M.H. v. Jewish Family & Children’s Services, 2009 CFSRB 44

CHILD AND FAMILY SERVICES REVIEW BOARD

M.H. v. Jewish Family & Children’s Services

REASONS FOR DECISION ON MERITS

Date: August 18, 2009

Citation: 2009 CFSRB 44

Indexed as: M.H. v. Jewish Family & Children’s Services (CFSA s.68)

1The Applicant, M.H., filed an application with the Child and Family Services Review Board (the “Board”) on May 27, 2009 pursuant to section 68(5) of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”) regarding a decision of the Jewish Family & Children’s Services (the “Society”). The application was determined to be eligible on June 4, 2009. The hearing was held on August 7, 2009 in Toronto, Ontario.

INTRODUCTION

2The Applicant applied to the Board following a meeting with the Internal Complaint Review Panel (“ICRP”) of the Society on April […], 2009. He believed that the ICRP did not consider each of his complaints at the meeting. He believed the Society failed to address his issues as presented and did not respond to his many concerns in its written summary of the ICRP dated May […], 2009.

PRELIMINARY ISSUES

3Counsel for the Society introduced two Society staff at the beginning of the proceedings, namely, M.A., Supervisor, and Chair of the ICRP held on April […], 2009 and R.T., a Family Services Worker who had worked with the Applicant and his family in the past. The Applicant objected to the presence of two Society staff at the hearing on the grounds that the Society had indicated at the time of the pre-hearing held on July 10, 2009 that the Society would not be calling any witnesses. The Board ruled that it would allow the staff to remain in order to ensure that the Board had the opportunity to obtain the evidence it required to arrive at a decision.

4Counsel for the Society indicated that it would likely be calling only Ms. M.A. as a witness and that Mr. R.T. was there as an observer. The Applicant objected to Mr. R.T.’s presence. The Board ruled to exclude Mr. R.T. from the proceedings on the grounds that the proceedings were in camera, that Mr. R.T. was not being called as a witness and that he was not the instructing client for counsel.

BACKGROUND

5The Applicant submitted 39 complaints to the Board which he alleged were the same as the complaints that were submitted to the Society for consideration at the ICRP meeting. The complaints included concerns about the conduct of individual Society staff that had dealt with the Applicant, the conduct of staff at a previous ICRP meeting held in March of 2009 and the conduct of the Society’s Executive Director. The focus of these proceedings were:

• whether the ICRP heard the Applicant’s concerns;

• whether the ICRP answered those concerns in its letter of May […], 2009, and

• whether the composition of the ICRP was constituted in accordance with the Act.

6Counsel for the Society submitted that the ICRP was constituted in accordance with the Act in that it was comprised of members selected by the Executive Director including a senior staff person, two other Society staff and an external person. Counsel further submitted that the Applicant had submitted 37 or 39 complaints to the ICRP that they were dealt with at the ICRP and a written summary response was provided to the Applicant on May […], 2009. Counsel asserted that the Applicant was not happy with the ICRP and the fact that the ICRP may have discussed solutions that were not included in the Society’s written summary means that the Society did not agree with the solutions rather than signify that the Society had done something wrong. Counsel suggested that the regulations do not set out any specific way for an ICRP to be conducted and that the Applicant had expectations that it should have been conducted as a previous ICRP in which he had been involved had been conducted.

7In summary, counsel for the Society submitted that the composition of ICRP was in accordance with the Act, the ICRP meeting did consider the Applicant’s concerns and the letter from the panel addressed his concerns.

ANALYSIS

8The Society did not provide any testimony or submit any documents into evidence. The Board relied upon the Applicant’s application to the Board including the Society’s written summary of the ICRP dated May […], 2009 and the Applicant’s testimony.

9The Applicant testified that he had submitted 39 separate complaints for the ICRP meeting. He stated that he might have originally submitted 37 items. The Society asked him to put dates on each of these and ultimately 39 items were brought to the ICRP meeting. He stated that he came to the ICRP meeting with collateral materials to support all of his complaints and he was prepared to answer detailed questions about each of his concerns.

10The Applicant testified that in his view the Society did not hear his complaints during the ICRP meeting. Ms. M.A. chaired the ICRP and she wanted to group his complaints together for unclear reasons. The Applicant asserted that he felt under a time pressure since one of the panel members was volunteering his time. The Applicant recalled that the meeting lasted about an hour and his expectation was that each of his concerns would be discussed. When he attempted to speak to his specific concerns, Ms. M.A. persisted in wanting to group them together.

11The Applicant also testified that the letter summarizing the meeting clearly reflected that not one of his complaints was dealt with. He indicated that he had attended a previous ICRP with the Society and his experience at that time was that each of his issues was addressed at the meeting itself and the Society provided a written response that listed each concern and the specific action it would take with respect to each concern. He stated that he had expected the process to be similar in this more recent experience but it was not. In his view, the May […], 2009 letter he received from the Society was a “sympathy letter”.

12The Applicant expressed his concerns about the composition of the ICRP. These included the presence of a member who did not have sufficient time to deal with his numerous concerns and the presence of individuals who ultimately report to the executive director of the Society about whom the Applicant had a number of complaints.

13The Applicant submitted that based on his previous experience with the Society and his previous involvement with the Board, in his view, the Society does not take the practices of the Board seriously, e.g., the issue of witnesses. Furthermore, the Society did not inform him of the powers of the ICRP. He stated that his belief was that since he had submitted a long list of complaints, the Society could have set out a plan of action that took these into account, dealt with some of them at a first meeting and developed a plan to deal with the others. During discussions he had in the past with Ms. M.A., he had been led to believe that the Society would review his file as part of a process of resolution but that their written response on May […], 2009 did not mention this at all.

14The issues before the Board are whether the ICRP heard the Applicant’s concerns; whether the ICRP answered those concerns in its letter of May […], 2009, and whether the composition of the ICRP was constituted in accordance with the Act. Each of these issues will be considered separately.

15The Applicant’s testimony was credible and consistent with respect to whether the ICRP heard each of the concerns he submitted in writing and which he was prepared to discuss in detail as evidenced by his testimony that he had brought material to the ICRP to assist in the process. In the view of the Applicant, the ICRP did not hear his concerns in detail at the meeting. At the ICRP, the Society wanted to proceed in a fashion that was not acceptable to the Applicant and as a result, his concerns were not heard. Based on the Applicant’s testimony and in the absence of direct testimony from the Society regarding what transpired at the ICRP meeting, the Board concludes that the ICRP did not hear the Applicant’s concerns.

16The Board considered the Applicant’s testimony and the summary of the ICRP dated May […], 2009 in order to determine whether the Society answered his concerns in its summary letter. The Applicant clearly believes that the letter does not reflect the concerns that he raised in writing prior to the ICRP nor does it speak to a plan of action to resolve them or provide explanations to account for the incidents outlined. It is clear to the Board in reviewing the Society’s response that the letter does not deal with the 39 concerns submitted to the Society that were the subject matter of discussion at the ICRP. The Board recognizes that the legislation, specifically, section 9 of Ontario Regulation 494/06, is not helpful with regard to how full an explanation the Society should provide after an ICRP. Section 9 is reproduced below:

Within 14 days after the meeting, the ICRP shall send a written summary of the results of the meeting, including any agreed upon next steps, to the complainant and the executive director of the society to which the complaint was made.

17The Board is of the view that in order for the process to be meaningful, it is necessary for the Society to provide a summary that directly reflects the concerns raised in an ICRP, the actions planned by the Society to address these concerns and/or an explanation for the actions taken by the Society with respect to the concerns raised. The ICRP summary provides a permanent record and a closure to the ICRP process and it is important for the Society to outline what steps were taken with regard to the concerns raised, the conclusions that were reached with respect to the concerns raised, what decisions were made and the reasoning behind them, while respecting the confidentiality required by the Act.

18The Society’s letter of May […], 2009 regarding the ICRP provides no reference to any of the specific concerns that the Applicant submitted in writing to the Society. The letter does not outline any course of action regarding the concerns raised or explanation to account for the incidents alleged by the Applicant.

19The Board acknowledges that the lack of clarity in the legislation has not assisted in providing direction as to the specificity of the letter to the Applicant following an ICRP. However, it is reasonable to expect that a written summary following an ICRP should clearly reflect a detailed response to each of a complainant’s concerns, a course of action to address the concerns and an explanation for Society actions wherever possible with respect to each of the concerns raised. If decisions were reached by the Society, the summary should include reasons for the decision. The Board concludes that the written summary provided to the Applicant by the Society did not answer any of the Applicant’s concerns.

20The Board heard from the Society’s counsel that the composition of the ICRP met the requirements of the Act. Section 6 of Ontario Regulation 494/06 outlines in detail the composition of an ICRP as follows:

Members of ICRP

6. (1) The members of the ICRP shall be selected by the executive director of the society and shall include a senior manager from the society, other society staff as required and at least one person who is external to the society. O. Reg. 494/06, s. 6 (1).

(2) A person selected to be a member of the ICRP who is external to the society may be a member of the society’s board of directors. O. Reg. 494/06, s. 6 (2).

(3) No person selected, as a member of the ICRP shall have had any direct involvement with the complaint being reviewed. O. Reg. 494/06, s. 6 (3).

21The Board heard that the members of the panel included Ms. M.A., a senior manager from the Society, E.K., a Society staff person and M.T., a member of the Society’s board of directors. None of these individuals had direct involvement with the complaints being reviewed.

22The Board recognizes that the Applicant believed that no Society staff could conduct themselves in an objective manner given that they are all accountable to the executive director of the Society who was the subject of a number of his concerns to be heard by the ICRP. However, the Board concludes that the composition of the ICRP met the requirements of the Act as set out in the regulations.

DECISION

23Section 68.1(7) provides that after reviewing a complaint the Board may,

(a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;

(b) order the society to provide a response to the complainant within a period specified by the Board;

(c) order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act;

(d) order the society to provide written reasons for a decision to a complainant;

(e) dismiss the complaint; or

(f) make such other order as may be prescribed.

24The Board orders the Society, pursuant to section 68.1 (7) (a) of the Act, to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation. The Board orders the Society to conduct an ICRP meeting or meetings, as required, to hear all of the concerns identified by the Applicant that were the subject of the ICRP meeting held on April […], 2009. The initial ICRP meeting is to be scheduled within 14 days of this decision. The Society’s written summary of the ICRP meeting is to clearly reflect a detailed response to each of the Applicant’s concerns, a course of action to address the concerns and/or an explanation for Society actions with respect to each of the concerns raised. If decisions are reached by the Society, the summary shall include reasons for the decisions.

Wendell White

Presiding Member

Gail Gonda

Panel Member

Nycole Roy

Panel Member