R.T. v. Children’s Aid Society of Brant, 2012 CFSRB 54

CHILD AND FAMILY SERVICES REVIEW BOARD

R.T.

v.

CHILDREN’S AID SOCIETY OF BRANT

REASONS FOR DECISION

Date: December 3, 2012

Citation: 2012 CFSRB 54

Indexed as: R.T. v. Children’s Aid Society of Brant

(CFSA s.68)

INTRODUCTION

1The Applicant filed this Application on March 3, 2012, pursuant to subsection 68.1(4) 4 and 5 of the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended (the “Act”).

2The Applicant alleges that the Children’s Aid Society of Brant (“the Society”) failed to respond to a complaint about services received from the Society in a timely way. He also alleges that the Society failed to provide him with an opportunity to be heard about his services’ concerns or give him reasons for its decisions affecting his interests arising from an improper access to and use of materials in his confidential adoption file by his former spouse, a Society employee. The Applicant first inquired about these matters in 2001 and subsequently made a formal s. 68 complaint to the Society in 2011.

3For the reasons which follow the Application is allowed in part.

JURISDICTION

4The Society challenged the Board’s jurisdiction to deal with this Application on the following grounds:

(a) The Applicant’s 2011 complaint is a continuation of a 2001 complaint and is therefore subject to s. 68(13) and,

(b) The complaint is the subject of another decision making process under the Labour Relations Act and therefore barred pursuant to s. 68.1 (8).

5In March 2001, the Applicant wrote to the Society raising concerns about the security of his confidential adoption file. The Society says this letter was a complaint which remained unresolved because the Applicant did not respond to a request for further information. The Society also alleges that the applicant’s 2011 complaint is a continuation of the 2001 complaint. A copy of the 2001 letter could not be located by either party although the parties were able to provide the Society’s response to it dated March [ ], 2001.

6Section 68(13) of the Act reads as follows:

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.

7Since the Applicant’s letter was not available, the Board cannot determine its precise nature. However, the Society’s March [ ], 2001 response does not refer to the letter as a complaint or reference the s.68 process then in place. The letter states “Your letter of March [ ] was received today. Please be assured that the files in question are now in a separate, secure area used specifically for “sensitive’ files.” This letter indicates that the Society is willing to look further into this issue, and asks a couple of questions of the Applicant, to which the Applicant never responded.

8The Applicant’s 2011 complaint clearly states that he considered that communication to be his first “complaint” to the Society as distinct from his 2001 letter.

I am writing to you once again as a client of your agency this time to register a complaint. It is the second time that I have written to you concerning this issue. The last time I wrote you I asked that you remove my adoption file from your regular filing system. That correspondence was in the early 90’s. I was concerned at the time that your employee, my ex-wife . . . was reviewing my confidential adoption file. You agreed and responded that you had removed my file from your regular records storage. (emphasis added)

9In these circumstances, the Board finds that the 2001 letter was not a complaint because the Society’s own correspondence did not characterise it as such and this is entirely consistent with the Applicant’s understanding of its nature as contained in his December 2011 complaint. The December 2011 letter of complaint cannot then be considered as a continuation of the 2001 letter and consequently section 68(13) does not apply.

10While the Society advised that there had been a meeting between it, the applicant’s ex-wife, and her union representative about this issue raised in the complaint there is no evidence this was the result of or resulted in an arbitration or other decision-making process under the Labour Relations Act. The Society did not pursue this argument in further detail at the hearing. In the circumstances the panel is satisfied there is no basis to conclude this Application is barred by s.68.1(8).

11In conclusion, the Board finds it has jurisdiction to hear the Application.

PRELIMINARY MATTERS

12The Society raised an objection to the admission into evidence of the transcript of the Examination for Discovery of the Applicant’s ex-wife conducted in a civil law suit where the ex-wife and the Applicant are parties. The Society argued that section 30.1.01(3) of the Rules of Civil Procedure applies and that the Applicant cannot use the transcript in the Board’s proceedings as it would be a breach of his undertaking. However, when the evidence has been filed with the Court into evidence or read to or by the Court, the undertaking is no longer applicable. The Board did not have any evidence to confirm that the exception would apply and as such granted the motion and did not admit the transcript.

BACKGROUND

13The Applicant was placed for adoption by the Society and it continues to have custody of his adoption file.

14Spanning a period of some twelve years, including long gaps in his contact with the Society, the Applicant raised with the Society his concerns regarding the confidentiality of his adoption file, received assurances from the Society that his file had been secured, and tried to get explanations as to what actions the Society took in response to his requests and his one letter of complaint.

ANALYSIS

15The main issues for the Board are whether the Society heard the Applicant as required when decisions were made or when he raised service concerns, and whether the Society provided him with explanations relating to the decisions made. The Board’s authority and the Society’s obligations are found in the following sections of the Act:

Matters for Board review

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 the 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.

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.

6. Such other matters as may be prescribed. 2006, c. 5, s. 26.

Review by Board

(5) Upon receipt of a complaint under this section, the Board shall conduct a review of the matter. 2006, c. 5, s. 26.

Application

(6) Subsections 68 (7), (8) and (9) apply with necessary modification to a review of a complaint made under this section. 2006, c. 5, s. 26.

Board decision

(7) After reviewing the 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. 2006, c. 5, s. 26.

Duties of Service Providers

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;

Timeliness of Response to Applicant’s 2011 Complaint

16The Society admitted that it failed to respond to the Applicant’s complaint in a timely manner contrary to the requirements of Ontario Regulation 494/06 which requires the Society to:

. . . determine eligibility within 7 days of receiving a complaint;

if the complaint is determined not eligible, to provide reasons for its decision within 14 days;

if the complaint is eligible the Society must establish an Internal Complaints Review Panel within 14 days.

The Applicant’s Adoption File

17Two main themes emerge when looking at the issues: (1) did the Society hear the applicant with regards to the securing of his adoption file to prevent further breaches of confidentiality, i.e. did the Society act upon this issue, and was he given reasons for the decisions taken; (2) did the Society hear the Applicant with regards to the concerns he expressed in his allegations that his former spouse had accessed the files and copied and used inappropriately sensitive material from the file, and did the Society give the Applicant reasons or explanations about what decisions and actions the Society took on this issue.

The Securing of the Adoption File

18The Applicant wrote a letter dated March [ ], 2001 to the Director of the Society, expressing concerns that his adoption file had been inappropriately accessed, and that the information so obtained was used in an inappropriate manner. The Applicant requested that his file be kept in a secure area, removed from the general adoption files, a procedure which is commonly done in cases involving “sensitive” files. Neither the Applicant nor the Society has a copy of that letter in their respective files. On March [ ], 2001, the Society responded by letter that the files had been secured and access now was restricted to the Executive Director and the Director of Administration. The Society asked the Applicant further questions regarding the file but received no response. The Applicant testified that he did not respond to this letter from the Society since he did not have any further information. In the absence of a response from the Applicant, the Society did not pursue the matter further, but the adoption file from then on was kept in the new secure arrangement.

19The Board finds that the Society did hear the Applicant on the matter of the Applicant’s request for his adoption file to be secured. As well, the Society promptly informed the Applicant of the actions it had taken to secure the adoption file, as requested by the Applicant.

Unauthorized Access and Copying of the Applicant’s Adoption File.

20In her testimony before the Board, the Society’s Director of Services acknowledged that, while the Applicant’s former spouse was an employee of the Society, she had inappropriately accessed the Applicant’s adoption file, had made notes about its contents, and had removed these notes from the Society’s premises. The Board accepts her statement, whereby the Director of Services confirmed the actions by its employee. The Director of Service highlighted in her testimony that these actions were without the Society’s permission or authorization, in violation of the Society’s policies and procedures regarding confidentiality, and that the employee had broken the confidentiality agreement that the she had signed with the Society.

21The Society produced multiple documents (e.g. Policy and Procedure statements, Confidentiality Agreement samples, File Storage procedures, etc) to show it does have procedures to safeguard the confidentiality of adoption files. Yet, despite these procedures it is clear, given the Society’s admission above, the confidentiality of the applicant’s file was breached by his former spouse when she was an employee of the Society.

22In 2010 and 2011, the Applicant corresponded with the Society concerning his suspicions that his former spouse had accessed his adoption file. Even though he did not specifically ask for an investigation at those times, the allegations were raising serious concerns. The Society confirmed that no investigation occurred following the Applicant’s original letter alleging a possible breach of the file security system. It was not until after the Society received his complaint of December 2011 that a proper search of the system documenting access to the files was done, and only after the Applicant had provided the Society with clear evidence that the breach had occurred.

23After the December 2011 formal complaint by the Applicant, the Society verified if the file had been accessed through a review of their records kept when files were accessed. Through this review the Society discovered that the file had been accessed in 1996 by a Society employee. However there is no evidence that the employee was questioned and no questions were asked of the Applicant’s ex-wife to investigate her possible involvement. As well, the Society never asked to meet with the Applicant to hear his side of the story or follow-up with the Applicant to give him the details of their findings.

24The Applicant, not having any response form the Society, had to file a complaint with the Board to get some answers. The Society testified that they were in the process of investigating the matter when the Applicant applied to the Board. Since the time of the Applicant’s complaint to the Society, almost three months had passed.

25The Society at no time prior to this Hearing acknowledged to the Applicant that it gave credibility to his materials as evidence that his suspicions and fears were correct.

26The Board finds that the Society did not hear the Applicant and the concerns he expressed about his former spouse having information that clearly came from the Society’s adoption file of the Applicant. He was not heard because the Society took no proactive steps to look into the alleged breach until 2012. They did not engage in a process of following up on the very serious allegations. They did not give credence to, or even acknowledge receipt of, the written materials that the Applicant had in his possession and which the Applicant had shared with the Society. Being heard entails being responsive to and not minimizing allegations like those made by the Applicant. The right to be heard exists to reassure the person receiving a service from a society that their concerns will be taken seriously, looked into and acted upon where appropriate. This was not done by the Society. There was no genuine communication or follow up with the Applicant and he was not given the opportunity to be a meaningful participant with the potential for some degree of influence on the process.

27In fact, until the hearing, the Applicant had not had any validation from the Society regarding his belief that his file had been accessed, and that the access was by his former spouse. The Society as well did not give any reasons or explanations as to why it did not confirm to the Applicant prior to the November 2, 2012 hearing that the Society believed the Applicant’s position that the file security had been breached, nor when it decided to recognize the accuracy of the Applicant’s allegations.

CONCLUSION

28The matter before this Board concerns the matters which the Applicant had unsuccessfully tried to get the Society to take seriously since 2001. While the Society responded to the Applicant’s 2001 request to secure his adoption file it is indeed regrettable that the Society failed to respond to the rest of the applicant’s concerns when they were brought to its attention. In this respect it breached sections 2(2)a, and 68.1(4) 5 of the Act in that it completely failed to take the opportunity to resolve these issues adequately by responding in a timely way as required by O.Reg. 494/06 to the applicant’s December 2011 complaint.

29Since the Society at the hearing provided the Applicant with confirmation that it has validated his allegation that there was a significant security breach, it becomes unnecessary for the Board to order the Society to provide information to the Applicant on this issue.

30The Board does not wish to conclude without acknowledging how very hurtful and upsetting both the breach of confidentiality and the manner in which the Society responded to him when he raised his concerns was for the Applicant and his extended family. The Board commends the Applicant for his persistence in these very troubling circumstances and expects the Society has learned from this experience and will ensure that a similar situation is never repeated.

CONFIDENTIALITY ORDER

31Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone including the media or on-line. Any documents or information shared by the parties must be used only for the purpose of the hearing of this application by the Board.