M.H. v. Jewish Family & Child Services, 2009 CFSRB 69

CHILD AND FAMILY SERVICES REVIEW BOARD

M.H. v. Jewish Family & Child Services

REASONS FOR DECISION

WRITTEN REVIEW

Date: November 16, 2009 Citation: 2009 CFSRB 69 Indexed as: M.H. v. Jewish Family & Child Services (CFSA s.68)

1The Child and Family Services Review Board (the “Board”) received an application from M.H. (the “Applicant”) on September 30, 2009 regarding a complaint against the Jewish Family & Child Services (the “Society”) pursuant to section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”).

2The Board has determined that an oral hearing is not required in this case as the Board has sufficient information before it to make its decision based on the written material filed. The first issue for the Board is whether it has jurisdiction to hear the application. If the Board has jurisdiction, the issue for the Board is whether the Society complied with the legislative requirements for internal complaints.

3On October 20, 2009, the Board determined that the Applicant’s application was eligible to proceed to the next stage of the Board’s process: the receipt of the Society’s Summary Reply. The application was found eligible under section 68.1 (4) 1, 2 and 3 which relate to statutory and regulatory compliance with the internal complaint process.

4Sections 68.1 (4) 1, 2 and 3 provide as follows:

68.1 (4) The following matters may be reviewed by the board under this section.

1. Allegations that the society has refused to proceed with a complaint made by a complainant under subsection 68(1) as required under subsection 68 (2).

2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.

Section 68 (1) of the Act states that:

68 (1) A person may make a complaint to a society relating to a service sought or received by that person from the Society in accordance with the regulations.

Pursuant to section 68 (2):

68(2) Where a society receives a complaint under subsection (1), it shall deal with the complaint in accordance with the complaint review procedure established by regulation, subject to subsection 68.1 (2).

5The Board received the Society’s Summary Reply to the application on October 27, 2009. The Summary Reply included a copy of a letter to the Applicant dated October […], 2009. The Society also provided copies of a Court Order dated August […], 2008. The Society’s position is that the subject of the Applicant’s complaint is an issue that has been decided by the courts. The Society relies on section 68. 1 (8) (a) of the Act which provides that:

68.1 (8)

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.

6Alternatively, the Society submits that it has addressed the Applicant’s complaints as required by the legislation.

7Based on its review of the application and the Society’s summary reply and attachments, the Board has determined that it has jurisdiction to deal with the application except for two specific complaints. The Board has also determined that the Society did not comply with the legislative requirements as referenced in subsections 68.1 (4) 1, 2 and 3 of the Act. The reasons for these decisions and the Board’s order follow.

BACKGROUND

8The Applicant is the father of A., born October […], 1996. Pursuant to the August […], 2008 Order of Justice Curtis (“Order”) the Applicant has access to A. if she wants to see him, at a Society office, once per week for one hour. The Order further provides that “If Mr. M.H. behaves in a manner deemed unreasonable or inappropriate by the supervisor, the visit shall be terminated immediately” and contains other restrictions on access. The Society worker involved with the Applicant, supervising the visits is R.T..

9On August […], 2009, the Applicant forwarded the following complaints (“August complaints”) to the Society:

I wish to register a complaint.

1. The worker R.T. refused to answer questions put to him regarding my file

2. The worker R.T. for treating me unfavourably compared to how he treats my former wife

3. The worker R.T. who refused to relay important messages to my former wife regarding making sure I have access to my daughter yet.

4. The worker R.T. for doing nothing to ensure the court order is followed regarding access.

5. The worker R.T. who used the denial of my access to resolve issues with me instead of telling the truth. This is an abuse of his powers.

6. The worker R.T. was very angry at me during this discussion and in his fit of rage, terminated my access out of revenge.

7. The worker R.T. who had me escorted off the property by security when I never did anything wrong.

8. The worker R.T. who violated a court order granting me access because I told him he is going to face yet another complaint.

10On September […], 2009 the Society contacted the Applicant by email to offer him a meeting with the Executive Director, R.C. and H.H. on September […], 2009.

11On September […], 2009 the Applicant sent a reply email to the Society stating that his fax did not request a meeting with Dr. R.C. and Mr. H.H. but that it stated that the matter be sent to an Internal Complaint Review Panel (“ICRP”). The email added: “However, I can give these guys a chance to deal with the complaint on Thursday and be available on the […] at 4 p.m.”

12A meeting was held on September […], 2009 with Dr. R.C. and Mr. H.H..

13On September […], 2009, Mr. M.H. sent an email to the Society asking that his complaint be forwarded to “the Internal Complaint Panel headed by M..” The email also states: “I am going to give this process one more chance and will meet with Mr. H.H. and the subject worker next week. However, I do not want this to drag on any longer should they not address my concerns appropriately.” He references Ministry guidelines about where complaints should go i.e. to the Board or the ICRP and not the Executive Director. He formally requests that his complaint go for review by the panel to see if it is eligible. He concludes that he will withdraw his complaint after his meeting if Mr. H.H. and the worker show good faith, honesty and fairness.

14In his email, he also adds two issues (“September complaints”) to the eight complaints already submitted, namely:

1. The worker telling his superior lies about how he handled the issues I was complaining about, namely did he relay messages to my former wife.

2. The worker writing a damaging letter that contains factual errors regarding the day that caused my complaint.

15On October […], 2009, the Society wrote to the Applicant about the August complaints, setting out that they had met with him on September […], 2009, that Mr. H.H., the worker and the Applicant had a phone meeting on September […], 2009 to deal with the issues raised in his letter and that the Society also provided a written response on September […], 2009. The October […], 2009 letter sets out the Society’s response to the 8 issues raised in the August […], 2009 letter of complaint.

ANALYSIS

Jurisdiction

16The Society’s position is that the Board has no jurisdiction because the subject of the Applicant’s complaint is an issue decided by the Court because the actions complained about involved the worker carrying out the terms of the Order. The Summary Reply states that the Applicant has the option to vary the order and that he can and has sought relief in Court. The Summary Reply did not include any court documents to indicate that the Applicant has raised the subject of his complaints with the Court.

17The Board does not agree with the Society that the August complaints numbered 1, 2,3,5,6 and 7 or the September complaints have been decided by or are before the Court. The Society, in carrying out the Court Order, is coordinating and hosting access and engaging with the Applicant incidental to its role. The behaviour of the worker during this interaction with the Applicant is not the subject of a Court proceeding. Under the Order, the Society is also exercising discretion in terms of whether the Applicant’s behaviour is unreasonable and thus, whether the visit will be stopped. The complaints are about the conduct of the worker generally and include a question as to whether the conduct of the worker in stopping a visit was a proper exercise of discretion. The Order leaves this determination to the Society as a matter of discretion. The Court has delegated this determination and has made the Society and not the Court the decision maker about what conduct warrants stopping access. The Board has the mandate and the power to review complaints about services received from a Society including the actions of a worker in coordinating and hosting access visits that were ordered by the Court.

18The Board does find that the manner in which the August complaints numbered 4 and 8 are framed calls for a determination as to whether the Society complied with the Order. The Board does not have the power to decide these issues. Only a court can determine whether or not its order has been complied with.

19The Board therefore concludes that it has jurisdiction to deal with the August complaints numbered 1, 2, 3, 5, 6 and 7 and the September complaints.

Complaint Process

20The Applicant’s position is that he made written complaints and he requested that the complaint process be followed, including a determination of eligibility and sending the matter to an ICRP.

21The Society’s position is that the Applicant acquiesced to the process offered by the Society, that they met with him and had discussions with him and that they have addressed his complaints.

22The wording in section 68 (2) is mandatory. Where the Society receives a written complaint, as here, it shall deal with the complaint in accordance with the procedure established by the regulation.

23Under Regulation 494/06 to the Child and Family Services Act (“Regulation”), the Society must determine within seven days of receipt of a written complaint whether or not it is eligible for review. If it is not eligible, the Society must notify the complainant of its decision on eligibility with reasons in writing. If it is found eligible, the Society must establish an Internal Complaints Review Panel (ICRP) and must notify the Applicant that the complaint is eligible and of the date and time of the ICRP.

24The Society did not engage in the complaint process as required by the Regulation, for either the August or the September complaints. Instead, for the August complaint, it convened a meeting with the Executive Director and the Director of Service. The Society asserts that the Applicant acquiesced to this process as an alternative to the process in the regulation. The Society’s initial response to the complaints was approximately sixteen days after the August complaint was filed and did not contain a decision on eligibility.

25Even if it engages in an alternate process, on consent, the Society must still follow the regulatory requirements. A complainant can withdraw his or her complaint if satisfied with an alternate resolution process. The Society cannot, on its own option, circumvent a formal complaint. Further, the Applicant was clear in his September […], 2009 email and in his September […], 2009 email (after the attempted informal resolution) that he wanted the matter to proceed as required, to the eligibility/ICRP stage.

26The Society has never formally responded to the two September complaints. These complaints were not part of the September […], 2009 meeting but arose after the fact.

27The Society’s October […], 2009 letter and the correspondence and meetings referenced in it represent a continuation of a process that the Society unilaterally determined would operate as an alternative to and not parallel to the formal complaints process. While a parallel process would have been permissible to attempt to resolve matters in good faith, the Society was still required to follow the statute and the regulations and did not do so.

28The Board finds that the Society has failed to comply with s. 68 (2) of the Act and subsections 3 to 5 of Regulation 494/06. The Society did not respond to the Applicant’s August complaint within the timeframe required by the regulation and did not respond at all to the September complaint. The Society did not engage in the eligibility decision for either set of complaints as required and has failed to comply with the complaint review procedure under the Act. The Applicant’s complaints before the Board under subsections 68.1 (4) 1, 2 and 3 have been made out.

29The Board is ordering that the Society comply with the complaint review procedures in the Regulation and to proceed with the Applicant’s complaints pursuant to the legislation. The Society has not yet and must engage the eligibility process. The Board made findings that certain complaints were not issues that have been decided by or are before the Court. These findings do not bind the Society. However, the Board suggests that these complaints be found eligible and proceed to an ICRP. Should the Society find for example, that these complaints are not eligible because they were decided by the Court, the Applicant would have the option of seeking a review of the eligibility decision (the conclusion of the internal process) under s. 68(5). This matter would then be before the Board a second time. The Board suggests that the most expeditious route be followed.

CONCLUSION

30The Board has jurisdiction to deal with all of the Applicants’ complaints except the August 27, 2009 complaints numbered 4 and 8.

31The Board’s decision on the merits and its order apply only to those complaints over which the Board found jurisdiction.

32The Board allows the Applicant’s application under sections 68.1 (4) 1; 68.1(4) 2 and 68.1 (4) 3.

33The Board orders the Society to comply immediately with the complaint review procedure established by Regulation 494/06 under the Child and Family Services Act and to proceed with the Applicant’s complaint in accordance with the complaint review procedure established by that Regulation.

Sheena Scott

Board Member