Tribunal declined to remove a sixth individual whose conduct was central to the allegations.

The appellant appealed the special education placement of her child, who was identified with autism.

The appellant brought several preliminary motions regarding procedural fairness, including requests for the Tribunal to order the school board or the Tribunal itself to provide legal counsel for the child, and to require the use of collaborative lawyers.

The school board brought a motion arguing the Tribunal lacked jurisdiction to hear the appeal because the appellant had agreed with the Special Education Appeal Board's placement decision.

The Tribunal dismissed all of the appellant's motions, finding it lacked jurisdiction to order legal representation or dictate the choice of counsel.

The Tribunal upheld the school board's motion, concluding it had no jurisdiction to hear the merits of the appeal because the appellant had not demonstrated dissatisfaction with the placement decision as required by section 57(3) of the Education Act.

In an interim decision regarding a human rights complaint alleging discrimination and reprisal, the Tribunal addressed the consolidation of complaints and bifurcation of the hearing.

The Tribunal found that the Commission lacked the authority to combine a newly referred reprisal complaint with a main complaint already before the Tribunal.

However, the Tribunal exercised its own power to consolidate the proceedings to avoid a multiplicity of proceedings, while ensuring personal respondents would not face liability for the reprisal allegations.

The Tribunal also ordered the bifurcation of the hearing into liability and remedy phases to expedite the process and provided further case management directions.

The appellant brought a series of preliminary motions at the outset of an appeal regarding her child's special education placement.

In one motion, she requested that the Tribunal order the respondent school board to provide legal counsel for her child.

The Tribunal dismissed the motion, finding that it lacked the jurisdiction to order the school board to provide legal representation for the child.

Reasons for the decision were to be released at a later date.