S.K. v. Durham Children’s Aid Society, 2013 CFSRB 39

CHILD AND FAMILY SERVICES REVIEW BOARD

S.K.

v.

Durham Children’s Aid Society

REASONS FOR DECISION: WRITTEN REVIEW

Date: August 9, 2013

Citation: 2013 CFSRB 39

Indexed as: S.K. v. Durham Children’s Aid Society (CFSA s.68)

INTRODUCTION

1The Child and Family Services Review Board (the “Board”) received an application made under section 68.1 of the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended, (the “Act”) from the Applicant on July 2, 2013 alleging Durham Children’s Aid Society (the “Society”) failed to provide her with reasons for a decision that affects the Applicant’s interests. The Board received supplementary materials from the Applicant on July 25, 2013.

2The Board has determined that an oral hearing is not required as the Board has sufficient information before it to make its decision based on the written material filed.

3On July 10, 2013, the Board determined that the application was eligible to proceed under subsections 68.1 (4) 5.

4The Board received the Society’s Reply to the application on July 19, 2013. The Society challenged the Board’s jurisdiction to hear this matter, on the basis that the Applicant has no standing to bring the matter before the Board because she had not sought a service from the Society. Furthermore, the Society claims that its decision did not affect the Applicant’s interests and therefore, the application should be dismissed on its merits. Finally, in the alternative, the Society claims it provided reasons for its decision to the Applicant.

ISSUES

5The Board must determine if it has jurisdiction to conduct this review and if so, whether the grounds for complaint are made out by the Applicant. For the reasons that follow, the Board finds that it has jurisdiction to hear the application under s. 68.1 (4) 5.

On the merits of the complaint, the Board finds that the Society has not complied with its obligation to provide the Applicant with reasons for a decision that affects her interests. The Board’s reasons and order follow.

BACKGROUND

6On May 22, 2013, the Applicant contacted the Society and requested disclosure of information relating to her deceased mother who had been a Crown Ward and placed in the Society’s care. The Society initially agreed to process the request subject to the Applicant making the request in writing and providing her mother’s death certificate. The Applicant did as instructed.

7On May 23, 2013, the Records Disclosure Worker informed the Applicant that she had found the requested record, but she had a backlog of requests and also would be absent from work for two weeks. The Worker indicated the request would be put in her “to do” pile and, she hoped, would not take too long to complete.

8Almost a month later, on June 21, 2013, the Records Disclosure Worker sent a letter to the Applicant stating:

I have reviewed your request with my supervisor and I have been advised that if you are seeking information from the file that you would need to bring a motion in court for access to our files. If the court is in agreement, an Order will be made and the Society would then comply with the order and provide the file information.

ANALYSIS

JURISDICTION

Was the Applicant receiving a service from the Society?

9The Board finds that the request for records was a request for services from the Society and the Society’s initial acceptance of the request amounted to the delivery of services to the Applicant.

Were the Applicant’s interests affected by the Society’s decisions?

10The Society’s June 21, 2013 decision not to provide the requested information affected the Applicant’s interests. The Applicant was attempting to obtain information about her parent from the body in whose care she had been placed. The Board is satisfied that the Applicant had a legitimate interest in obtaining the requested records as they pertained to her mother’s childhood and the care provided to her mother by the Society during that period.

11The Board is satisfied it has jurisdiction to deal with the Application.

MERITS

Right to Reasons: s. 68.1(4)5

12Having determined that it has jurisdiction, the issue for the Board is whether the Society provided the Applicant with reasons for its decision to not release the requested records without a court order, after having told her it would do so. The Applicant complains that she was not provided with reasons for the Society’s decision to not provide her with the requested records. The Society says that it did not ignore or deny the Applicant’s request but rather directed her to the appropriate course of action to obtain the materials she requested. The relevant statutory provisions are:

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

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

13The “right to reasons” under the Act, means a right to a meaningful explanation about decisions that affect the applicant’s interests. In J.G. v. Windsor-Essex Children’s Aid Society (CA12-0140, para 13) the Board held that:

With respect to this section of the Act, what constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation. This may include an examination of the timeliness and the level of detail provided. A complainant must be given sufficient information regarding the factors that were taken into account in making the decision to allow him or her to understand why and how the decision was made.

14On May 23, 2013, the Applicant was initially provided with a decision that the requested records would be released to her shortly. Almost a month later, on June 21, 2013, she was informed by letter that she would not be provided with the requested record unless she brought a motion before the court and an order was made for the release of the requested record.

15The Society did not provide the Applicant with any reason, much less a meaningful explanation, why it changed its decision to release the records or why it now took the position a court order was required for their release.

16In its Reply, the Society states that it did not ignore the Applicant’s request or indicate a complete denial, but in fact directed her to the appropriate course of action to obtain the materials she requested. While I agree the Society’s June 21, 2103 letter is not an outright denial of the request, that is not the same thing as providing reasons that would allow the Applicant to understand the Society’s decisions.

17The Society states in its Reply that, “although not clearly stated” in the June 21, 2013 letter, “implicit in any decision to release Society records, are the privacy interests of the individuals named in the file.” The Society states that this fact is why the Society requires a court order to release the information.

18Based on the evidence before it, the Board finds that the Society’s letter did not contain the reasons for its decision and it was not provided to the Applicant in a timely fashion. The Applicant cannot be expected to read between the lines and know that privacy issues are in play or why the decision was changed. The Applicant was given no information regarding the factors that were taken into account in making the decision, in order to allow her to understand why and how the decision was made.

19While the Reply provides some explanation for the Society’s decision, the Board is not satisfied the Applicant has been provided with a meaningful explanation for the Society’s decision.

CONCLUSION

20The Application is allowed.

21The Board orders the Society to provide the Applicant with a letter containing detailed and informative reasons:

A) Why the Society has changed its initial decision to release the requested records to the Applicant and,

B) Why the Society takes the position it requires a court order before it may release the requested records to the Applicant.

22The Society is to provide the Applicant with the letter within 10 days of the date of this decision.

CONFIDENTIALITY ORDER

23Parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings.

24Either party may share this decision with the Court on the disclosure motion if either party wishes to do so.