LT v. Durham Children's Aid Society, 2019 CFSRB 15

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LT

Applicant

-and-

Durham Children’s Aid Society

Respondent

DECISION

Adjudicator: Catherine Bickley Date: March 22, 2019 Citation: 2019 CFSRB 15 Indexed as: LT v Durham Children's Aid Society

WRITTEN SUBMISSIONS

LT, Applicant

Self-represented

Durham Children’s Aid Society, Respondent

Simon Reis, Counsel

Introduction

1On March 20, 2017, the Applicant filed an Application with the Child and Family Services Review Board (“CFSRB”) under section 68.1 of the Child and Family Services Act, RSO 1990, c.C11, now section 120 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1, (the “Act”).

2The parties reached a settlement of the CFSRB Application at a May 2, 2017 pre-hearing. The Applicant then alleged that the Respondent had not complied with the settlement agreement. On July 19, 2017, the CFSRB ruled that the Respondent was in compliance with the settlement agreement.

3The Respondent now seeks permission from the CFSRB to use documents from the CFSRB proceeding in a Human Rights Tribunal of Ontario (“HRTO”) summary and preliminary hearing. In that proceeding, the Respondent is asking the HRTO to dismiss two applications (Files 2017-30713-I and 2017-30714-I) on the basis that those applications raise the same allegations as those raised and settled in the 2017 CFSRB application.

4The Applicant opposes the use of these documents in the HRTO proceeding. She states that the documents were illegally obtained.

5For the reasons below, I grant the Respondent’s request.

requested documents

6The Respondent seeks an order that it may use and disclose the following documents in the HRTO summary and preliminary hearing:

1. The March 20, 2017 Application filed by the Applicant;
2. The May 2, 2017 settlement agreement between the Applicant and the Respondent;
3. The May 4, 2017 Pre-Hearing Settlement Facilitation Report;
4. May 30, 2017 correspondence from the Respondent to the Applicant answering certain questions in accordance with the settlement agreement;
5. June 1, 2017 submissions from the Applicant alleging a breach of the May 4, 2017 settlement agreement; and,
6. The CFSRB’s July 19, 2017 Reasons for Decision on Compliance.

7The Respondent proposes that it redact the names of the Applicant's children before submitting the documents to the HRTO.

the CFSRB’S confidentiality rules

8Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure govern the confidentiality of documents and decisions in CFSRB proceedings, as follows:

9.3 Subject to an order of the Court or the CFSRB, parties and their representatives shall not use documents or information obtained under these Rules or in the course of the CFSRB's proceeding for any purpose other than the proceeding before the CFSRB.

9.4 All CFSRB decisions are subject to a confidentiality order and may also contain information subject to section 87(8) of the CYFSA, 2017. The CFSRB publishes a redacted version of its decisions. No one shall circulate, reproduce, communicate or publish any information contained in or obtained from an unredacted decision of the CFSRB without first obtaining an order of the CFSRB or the Court.

analysis

9Rule 9 permits use of documents from a CFSRB proceeding only when a court or the CFSRB makes an order permitting such use. The CFSRB does not have a practice direction outlining when it will waive or vary a confidentiality order. Each request will be considered and decided on its particular facts.

10In this case, the Respondent is seeking the dismissal of two applications before the HRTO on the basis that the allegations contained in them have already been dealt with appropriately by the CFSRB. The issue of whether the HRTO applications should be dismissed is being considered through a summary and preliminary hearing.

11The HRTO adjudicator wrote, in a December 7, 2018 Case Assessment Direction:

In order to make a determination on this issue, I would first need to review the materials from the CFSRB. …As such, in order for me to consider the respondent’s argument, the respondent must first obtain an order of the CFSRB or the Court granting permission for the documents to be used in these proceedings.

12The question of whether an application before one administrative tribunal raises allegations that have already been resolved in proceedings before another administrative tribunal is an important one. The HRTO cannot make an informed decision on the issue without reviewing the relevant CFSRB documents.

13With respect to the Applicant’s submissions that the documents were obtained illegally, I note that they are all documents which came into existence as part of a proceeding initiated by the Applicant at the CFSRB.

14For these reasons, I conclude that it is appropriate to vary the CFSRB’s Confidentiality Order to permit the Respondent to use CFSRB documents and decisions in the HRTO proceeding.

order

15For the purpose of the summary and preliminary hearing in HRTO Files 2017-30713-I and 2017-30714-I, the CFSRB’s Confidentiality Order with respect to CFSRB File CA17-0068 is varied as follows:

• The Respondent may use the documents listed in paragraph 6, items 1 to 5, above;
• The Respondent may use an unredacted version of the July 19, 2017 Reasons for Decision on Compliance (item 6 in paragraph 6 above);
• The names of the Applicant’s children and any other children referenced in the documents shall be redacted; and,
• The parties may use an unredacted version of this Decision in the HRTO proceedings.

confidentiality order

16Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions or any other documents or information provided or used in this Application with anyone, including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate. This Confidentiality Order is varied as set out in paragraph 15 above.