MW v. Jewish Family and Child Services, 2020 CFSRB 119

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

MW Applicant

-and-

Jewish Family and Child Services Respondent

DECISION

Adjudicator: Daniel McSweeney Date: December 23, 2020 Citation: 2020 CFSRB 119 Indexed As: MW v Jewish Family and Child Services (CYFSA s.120)

WRITTEN SUBMISSIONS

MW, Applicant Self-Represented

Jewish Family and Child Services, Respondent Haley Gaber-Katz, Counsel

INTRODUCTION/BACKGROUND

1This is an Application filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched.1, (the “Act”).

2The Application was found eligible to proceed under sections 120(4)4 and 120(4)5 of the Act. The allegation is that the Applicant was not given the opportunity to be heard and represented when decisions affecting his interests were made, or a chance to be heard when he raised concerns about the services he is receiving. The Respondent is alleged to have failed to provide the Applicant with reasons for decisions that affected his interests.

3The Applicant is the father of a daughter (“Child”). The complaint alleged the following issues/concerns:

1. The Respondent did not hear the Applicant’s concerns related to the alleged abuse of the Child by her mother; and did not investigate fully his allegations and did not follow-up with the Applicant;
2. The Respondent has been negligent in facilitating, supporting, and abetting the Child’s mother during separation, custody, and access proceedings; through false allegations; and a bias against the Applicant
3. The Respondent’s actions and those of the Child’s mother have alienated the Child from her father and other relatives;
4. The Respondent has not provided explanations regarding its investigation process of alleged abuse against him and the outcome of the investigations (verification decisions);
5. The Applicant was concerned in with the lack of communication and follow-up between Respondent staff and him during investigations;
6. The Applicant was concerned that previous investigations and findings were having a bearing on the current investigation;
7. The Applicant is concerned with inaccuracies in the Respondent records;
8. The Applicant was concerned with alleged breaches of his private information between Respondent workers and his ex-partner; and breaches of private information of his ex-wife and other children;
9. The Applicant was concerned that the Respondent obstructed the disclosure of its records to him; and
10. The Respondent’s actions have resulted in pointless and costly waste of time for the Applicant, lawyers, courts, the OCL, and the Respondent.

4The Respondent argued in its Summary Response that the issue of jurisdiction must be addressed before moving on to the merits of the complaint. The CFSRB does not have jurisdiction to review the complaint as it is barred from reviewing issues that are before the Court pursuant to section 120(8) of the Act. In addition, the Applicant is seeking relief that is unavailable to him under the Act.

5The Applicant has submitted a civil claim in Small Claims Court (SCC) which sets out the exact same facts and issues as in the CFSRB Application with the exception of a payment of $35,000 in the SCC claim.

6The Respondent argued that it is not possible for both claims to proceed simultaneously as they deal with the same issues and events. The Respondent cited T.B. v. Halton Children’s Aid Society 2016 CFSRB 15, in which the CFSRB found that a complaint could not proceed due to a pending civil claim. It is impossible to distinguish between service-related issues in the Applicant’s complaint as the Application is nearly identical to the SCC claim.

7The Respondent was concerned that there is a risk of different findings of fact in the CFSRB proceedings and the SCC proceedings if both matters are heard simultaneously. This would result in an injustice.

8The Respondent has brought a motion to the SCC to dismiss the Applicant’s civil claims for a variety of reasons, including the fact that there are concurrent CFSRB proceedings. No motion date has been set in the SCC and therefore the proceedings are still pending.

9Finally, the Respondent argued that the complaint should be dismissed as the Applicant is seeking relief that is not available under section 120(7) of the Act. The Respondent’s complaint asks for a retraction related to a privacy breach; the retraction of and corrections to some Child Protection Information Network (CPIN) records; addresses the issue of alienation resulting from correspondence sent to the Child’s mother; and requests reimbursement for damages.

10The Respondent included a copy of the Applicant’s SCC claim submitted on November 10, 2020.

11In a Case Management Direction (CMD) dated December 3, 2020, the Applicant was directed to provide written submissions on the CFSRB’s jurisdiction to hear the complaint as per section 120(8) and 120(7) of the Act. The Applicant was asked to refer to the Ontario Court of Appeal decision in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441. The Respondent was also provided with an opportunity to provide additional submissions and supporting documents if it deems it appropriate.

12On December 3, 2020, the Applicant provided the CFSRB with a letter in which he argued that the parties in the CFSRB and SCC were different. The CFSRB Application deals with the Applicant not being given an opportunity to be heard and represented when decisions affecting his interests were made. In addition, the Application argued that the Applicant was not provided with reasons for decisions the Respondent made that affected his interests. The Applicant alleged that the Respondent is denying his right to have his matter heard at all. The Applicant did not address the applicability of Children’s Aid Society of Waterloo v. DD.

13Finally, the Applicant indicated that the Respondent’s counsel should be removed from the file as she works for Legal Aid and the matters involve allegations against Legal Aid; she represents children as a panel member of the Office of the Children’s Lawyer and parental alienation is an issue in the Applicant’s complaint; and she may be called as a witness in Family Court matters.

14The Applicant indicated that the SCC have ceased proceedings because of COVID-19 and that it cannot proceed expeditiously. A trial on this matter will take place sometime in 2022.

15On December 4, 2020, the Applicant sent an e-mail to the CFSRB indicating that the Respondent had sought a stay of the SCC pending the CFSRB’s hearing and decision. The Applicant indicated that both proceedings addressed different issues and involved different parties. He indicated that the Respondent is estopped from blocking his hearing before the CFSRB.

16On December 11, 2020, the Respondent sent a letter to the CFSRB again arguing that the two matters could not proceed at the same time and that the SCC must be dealt with first. In addition, the Respondent argued that there is no conflict of interest with its counsel as the grounds alleged do not amount to a conflict of interest. The CFSRB cannot deal with the Applicant’s allegations against Legal Aid or the Office of the Children’s Lawyer.

17The Applicant provided submissions on December 18, 2020 along with a copy of an Affidavit by Jody Sadinsky of Jewish Family and Child Services presented to the SCC which requested that the Court dismiss the claim with costs. The Applicant maintained that his complaint to the CFSRB and his SCC were distinct as the issues in each are not the same. The Applicant’s complaint focuses on his desire for the CFSRB to review the actions and impact of the Respondent’s in relation to various investigations, and on his access to his daughter.

18The submissions outlined the Applicant’s concerns/issues and put forward arguments and evidence dealing with the merits of the complaint. The Applicant repeated his allegation that the Respondent is denying his right to have his matter heard by the CFSRB and that the Respondent has denied his rights in SCC. The Respondent argued that the CFSRB matter can be heard after the SCC matter is decided; however, at other times it has argued that the SCC matter be stayed until the CFSRB matter can be decided.

19In a letter dated December 18, 2020, the Respondent maintained that the two matters cannot proceed at the same time as the issues in both proceedings are the same. The SCC proceedings should be decided before the CFSRB complaint is reviewed.

THE LAW

20Section 120 (8)(a) of the Act states that:

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

21The Ontario Court of Appeal ruled in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441, that the mere existence of a child protection proceeding does not automatically bar the CFSRB from reviewing a complaint about the services an individual has received from a children’s aid society. In DD the Court found that complaints about how the children’s aid society had handled the temporary placement of the applicant’s children could proceed before the CFSRB. Those complaints “were separate and different from the substantive issues before the court” (para 35).

22Section 120(7) outlines the remedies available to an Applicant in respect to a service complaint:

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.

ANALYSIS

23In analysing the Application, I focused on the CFSRB’s jurisdiction to review the complaint as it relates to section 120(8) of the Act; its jurisdiction to address issues of inaccuracies in records, disclosure of records and breaches in privacy; and the remedies requested by the Applicant taking into account the provisions of section 120(7).

Jurisdiction in Relation to Part X of the Act

24The Applicant’s complaint highlighted issues of inaccuracies in the CPIN record; breaches of privacy; and disclosure of records. I note that these issues are addressed in Part X of the Act. As of January 1, 2020, the Office of the Information and Privacy Commissioner of Ontario is responsible for these issues. As such, the CFSRB does not have the jurisdiction to address issues 7, 8, and 9 in the Applicant’s complaint.

Jurisdiction in Relation to Section 120(8) of the Act

25I turned my mind to whether the CFSRB had jurisdiction to hear a complaint which is also before the SCC.

26Section 120(8) is clear that the CFSRB cannot conduct a review of a complaint if the subject of the complaint is an issue that has been decided by the court or is before the court.

27In this case, the Applicant submitted his complaint to the CFSRB on November 23, 2020. The Applicant’s SCC case was filed previously, on November 10, 2020. The 12 paragraphs of both applications are identical; however, in the SCC filing, the Applicant requests $35,000 in damages. The Applicant appended a background document which includes paragraphs 13 – 53. The same document was appended to his CFSRB complaint with the exception of subsection b) of paragraph 53 in which the Applicant has requested $35,000 for emotional, psychological harm.

28The Applicant argued that both applications differed in that the parties are different, and in the CFSRB complaint he alleges that the Respondent has failed to hear him and has failed to provide reasons for its decisions.

29A plain reading of section 120(8) indicates that the subject of the complaint is an issue that has been decided or is before the Court. The section does not require the parties to be the same. It focuses on whether subject matter and the issues have been or are before the Court.

30I considered whether the subject matter and core issues involved in the Applicant’s complaint to the SCC and the CFSRB were one in the same. Both Applications and supporting documents are worded identically with the exception of a request for monetary damages in the SCC application. The Applicant has presented the same arguments and the same evidence in both Applications which I find equates to similar subject matter and issues.

31I also find that the issues included in the CFSRB complaint are currently before the SCC. The Applicant submitted the SCC matter before his CFSRB complaint. The Applicant indicated that SCC proceedings have been delayed because of COVID, this does not change the fact that his claim is before the Court. I cannot make a finding on the procedural requirements of the SCC and its response to the COVID pandemic.

32I concur with the Applicant that the Respondent has provided two arguments in support of its position of which both cannot stand. It has argued that the CFSRB complaint must be addressed after the SCC matter has been decided. Conversely, the Respondent has asked the SCC to adjourn the matter until the CFSRB complaint has been addressed. My decision in relation to the complaint will resolve this issue, and the Applicant is free to respond to the Respondent’s motions before the SCC as no motion date has been set and the SCC proceedings are pending.

33I considered the Respondent’s argument that the two proceedings cannot occur simultaneously as there is a risk of different findings of fact in each forum. I concur with this line of reasoning and defer to the reasons in T.B. v. Halton Children’s Aid Society (CFSA s. 68). In paragraph 21, the decision states:

In a negligence claim, three elements must be established. First, the plaintiff must establish that the defendant was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant breached this duty by failing to act in a matter consistent with this duty. Third, the plaintiff must prove that she suffered injury or loss as a direct result of the defendant’s breach.

34The decision goes on to indicate in paragraphs 24 and 25 that the CRSRB must decide whether the Respondent heard the Applicant within the meaning of section 68.1(4)4 [now section 120(4)(4)].

The evaluation of whether the Society’s employees listened to the Applicant when she raised concerns and whether the Society’s employees provided her with the opportunity to have some degree of influence in the process involved the examination and finding of facts on the same issues that are to be determined by the Court albeit these findings will lead to different conclusions.

Both the Board and the Court would need to reach conclusions as to what was said to whom at what time, what actions were taken or not as a result of these conversations, etc. Therefore, the Board cannot address these issues under section 68.1(4)4 of the Act.

35The Applicant argued that the issues to be addressed in both proceedings were different. The CFSRB complaint deals with whether the Applicant was heard and whether he was provided with reasons for the Respondent’s actions and decisions, while the SCC case deals with the failure of the Respondent to uphold its duty in relation to its investigations, actions, and verification decisions. He has provided the same evidence and arguments to support both positions and has not provided submissions on the applicability of the T.B. v. Halton Children’s Aid Society decision to his case.

36Having considered all of the evidence before me, I find that the both the CFSRB and SCC applications deal with following similar subjects and issues: the investigation process and Respondent’s verification decisions; the actions of Respondent staff throughout the interaction with the Applicant, including interactions with the Applicant and his ex-wife; the behaviour and attitudes of staff; the impact of any previous child welfare interactions with the Applicant; and the personal and financial impacts of the various child protection investigations on the Applicant. Deciding both applications will require findings of fact relation to these issues.

37The CFSRB defers to the jurisdiction and jurisprudence of higher courts. I am not prepared to place the SCC in a position of having to review findings of fact made by the CFSRB. As such, I find that the Applicant’s SCC proceedings must be completed before the CFSRB considers reviewing his complaint.

38Furthermore, I note that the CFSRB has confidentiality provisions which govern its proceedings (see paragraph 48 below). The Applicant is precluded from discussing or disclosing any evidence, documents, decisions from the CFSRB proceedings in other Court proceedings without a Court Order, or an order by the CFSRB. The SCC does not have the same confidentiality provisions. As such, I find that the confidentiality provisions of the CFSRB may prove an impediment to the SCC proceedings. Therefore, I find that the SCC proceedings should be completed before any potential review of the matter by the CFSRB.

39Given that I have decided that the CFSRB does not have jurisdiction to review the complaint, I do not have to address the Applicant’s request to remove Respondent’s counsel because of a conflict of interest.

40Finally, I note that the Applicant’s complaint focused on issues of access and custody which he indicated have been presented before the Court. In fact, his documents allude to the fact that these issues have been addressed by the Courts on multiple occasions. Most recently, issues have been considered by Justice Spence in an Endorsement dated August 26, 2020. I note that the Respondent has not chosen to argue that the issues in the CRSRB complaint have been addressed in the various Family Court Proceedings. As such, I have not requested submissions and additional documents on this issue. Nevertheless, exclusion based on access and custody proceedings may be raised should the Applicant submit complaints in the future.

41For the reasons outlined above, I find that the CFSRB does not have jurisdiction to review the Applicant’s complaint given that the subject matter of the complaint are issues that are currently before the SCC and therefore fall outside the CFSRB’s jurisdiction as per sections 120(8) of the Act.

42The Applicant is free to re-submit his complaint for consideration by the CFSRB once his SCC matters are disposed of. There is no time restriction on submitting complaints to the CFSRB under section 120 of the Act.

Jurisdiction Related to Requested Remedies

43The Applicant requested remedies under the Libel and Slander Act which include retractions for breach of privacy; redactions or retractions of Respondent records; and reimbursement for damages. The Applicant’s list of remedies also refers to a letter used in court to further alienate the father from his child.

44The CFSRB does not have jurisdiction over the Libel and Slander Act. In the Applicant’s case (complaint pursuant to sections 120(4)4 and 120(4)5 of the Act) the only remedies available to the Applicant per section 120(7) are for the Respondent to provide written reasons for a decision, given that the Applicant has not submitted a complaint to the Respondent under the Internal Complaints Review Panel process.

45The Applicant has not requested further explanations for decisions made by the Respondent in his list of remedies. The CFSRB no longer has jurisdiction over privacy breaches or issues with society records. The CFSRB cannot change a verification decision by a society and cannot award any monetary damages.

46As such, I find that the CFSRB does not have the jurisdiction under section 120(7) of the Act to implement the remedies sought by the Applicant in his complaint.

ORDER

47The Application is dismissed in its entirety for lack of jurisdiction.

CONFIDENTIALITY ORDER

48Pursuant to Rules 9.3 and 9.4 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.