JS v. Windsor-Essex Children's Aid Society, 2017 CFSRB 33

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JS Applicant

-and-

Windsor-Essex Children’s Aid Society Respondent

INTERIM DECISION

Adjudicator: Marisha Roman, John Spekkens and Jennifer Scott Date: December 22, 2017 Citation: 2017 CFSRB 33 Indexed as: JS v. Windsor-Essex Children's Aid Society (CFSA s.68)

APPEARANCES

JS, Applicant Self-represented

Windsor-Essex Children’s Aid Society, Respondent Jack Sullens, Counsel

Introduction

1The applicant filed an Application pursuant to section 68.1(4) of the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended (the “Act”). In the Application, the Applicant complained about the child protection service that he received from the Windsor-Essex Children’s Aid Society (the “Society”). More specifically, he complained about being investigated by the Society for allegations of child abuse and its refusal to provide the Applicant with a copy of its file.

2On June 1, 2017, the Child and Family Services Review Board (the “Board”) held the Application was eligible to continue to the next step of the Board’s process, under sections 68.1(4) 4 and 5 of the Act. The Board advised the Applicant that it could not deal with any complaints about inaccuracies in the Society’s file at that time because the Applicant was required to raise those concerns through the Society’s internal complaint review panel (“ICRP”) process before coming to the Board.

3Following the Board’s eligibility decision, the parties entered into settlement discussions. Those discussions broke down and the parties agreed to proceed to a hearing before the Board.

4On September 21, 2017, the Board conducted a pre-hearing teleconference with the parties. The parties agreed that the central issues before the Board were:

a. Does the Board have jurisdiction to order disclosure of a Society file?

b. If so, does the Board have jurisdiction to review redactions in a Society file that is disclosed?

c. If so, does the Board have jurisdiction to remove the redactions?

5On October 30, 2017, the Board held an in-person preliminary hearing on these three questions.

6At the commencement of the preliminary hearing, the Society conceded the Board’s jurisdiction to order disclosure of a file. It continued to dispute the Board’s jurisdiction to review redactions in the file and order the removal of redactions.

7Although the Society concedes the Board’s jurisdiction to order disclosure of a file, it is necessary to determine this issue because it is inextricably linked to the next two issues.

ANALYSIS

The Statutory Framework

8Under section 68.1(1) of the Act, the Board has the authority to hear complaints from people who have sought or received services from children’s aid societies. “Service” is defined in section 3(1) of the Act as:

(a) a child development service,

(b) a child treatment service,

(c) a child welfare service,

(d) a community support service, or

(e) a youth justice service.

9Children’s aid societies are required to keep records about the services that they provide under section 3(1) of the Act. As such, documents recording the provision of those services are an integral part of the service itself. The Board has determined that a request for file disclosure is part of the service relationship between an applicant and a children’s aid society. See ST v. Children’s Aid Society of Toronto, 2013 CFSRB 52 at para. 16.

10Although service includes the records kept by a children’s aid society, the Board does not have jurisdiction to hear a stand-alone service complaint involving the failure to provide disclosure of a file. In order for the Board to have jurisdiction to hear a service-related complaint, it must fit within one of the complaints enumerated in section 68.1(4).

11Most of the complaints received by the Board involve complaints from parents who have received child protection services from children’s aid societies. The majority of these complaints fall under sections 68.1(4) 4 and 5, reproduced below:

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):

2(2)(a) Service providers shall ensure,

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 …

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

12In PO v. Family and Children’s Services Niagara, 2012 CFSRB 38 at paras. 14-15, the Board described the purpose of sections 68.1(4)4 and 5 as follows:

The obligations under s. 68.1(4)4 and 5 reflect the importance of active participation for parents, providing them with the opportunity to have some degree of influence in the process. This is facilitated through genuine communication, giving applicants the opportunity to have input into decision making and to have enough information to make informed responses to, or accept decisions.

To be heard involves active listening, discussions, the society’s taking steps to address the Applicant’s concerns and communicating this to her so that she feels that her concerns are taken seriously and dealt with thoroughly.

13The right to reasons under the Act means a right to a meaningful explanation about decisions that affect the applicant’s interests. In JG v. Windsor-Essex Children’s Aid Society, 2013 CFSRB 8 at para. 13, the Board held that:

With respect to s. 68.1(4) 5, 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 parent 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.

14The issue of file disclosure must be determined having regard to the purpose of the complaints provisions in sections 68.1(4)4 and 5.

Board’s Jurisdiction to Order File Disclosure

15It is well established that individuals whose rights, privileges or interests are to be affected by an administrative decision-making process must be afforded a fair hearing that adheres to the principles of natural justice and procedural fairness. A fair hearing may include: the right to be given notice of a potential decision, the right to receive disclosure, the right to participate in a hearing, the right to make submissions and the right to be given written reasons for a decision. See AH v. Kawartha-Haliburton Children’s Aid Society, 2014 CFSRB 62 at para. 30.

16While the Statutory Powers Procedure Act does not apply to section 68/68.1 applications (see sections 68(9) and 68.1(6) of the Act), the Board is still obligated to have a fair process under the common law.

17As conceded by the Society, the Board has jurisdiction to order file disclosure. File disclosure is required in order to ensure that an applicant can engage in the Board’s complaints process in a meaningful way: it is a central component of a fair and transparent process before the Board. For example, an applicant may complain that they were not given reasons as to why their children were removed by a children’s aid society. While the applicant may have limited information as to why the removal decision was made, the society is in possession of all of the information as to why the children were removed. The unequal access to information creates a fundamental unfairness in the complaints process before the Board. See AH v. Kawartha-Haliburton Children’s Aid Society, above, at paras. 69 and 72.

18That said, the right to file disclosure is not unlimited. The Board’s jurisprudence is clear that a children’s aid society has the right to redact identifying information to protect the privacy of others and to redact other information in the file that may be privileged. See JS v. Sarnia-Lambton Children’s Aid Society, 2014 CFRSB 73 at para. 43.

19The question before the Board in all cases is whether a society has provided sufficient file disclosure to enable the applicant to participate in the Board’s process in a meaningful way. This means an applicant must be provided with sufficient information to enable them to make out the complaint and to respond to the case put forward by the children’s aid society. The extent of the disclosure required will depend on the nature of the complaints being alleged.

20In order to provide sufficient disclosure to ensure meaningful participation in the Board’s process, a children’s aid society file must be minimally redacted and the reasons for the redactions must be explained to an applicant. In addition, a children’s aid society must provide an applicant with its disclosure policy so that an applicant understands why certain information has been redacted. It is important for an applicant to understand that redactions have been made on a principled and rational basis in accordance with a disclosure policy.

21An applicant is entitled to see a society’s disclosure policy because they are entitled to know the categories of information that are redacted and to challenge those redactions. This does not mean that the Board is reviewing or going behind the children’s aid society disclosure policy. It is not the role of the Board to sit in review of society policies. The only role for the Board is to determine whether the extent of the redactions interferes with a fair process before the Board.

22If an applicant believes that he or she cannot participate in the Board’s process in a meaningful way because of the extent of the redactions made by a society, the applicant can raise that with the Board. The Board will hear the parties’ submission on whether the removal of some or all of the redactions is necessary for a fair hearing. It may be that some of the information that has been redacted, solicitor and client communications for example, is not required for an applicant to have a fair hearing. In some circumstances, the Board may have to review the unredacted file in order to make a determination as to whether the removal of certain redactions is necessary for a fair process. In our view, the jurisdiction to review redactions in the file and remove redactions, if necessary, goes hand in hand with the right to order file disclosure. To hold otherwise would significantly impede the Board’s ability to ensure a fair process.

23In conclusion, the Board has jurisdiction to order file disclosure to ensure a fair complaints process. It also has the jurisdiction to review redactions in a file and order their removal if necessary to a fair process.

24If, after receiving disclosure of the file, an applicant believes there are inaccuracies in the file, the applicant must proceed to the ICRP before coming to the Board with a new complaint.

next steps

25The purpose of this hearing was to answer the three questions posed by the parties. The Board has answered in the affirmative to all three questions.

26The applicant has received disclosure of his file. There are redactions in the file. The applicant has received an explanation for the redactions. He has also received a copy of the Society’s Disclosure Policy.

27The Board will conduct a teleconference with the parties to determine next steps. The Case Processing Officer will be in touch with the parties to obtain their availability to attend that teleconference.

confidentiality order

28Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties 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, except with an order of the Court or the Board, as appropriate.