CY v. Bruce Grey Child and Family Services, 2019 CFSRB 82

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

CY

Applicant

-and-

Bruce Grey Child and Family Services

Respondent

INTERIM DECISION

Adjudicator: Daniel McSweeney

Date: November 27, 2019

Citation: 2019 CFSRB 82

Indexed As: CY v Bruce Grey Child and Family Services (CYFSA s.120)

WRITTEN SUBMISSIONS

CY, Applicant

Self-represented

Bruce Grey Child and Family Services

Charmaine Pette, Supervisor

Introduction

1On August 28, 2019 an Application was filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”).

2The Child and Family Services Review Board (“CFSRB”) found the Application eligible to proceed under sections 120(4)4 and 120(4)5 of the Act.

3The current Application identified the following concerns:

1. Navett Gill and Donna Broga fabricated information about the Applicant

2. Navett Gill and Donna Broga did not properly investigate allegations of emotional abuse of his daughter by the Applicant’s ex-partner

3. The Respondent did not follow-up on new information

4. An Amber Alert was issued against the Applicant without justification

5. Navett Gill and Donna Broga received information protected under the Privacy Act

6. The Respondent did not provide a response regarding issues of interference in the court order, drinking, and concerns with his ex-partner’s family

7. The Applicant’s ex-partner lied to courts and involved his daughter in misleading the court

8. Concerns that someone was reporting to police and to the courts

9. Comments regarding the Applicant’s mental health were not supported or verified

4On September 23, 2019, Bruce Grey Child and Family Services (the Respondent) submitted a letter to the CFSRB requesting that the Application be dismissed as the Applicant was attempting to relitigate issues from his previous Application (CA17-0059) dated February 18, 2017 (the First Application).

5In a Case Management Direction, the CFSRB directed the Applicant to make written submissions to address the following two questions:

1. Have the issues in the current Application already been dealt with by the CFSRB in CA17-0059?

2. Would it be an abuse of process for the CFSRB to permit the current Application to proceed?

6The Applicant provided his responses to the two questions on October 5, 2019. With respect to the first question the Applicant indicated that his issues and past events had not been dealt with by the CFSRB. He went on to accuse staff (Donna Broga, and Navett Gill) of making statements about him without facts to support them and without giving him the right to defend himself, and ignoring information that would prove his point. He indicated that his daughter was not safe with her mother and she was a victim of emotional abuse.

7The Applicant indicated that he wanted staff to be held responsible for their alleged failings with respect to his case.

8With respect to abuse of process, the Applicant indicated that the CFSRB did not address the following: past events; the conduct of Charmaine Pette or Yvonne Lembke, and his safety concerns for his daughter. It would be an abuse of process for the CFSRB to ignore the questionable conduct of workers outlined in the current Application. The Applicant also indicated that Charmaine Pette was in a conflict of interest as she is involved in other proceedings with the Social Justice Tribunal and the Privacy Commission.

9After consideration of all the evidence before it, and for the reasons set out below, I dismiss the Application in part.

the law

10Subsection 120(4) of the Act provides that,

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

4. Allegations that the society has failed to comply with subsection 15(2)

[which provides that “[s]ervice providers shall ensure that children and young persons and their parents have an opportunity 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 failed to provide the complainant with

reasons for a decision that affects the complainant’s interests.

11Subsection 120(8) of the Act states:

The Board shall not conduct a review of a complaint under this section if the subject of the complaint,

a) Is an issue that has been decided by the court or is before the court.

analysis

12As a first step in the analysis, I note that the Respondent had previous involvement with the Applicant; however, there has been no involvement since May of 2014. As such, the Applicant’s interactions with the respondent significantly pre-date the First Application of February 18, 2017.

13Secondly, the Applicant and Respondent participated in a mediation process focusing on issues raised in the First Application. The Applicant alleged that the Respondent was not compliant with the terms of the Settlement Agreement; however, after a February 12, 2019 hearing, the CFSRB found that the Respondent had complied with all the terms of the Settlement Agreement.

14Thirdly, I note that the Applicant’s Second Application, as well as his responses to the CMD, are rambling and lack sufficient detail to allow for a detailed assessment of the facts underpinning his concerns. For example, the Applicant alleges impropriety by Donna Broga and Navett Gill but does not provide specific examples to support his allegations. He cites that these two women received information that was protected under the Privacy Act; however, he does not cite what information, when, and how the two women allegedly received the information, and why it was a breach. The Applicant indicates that the Respondent failed to follow-up on new information; however, he does not indicate what information and how and when this information was passed to the Respondent. Finally, the Applicant does not provide any details which would allow any reader to understand his concerns in issue 6 above.

15I note that the Applicant made allegations that 2 staff members had fabricated information about him (issue 1 above). These allegations were broad and vague in nature. The Applicant has also raised concerns that Respondent staff have not investigated his child protection concerns and did not follow-up when new information was highlighted (issues 2 and 3 above).

16The Respondent has provided evidence (CFSRB Non-Compliance Decision of February 12, 2019) that the issue of the Applicant’s concerns with the Respondent’s investigation of the Applicant’s former spouse was addressed and settled by the terms of the Settlement Agreement. The term addressed the following question: “Why did the Society not get back to the Applicant about the concerns he had expressed to the Society about the care being provided to his child by his ex-partner?”. I note that the wording in this term addresses the Society’s response, and not the response of any particular staff or group of staff members. I take this to mean the actions of all staff members in relation to the Applicant’s concerns were addressed in the Respondent’s response. The Respondent provided the Applicant with a letter which gave reasons for not getting back to the Applicant. Firstly, it was the Applicant’s Probation Officer that was in contact with the Respondent regarding the referral. Secondly, the information was historical in nature. Thirdly, since the respondent was not contacted directly by the Applicant, the Respondent determined that the Applicant was not owed any explanation or contact regarding the investigation, once no child protection issues were verified. In addition, the Respondent indicated that every referral is considered by the Respondent and may or may not lead to a child protection investigation.

17For these reasons, I find the Respondent addressed the Applicant’s concerns related to issues 1 – 3 in its responses to the terms of Settlement Agreement related to his First Application.

18The Respondent provided evidence (CFSRB Non-Compliance Decision) that the issue of allegations of spousal assault and violent behaviours by the Applicant were addressed in its response to the terms of the Settlement Agreement. The Applicant was provided with an explanation for the Respondent’s decision and actions. The Applicant may not agree with the Respondent’s explanation; however, the CFSRB did determine that the Applicant was provided with an adequate explanation for this issue. Furthermore, the CFSRB Non-Compliance Decision indicated that the Freedom of Information and Protection of Privacy Services letter clarifying the issue of assault was placed on the Applicant’s record with the Respondent. As such, I find that the Applicant’s concerns related to issues 1 – 3 in his Application were addressed in the Respondent’s responses to the terms of Settlement Agreement in the First Application.

19The Applicant has identified several concerns regarding information and misinformation being provided to the Court by various parties. The CFSRB cannot deal with any part of this Application which is exclusively within the jurisdiction of the Court. The Applicant did not provide sufficient information in his current Application and his responses to the Case Management Direction to allow me to assess if any of his concerns fall outside the s. 120(8) exception related to issues that have been decided by the Court or are before the Court. In addition, I find the CFSRB complaint process is not the appropriate forum for the Applicant to raise allegations of falsehoods or misstatements presented to the police and to the Court. Such issues are best dealt with by the Court.

20Furthermore, I find that the Applicant has not linked these Court issues clearly with any actions (not having been provided an opportunity to be heard; not being provided adequate reasons) on the part of the Respondent. As such, I find that the CFSRB does not have jurisdiction to consider the court-related issues highlighted in items 6, 7, and 8 above.

21Similarly, I note that the Applicant has concerns regarding Respondent staff receiving information that is protected under the Privacy Act. The Applicant has provided evidence that he is pursuing these concerns with the Privacy Commission. Again, the Applicant did not provide sufficient clarity in his Application for the CFSRB and the Respondent to identify whether his concerns were related to services he received and if he was provided with sufficient reasons for the Respondent’s alleged handling of private information. Again, I find that the most appropriate forum for the Applicant to address alleged breaches of privacy is through the Office of the Information and Privacy Commissioner Ontario (IPC). I also note that, if the alleged privacy breaches impact on the Applicant’s file with the Respondent, the IPC has the jurisdiction to address these concerns after January 1, 2020. As such, I dismiss issue 5 highlighted above.

22The Applicant alleged that an Amber Alert was placed against him without justification. In its Summary Response, the Respondent indicated that the Amber Alert issue was identified in the First Application and was discussed and dealt with as part of the Mediation process. No terms related to this issue were required to be addressed in the Settlement Agreement. The Applicant has not provided the CFSRB with an argument as to why he felt that this issue was not addressed in the first Settlement Agreement process. As such, I find that the Applicant’s complaints about the Amber Alert have been dealt with in the First Application and he is attempting to relitigate this issue with issue 4 in his current Application.

23Finally, I note that the Applicant has expressed concerns that the Respondent has made comments on his mental health without these allegations being verified or supported. I carefully reviewed the materials from the first Application as well as the response from the Respondent. I also reviewed the Terms of Settlement of the First Application and have found that this issue was not addressed. As such, I find that the CFSRB has jurisdiction to address issue 9 highlighted above pursuant to subsections 120(4) 4 and 5 of the Act.

Abuse of Process

24Section 23(1) of the Statutory Powers Procedure Act, RSO 1990. C. S.22, as amended (the “SPPA”), provides that tribunals:

may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

25Although the SPPA does not apply in s.120 applications, s.20.1 of O.Reg 494/06 provides the CFSRB with authority to take steps to prevent an abuse of process. It reads as follows:

In order to provide for the just and expeditious resolution of a proceeding arising from an application requesting a review of a complaint under s.68(5) or 68.1(1) of the Act, the Board may make such orders and give such directions in the proceeding as it considers proper to prevent abuse of its processes.

26The CFSRB is bound by the SJTO Common Rules. Rule A8.1 of the SJTO Common Rules reads as follows:

The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

27The Ontario Court of Appeal considered the common law doctrine of abuse of process in Taylor Made Advertising Ltd. v. Atlific Inc., 2012 ONCA 459 at paras 30 and 32. Relying on the Supreme Court of Canada’s decision in Toronto (City) v. CUPE Local 79, 2003 SCC 63 (CUPE), the Court of Appeal affirmed that the common law doctrine of abuse of process

(…) engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.

In determining whether legal proceedings ought to be dismissed as an abuse of process, the question is whether the proceedings would be “oppressive” or “vexatious" or “unfair to the point that they are contrary to the interest of justice".

28The CFSRB concluded in DP v. Children’s Aid Society of Hamilton (CFSA s. 68), 2017 CFSRB 30 (DP), a decision maker ought not to conclude that the inclusion in an application of allegations that have been previously litigated automatically constitutes an abuse of process. Rather, the decision must engage in a contextual analysis that takes into account all of the relevant factors and balances the interests of the parties in order to arrive at a just outcome overall.

29CUPE establishes that the abuse of process doctrine precludes re-litigation that would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice, while recognizing that fairness may dictate that re-litigation be permitted in certain circumstances: See CUPE, above, at paras. 37 and 52-55.

30The Applicant’s submissions do not address the issues of judicial economy, consistency, finality and the integrity of the administration of justice. Based on my findings above, the current Application represents an attempt to relitigate all but one issue addressed by the CFSRB in his First Application.

31With the exception of one issue (allegations related to the Applicant’s mental health), I find that it would be an abuse of process for the CFSRB to further consider the Applicant’s complaint. While the Applicant’s behaviour does not meet the requirements of being declared a vexatious litigant, the CFSRB may consider this issue related to any future attempts to relitigate the same issues.

NEXT STEPS

32A Case Processing Officer will contact the parties to schedule a pre-hearing/ mediation to address the Respondent’s allegations and concerns related to the Applicant’s mental health.

order

33The Respondent’s request is dismissed in part. The CFSRB will deal with the one issue of Applicant’s alleged mental health. The CFSRB does not have jurisdiction to address the remaining issues as outlined above.

confidentiality order

34Pursuant 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.