N.S. v. Children's Aid Society of Toronto, 2010 CFSRB 6

CHILD AND FAMILY SERVICES REVIEW BOARD

N.S.

v.

Children’s Aid Society of Toronto

REASONS FOR DECISION ON JURISDICTION & MERITS

Date: January 29, 2010

Citation: 2010 CFSRB 6

Indexed as: N.S. v. CAS of Toronto (CFSA s.68)

INTRODUCTION

1On November 20, 2009, N.S. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) against the Children’s Aid Society of Toronto (the “Society”) pursuant to section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). The application was found to be eligible for review under subsections 68.1(4) 4 and 5 on November 26, 2009.

2A pre-hearing conference was held on December 18, 2009. The Society argued that the Board does not have jurisdiction to hear the application because the Applicant’s complaints are identical to complaints he raised in 2005 and thus, based on the transitional provision in the current legislation, namely section 68(13), the Society’s complaint review procedure in place in 2005 applies, not the provisions that came into effect with the revised legislation on November 30, 2006.

3The Applicant summarized his complaints into two main issues. He argued that the Society failed to give him an opportunity to be heard as required by section 2(2) (a) of the Act and failed to provide him with reasons for decisions that affected his interests relating to an investigation involving his son that occurred in March and April of 2005 including concerns about the newly assigned intake worker.

4At a hearing on January 12, 2010, the Board issued an oral decision that it had jurisdiction to hear his complaints. Following both testimony by the Applicant and the Society and the introduction of documentary evidence by the Society, the Board reserved its decision on the application. Subsequently, the Board found in favour of the Applicant with respect to his complaints regarding the Society’s failure to provide him with an opportunity to be heard and to provide reasons and ordered the Society to provide written reasons to the Applicant. The reasons for this decision follow.

BACKGROUND

5During an altercation in the Applicant’s home on February […], 2005, the Applicant’s son (“LL”) called 411 and asked for police assistance. The police attended at the home and apprehended the Applicant’s wife, J.L.S., who is now his former wife (“former wife”). On March […], 2005, the Toronto police notified the Society of the apprehension. The Society initiated a child protection investigation and Intake Worker, B.H., was assigned to the file by her supervisor G.D..

6Upon receiving the assignment, Ms. B.H. telephoned the Applicant and suggested that he and his son meet her at the [Hospital] in downtown [City A]. Shortly thereafter, Ms. B.H. interviewed LL at the hospital and approximately one week later interviewed the Applicant in his home.

7Due to an illness suffered by Ms. B.H. and conflicting schedules with the Applicant’s former wife, Ms. B.H. was not able to arrange an interview with her in a timely manner. On or about April […], 2005, Ms. G.D. assigned the file on a temporary basis to Intake Worker G.P.. Shortly thereafter and in Ms. G.D.’s presence, Mr. G.P. interviewed the former wife who was accompanied by her legal counsel. On April […], 2005, Mr. G.P. interviewed LL at his school. No other adults were present for this interview. The Applicant alleged that he had not been notified of Mr. G.P.’s involvement with the file.

8After the interview at school, LL telephoned his father about what he considered as an impostor named Mr. G.P. who had interrogated him. The Applicant telephoned Ms. G.D. to express his dismay and anger with what had happened to his son. Sometime in the next few days, Ms. B.H. returned to work and was surprised to find that the file had been re-assigned. She telephoned the Applicant to discuss this and informed him that she believed there was a conflict of interest for Mr. G.P. with the file as he (Mr. G.P.) likely knew the Applicant’s former wife.

9Subsequent to the telephone call from Ms. B.H., the Applicant telephoned Ms. G.D. to raise his concerns about several matters including the alleged conflict of interest, Mr. G.P.’s attitude and behaviour during the interview with LL and that Mr. G.P. was assigned to the file without his knowledge. Ms. G.D. informed the Applicant that she needed time to investigate the conflict of interest allegation.

10Ms. B.H. subsequently informed the Applicant that his concerns would be discussed via a teleconference on April […], 2005 with herself, the Applicant, Ms. G.D. and Mr. G.P.. Following the teleconference, Ms. G.D. prepared a letter dated April […], 2005 regarding the Society’s child protection investigation. This letter and the Society’s brochure that outlined its complaint process were mailed to the Applicant under cover of a letter dated April […], 2005.

11By Court Order of April […], 2008, custody of LL was awarded to the Applicant’s former wife. Final court proceedings for the Applicant and his former wife were concluded in October 2009 and he applied to the Board on November 20, 2009.

RELEVANT LEGISLATION

12The Board has considered the following legislative provisions in arriving at its decision:

68.1(1) If a complaint in respect of a service sought or received from a society relates to a matter described in subsection (4), the person who sought or received the service may,

(a) decide not to make the complaint to the society under section 68 and make the complaint directly to the Board under this section.

68(13) This section as it read immediately before the day this subsection came into force continues to apply in respect of complaints made to a society before that day and of any reviews requested of the Director before that day.

Section 68(1) as it read prior to November 30, 2006

68(1): A society shall establish a written review procedure, which shall be approved by a Director, for hearing and dealing with complaints by any person regarding services sought or received from the society, and shall make the review procedure available to any person on request.

68.1(4)

The following matters may be reviewed by the Board under this section:

(4) Allegations that the society has failed to comply with clause 2(2)(a).

(5) Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

2 (2) Service providers shall ensure,

(a) that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving.

13The Board also considered the Society’s policy for internal complaints that was in effect in 2005.

Where efforts to resolve complaints are not successful with the service team, the Society has a formal complaint mechanism. Your complaint should be put in writing so that it will be clearly understood. Every effort should be made to resolve the problem with the help of the Branch Director at the office where you receive service. You will be invited to a meeting with the Branch Director and members of the service team.

ANALYSIS

Jurisdiction Decision

14The Board must decide whether the Society’s internal complaints review procedure was engaged prior to November 30, 2006, and if so, whether the transitional provision under subsection 68(13) of the Act applies.

15The Society’s position was that the Board has no jurisdiction to hear this matter as the complaint was made to the Society prior to November 30, 2006, and it dealt with the complaint under the complaints procedure as it existed at that time. The Society argued that the current complaints made by the Applicant to the Board, conflict of interest vis-à-vis Mr. G.P., the unannounced re-assigning of the file to Mr. G.P., and Mr. G.P.’s attitudes and behaviours while interviewing LL are identical to the complaints he made to the Society in April, 2005. The Society further argued that all of these matters were discussed during the teleconference of April […], 2005.

16The Society argued that it had followed its policy for internal complaints as printed in its complaints review brochure that it had provided to the Applicant. The Society had undertaken a teleconference with the Applicant as a first informal step in resolving the matters collaboratively. The Society had reminded the Applicant during the teleconference that if he was not satisfied with the results of this first step he could move forward to the next level of complaint, as outlined in the brochure, by putting his concerns in writing and then being invited to a meeting with the Branch Director. The Society and the Applicant agreed that he did not submit a document that contained a summary of his concerns at that time, nor did he submit any written complaints to anyone until his application to the Board in November 2009.

17During the hearing, the Applicant stated that he erroneously, as he learned much later, understood that he could not apply for a review while he was involved in court proceedings with his former wife. At that time in 2005, he did not understand the difference between being in Court for divorce matters and being in court for child protection proceedings. Thus, he did not submit a written complaint to the Society and as such, could access the current complaint procedure before this Board.

18Section 68(1) as it read prior to November 30, 2006 compelled the Society to establish a written review procedure for hearing and dealing with complaints. In order to engage the old process, a written complaint had to be filed. The Society had such a procedure in place and offered it to the Applicant in April 2005 after the informal collaborative attempts to resolve the issues were completed. The Board finds that the Applicant did not submit written complaints and therefore did not engage the formal complaint procedure.

19For the transitional provision to be applicable to a complaint, the formal written review procedure must be engaged. Although the complaints raised by the Applicant with the Board in November 2009 may have been identical to his complaints as discussed in April 2005, the Society’s formal review procedure was not engaged because he did not complain in writing. The first and only filing of the complaints in writing seeking a review was with the Board in November 2009. The Board finds that the transitional provision of the Act, section 68(13), does not apply. Therefore, the Board dismissed the motion brought by the Society and proceeded to hear the merits of Applicant’s complaint.

Decision on the Merits

20The issue which the Board must determine, as defined in the Pre-Hearing Report dated December 21, 2009, is whether the Society failed to provide the complainant with an opportunity to be heard, as required by section with clause 2(2)(a) of the Act, and failed to provide reasons for decisions that affected his interests related to an investigation involving his son that occurred in March and April 2005, including concerns about the newly assigned intake worker.

a. Society failed to comply with clause 2(2)(a)

21In early April of 2005, the Applicant had several telephone conversations with both Ms. B.H. and Ms. G.D. where he raised his concerns on three separate matters, namely the reassignment of the file from Ms. B.H. to Mr. G.P., Mr. G.P.’s unannounced arrival at school to interview LL at school and his attitude during this interview, and his concern that there was a conflict of interest for Mr. G.P. to work on the file, based on information the Applicant had received from Ms. B.H. that both Mr. G.P. and LL’s mother were known to each other since they were involved in the same community. Ms. G.D. informed the Applicant that she would investigate the conflict allegations. Ms. G.D. arranged for a teleconference with the Applicant, Ms. B.H. and Mr. G.P. to listen to his concerns and Ms. B.H. notified the Applicant of the teleconference.

22The teleconference occurred on April […], 2005. Ms. B.H.’s casenote indicates that some of the Applicant’s concerns were discussed during that teleconference. As well, during the teleconference, the Society offered the Applicant several steps that he could pursue to assist him with his situation vis-a-vis himself, his son and his former wife. The Applicant was also advised that Ms. G.D. would take over the file herself to overcome any alleged difficulties with Mr. G.P. and/or Ms. B.H. handling the file. Ms. G.D. also told the Applicant that her investigation into the allegations of conflict of interest indicated that none existed. The Applicant agreed that during the teleconference, the Society told him that there was no conflict of interest. He conceded that Mr. G.P. may have told him in a telephone message that he was the new worker prior to attending to interview LL. However, he testified that during this teleconference, there was no discussion about the appropriateness of Mr. G.P. interviewing LL at school.

23To determine whether a parent has been heard, it is important to examine the communication between the Society and a parent about the concerns raised. In this situation, the Board finds that the Society did provide the Applicant with an opportunity to be heard to the extent that he was told there was no conflict of interest with Mr. G.P.. However, to simply state there was no conflict without giving a further explanation would leave the Applicant understandably frustrated and with a sense that his concern was just brushed aside and that he was not heard. The Applicant presented all of his concerns to the Society during the teleconference that included himself, two intake workers and their supervisor and he learned that Ms. G.D. followed through on her commitment to investigate the conflict of interest allegations and he was given the result of that investigation. In addition, there is no evidence before this Board which indicates that the Society heard the Applicant’s concern about the appropriateness of Mr. G.P. interviewing his son at school.

b. Society failed to provide reasons for decisions that affect the Applicant’s interests

24As noted above in paragraph [21], the Applicant presented his concerns on three separate matters with the Society during the teleconference of April […], 2005. During the teleconference, he received the verdict on the conflict of interest allegations, first raised by Ms. B.H. from Ms. G.D.. How she reached her conclusion and decided that there was no conflict was not explained to the Applicant at that time.

25On April […], 2005, Ms. G.D. prepared a letter to summarize the results of the Society’s child protection investigation. Under cover of a letter dated April […], 2005, the summary letter was mailed to both the Applicant and his former wife. The letter of April […], 2005 contains no information about any of the Applicant’s concerns as presented during the teleconference. Furthermore, this letter does not provide any explanation or background regarding Ms. G.D.’s investigation of the conflict of interest allegations.

26At the hearing of January 12, 2010, the Applicant informed the Board that he had received no further communication from the Society regarding any of his concerns. The Society did not present documentary evidence to refute this allegation. During the hearing, the Society provided oral explanations to the Applicant for each of his concerns. The Applicant stated that he was hearing all of this information for the first time. Ms. G.D. disagreed with the Applicant about Mr. G.P. being an unknown society worker when he interviewed LL at school. She relied on Mr. G.P.’s casenote as evidence that Mr. G.P. left two telephone messages to this effect for the Applicant when he (Mr. G.P.) was first assigned to the file. The Applicant conceded that he may have heard those messages.

27The Board finds that in 2005, the Society failed to provide the Applicant with reasons for its decision to assign the file to Mr. G.P., Mr. G.P.’s decision to interview LL at school without the presence of an adult, and Ms. G.D.’s decision that there was no conflict of interest with respect to Mr. G.P..

DECISION

28For the reasons stated above, the Board finds that the Society failed to comply with its obligations under clause 2(2)(a) of the Act, with respect to the Applicant’s concerns and did not provide him with reasons for decisions which it made which affected his interests.

29Accordingly, under subsection 68.1(7)(d) of the Act, the Board orders the Society to provide detailed written reasons to the Applicant within fourteen (14) days of the date of the Board’s decision for the following decisions affecting his interests:

(1) Ms. G.D.’s decision to re-assign the file to Mr. G.P.,

(2) Mr. G.P.’s decision to interview LL at school, and

(3) Ms. G.D.’s decision that Mr. G.P. did not have a conflict of interest.

30The Applicant shall have fourteen (14) days after he receives the Society’s written reasons to provide written notification to the Board if he believes the Society has failed to comply with this order. The Board remains seized of this Application until that date.

Denyse Diaz

Presiding Member

Alina Lazor

Panel Member

John Gates

Panel Member