LM v. Children’s Aid Society of Hamilton, 2020 CFSRB 24

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LM

Applicant

-and-

Children’s Aid Society of Hamilton

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: March 18, 2020

Citation: 2020 CFSRB 24

Indexed As: LM v Children’s Aid Society of Hamilton (CYFSA s.120)

APPEARANCES

LM, Applicant

Paul Marshall, Counsel

Children’s Aid Society of Hamilton, Respondent

Treena Watts, Counsel

Corine MacDonald, Adoption Worker

INTRODUCTION

1The Applicant and the Children’s Aid Society of Hamilton (the “Society”) entered into a Settlement Agreement (the “Agreement”) during a mediation held on December 16, 2019, providing for a full settlement of all issues raised in the Application, received on November 5, 2019, by the Child and Family Services Review Board (the “CFSRB”).

2The Agreement contained 9 Terms, 7 of which were actions that the Society would engage in related to the Applicant’s request for disclosure. The parties agreed to an implementation date of January 31, 2020, and a non-compliance date of February 7, 2020.

3The Society sent the Applicant a letter which contained its responses to the Agreement on January 31, 2020. The Applicant sent an e-mail alleging non-compliance on February 6, 2020. She alleged that the Society has not disclosed the information she requested and raised several concerns with the redactions and document indices provided. The Society subsequently sent a letter to the Applicant on February 18, 2020 with further explanations.

4The Applicant retained counsel Paul Marshall to represent her in the non-compliance teleconference.

5In accordance with the CFSRB’s procedures, when there is an allegation of non-compliance, the CFSRB will hold a hearing by teleconference (the “Teleconference”) to determine whether the Society has complied with the Agreement. This Teleconference occurred on March 13, 2020.

DECISION

6After reviewing the materials submitted by the parties, and hearing their arguments, I find that the Society has met its commitments and obligations as set out in the Agreement and as required by the Child, Youth and Family Services Act, 2017 S.O. 2017, Chapter 14, Schedule 1 (the “Act”). The reasons for this finding follow.

ANALYSIS

The Law

7The CFSRB found the Application to be eligible for review under section 120 of the Act. The Act outlines the rights of Applicants, the duties and obligations of Children’s Aid Societies, and the mandate of the CFSRB.

8Section 120(4) of the Act reads as follows:

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

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 119(1) as required under subsection 119(2).

2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.

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

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

6. Such other matters as may be prescribed.

Subsection 120(7) indicates that: After reviewing the complaint, the Board may,

(d) order the society to provide written reasons for a decision to a complainant

(e) dismiss the complaint

9The Act does not require or permit the CFSRB to make a determination as to the clinical wisdom or validity of a decision made by a Society in any given situation under review by the CFSRB and for which the Society is giving its reasons under this section of the Act.

10In an allegation of non-compliance, an Applicant’s statement of disagreement or dissatisfaction with the reasons given by the Society does not negate or invalidate those reasons.

The Teleconference

11At the start of the teleconference, I asked if there were any preliminary matters to discuss. Counsel for the Applicant indicated that the Applicant retained him to obtain unredacted records and permit unrestricted use of the records by the Applicant. He indicated that he would be filing a motion with the Court. I explained that the non-compliance teleconference focused solely on the Agreement and whether the Society has fulfilled its duties in relation to the Agreement. After a brief period of consultation, the Applicant and counsel agreed to continue with the call.

Terms of the Agreement

Term 1: The Society will upload the file again from microfiche, and provide a redacted copy of it, and any court orders which it contains.

12The Applicant argued that the Society had not disclosed all copies of the file, and that some records were missing such as medical files, correspondence, and her mother’s file etc. She based this argument on the appearance and quality of the newly uploaded records, and the number of records she received. She also indicated that the Society had transposed its responses to Terms 1 and 7.

13The Society indicated that it had searched for and uploaded all records that it had on its microfiche system and disclosed all records to the Applicant. The Society explained that some records provided to the Applicant may cite or mention other documents (correspondence, medical records); however, given the age of the file and historical record keeping deficiencies, these records may not have been retained in the file and placed on the microfiche record.

14The letter of January 31, 2020 explained the restrictions on disclosing non-identifying information. It indicated that the names of foster parents and personal information about them; and the medical records and adoption orders for the Applicant’s siblings had been redacted. The order placing the Applicant in Society care and the Applicant’s adoption order were provided to the Applicant.

15The Society explained that some additional records were found in January, although some of these were withheld or redacted.

16I find that the Society made all reasonable efforts to search its databases and to provide the Applicant with full disclosure. For example, as outlined below, the Society engaged staff from the Court House to search for documents through Archives Ontario. There is no evidence before me that the Society engaged in a process of purposefully hiding or refusing to disclose records. In fact, the Society has cooperated with the Applicant to provide her with records and has explained its reasoning for redactions and for withholding any records.

17The January 31, 2020 response, a letter of January 31, 2020, and the February 18, 2020 clarification letter sent to the Applicant clearly explained to the Applicant the processes used by the Society to search for, download, and redact the records.

18For these reasons, I find the Society provided a reasonable explanation regarding its search for documents (see Term 7 analysis for additional analysis), and for the documents which it disclosed to the Applicant. I find that the Society was diligent in searching its databases for records and provided the Applicant with all her records that were available in the file. I therefore find that the Society has complied with Term 1 of the Agreement.

Term 2: The Society will review the file to verify the statement in the Summary as highlighted by the Applicant.

19The Applicant indicated that this Term related to the Society obscuring the text of the December 2019 disclosure through redactions that the Applicant could not tell what was being redacted.

20The Society indicated that Term 2 was not challenged in the Applicant’s non-compliance e-mail. This issue was discussed at length during the Settlement Facilitation in December. The Society explained that the previous redaction program it used would white out sections that were redacted. As such, a reader could not identify what sections on a page were redacted and simply white space on a page where no test existed. The current redaction program used by the Society places a black text box over reactions, making it easier for readers to identify exactly where a redaction took place.

21The Society also indicated that the Statement was disclosed at p. 145 of the materials provided to the Applicant.

22I find that the Society has provided a reasonable explanation for the appearance of redactions in documents disclosed by the Society and has disclosed the Statement as identified in the Term. As such, the Society complied with this Term.

Term 3: The Society will create an index of records with page numbers, including what records have been withheld and the reasons for any redactions.

23The Applicant indicated that the reasons provided for the redactions were unsatisfactory as they did not cite the sections of legislation that governed the reason for each redaction. She indicated that the Information and Privacy Commission went to great lengths to index records and to cite the legislation used to justify the redactions. The Applicant expected a similar index so that she could appeal or challenge the Society’s decision to redact; and she could communicate with the Society regarding specific records. The Applicant also indicated that there was a difference between personal information and non-identifying information. The Applicant indicated that she needed the medical records of her family members as she and her niece have medical concerns that may have a genetic component.

24The Applicant indicated that the original index (December 2019) listed medical records; however, no medical records were provided. The Applicant was also concerned that the Society did not redact information pertaining to her mother and 2 siblings; however, information relating to others known to her was redacted.

25The Applicant indicated that the first 20 pages she received looked like the they came from the original file. She also expressed concerns regarding the appearance of the redactions and that redactions had been concealed by the Society.

26The Society explained that the irregularities in the index of the December 2019 disclosure were corrected and a new index was provided in the January 2020 index. For example, the listing of medical records for the Applicant’s siblings in the December 2019 index was an error. These were not records that could be disclosed to the Applicant, as such, they were removed from the January 2020 index.

27The Society responded that the index of records contains a general explanation for any redactions that were made. The Agreement did not indicate that the Society had to cite the legislation under which each redaction was made.

28The letter of February 18, 2020 explained that the Society made certain exceptions (voluntary) in redactions as the Applicant had knowledge of the identity of her parents and siblings. Records that contained the personal information of foster parents or other personal information were redacted. The Applicant explained that there was information for other individuals she knew of that was redacted. The Society explained that the disclosure of information related to the Applicant’s parents and siblings was voluntary. In addition, the Society did not have a list of all the persons that the Applicant would be aware of when it completed its redactions.

29In relation to alleged inconsistencies in the redactions, the Society noted that this could be explained by the quality of the paper or the quality of the record on microfiche. I find this a reasonable explanation.

30I note that the Society voluntarily chose not to redact some personal information regarding the Applicant’s parents and siblings as the Applicant was aware of them. I find the Applicant’s displeasure related to why the Society did not leave in information for all persons known to the Applicant not to be reasonable. The letter of January 30, 2020 explained that an exception was made. I find that this was done at the discretion of the Society, and the Applicant has not provided evidence that there is anything in legislation or regulations that compels the Society to exercise its discretion. It is unreasonable to criticize the Society for providing more information than required to the Applicant.

31The Applicant seems to have alleged that the Society was concealing records by using redaction software. The Applicant could only describe her concerns regarding the redactions of the first 20 pages as “feathery”; however, other than this observation, she did not provide any hard evidence to support her concerns regarding redaction. The Applicant does not have expertise in examining documents for appearance and quality. As such, I can place no weight on her subjective opinions related to the differences in the documents disclosed to her in December and those in January. In addition, I find the Society has been forthcoming in providing the Applicant all the records she is eligible to receive and therefore I do not have evidence before me that the Society has an interest in concealing or withholding any records from the Applicant.

32I find the Society provided broad reasons for the redactions in the revised index. For example, it indicated: “the adoptive applicants’ personal information has been redacted; the foster parents’ personal information has been redacted; has been redacted as it pertains to Linda’s adoptive sibling’s placement and transition on adoption probation”. I find the explanations to be self-explanatory and reasonable. I also note that the Agreement did not specify that the Society had to cite legislation underpinning each of its redactions. As such, the Society was not in breach of the Term by providing a broad reasoning for each redaction.

33For these reasons, I find that the Society has complied completely with Term 3.

Term 4: The Applicant will submit questions regarding redactions as they arise, and the Society will provide answers.

34This Term was ambiguous.

35The Applicant indicated that she could not have known what questions to raise before she was provided with the records.

36The Society indicated that it was their understanding that the Term meant that the Applicant could ask questions regarding documents disclosed on December 16, 2019 as they arose. This Term did not relate to the January 2020 disclosure.

37I find that there was not a meeting of the minds regarding this Term. Both parties understood it differently. As such, I cannot find that the Society has not complied with the Term.

Term 5: The Society will provide copies of any policies and/or standard practices if they exist re: providing information about the process of handling disclosure requests on behalf of another person.

38This term was not contested in the non-compliance e-mail. An explanation was provided to the Applicant during the mediation. The Applicant indicated that providing copies of the policies and practices does not assist in meeting her objectives from the complaint process.

39In its January 31, 2020 letter, the Society explained that it does not have a specific written policy regarding the handling of disclosure requests submitted by someone on behalf of the person seeking disclosure. The Society is cautious about corresponding with anyone other than legal counsel regarding its involvement with an individual. These issues are dealt with on a case by case basis.

40I find that the Society complied with this Term through the discussion and explanation provided at the Settlement Facilitation of December 2019 and its letter of January 31, 2020.

Term 6: The Society will provide copies of correspondence with the court (Hamilton Family Court) regarding obtaining records from Archives Ontario.

41The Applicant indicated that the Society misrepresented the fact that it was working with the Archives of Ontario on seeking documents. The Society cannot obtain records from the Archives of Ontario.

42The Society indicated that the Applicant did not raise this as an issue in her non-compliance e-mail. The Applicant was provided with evidence in the Society’s January 31, 2020 response of its efforts to obtain legal records e.g. e-mail correspondence and discussions between staff and officials from the Hamilton Court House on how to get records from Archives Ontario.

43Counsel for the Society indicated that she has received notice that Archives Ontario has located a record. The Society has prepared a cheque to pay for the record and it will be forwarded to the Society. The Society does not know the contents of the record; however, it is willing to share this record with the Applicant.

44I find that the Society provided evidence in its January disclosure of its efforts to work with Court House staff to obtain records through Archives Ontario. As such, I find that it has complied with Term 6 in the Agreement.

Term 7: The Society will search all legacy systems to determine if there are any further records for the Applicant.

45Issues in Terms 1 and 7 overlapped.

46The Applicant alleged that the Society had not disclosed all documents it has in the file. In addition, she noted that some of the Society’s responses for Term 7 should have been responded to under Term 1.

47The Society indicated that it has searched its 2 record systems (microfiche and Synergize). Information that is located on microfiche is uploaded to Synergize. Synergize also has copies of scanned paper documents. Both these systems were searched on December 2019. No additional records were located on microfiche. Some additional records regarding 2 of the Applicant’s siblings were located on CPIN through the Guelph Wellington Children’s Aid Society. No additional records for the Applicant were found on CPIN.

48As explained above, I find that the Applicant has not provided a reasonable argument to support her suspicion that the Society is withholding her records. In fact, the Society has worked to disclose as many records as possible. From the non-compliance hearing, it is clear that the Applicant refuses to acknowledge that the records she is seeking may not exist due to the passage of time (1950s - 1960s) and to shoddy record keeping or archiving practices in the past. I find that the Society has made reasonable attempts to search its microfiches; the Synergize and CPIN databases. These searches have identified records that have been disclosed to the Applicant.

49I placed no weight on the Applicant’s concerns regarding whether or not a response was provided under Term 1 or Term 7. The goal of the non-compliance teleconference was to ascertain whether the Society responded to the Terms of the Agreement. Whether the response comes in Term 1 or Term 7 is irrelevant as the Society provided an adequate response to the contents of both Terms.

50For the reasons outlined above, I find that the Society has responded fully to this Term.

Term 8: The Applicant will put in writing a request for a copy of her biological mother’s file.

51This Term related to actions required on the part of the Applicant and therefore the Society is not responsible for complying with this term other than receiving a request. The Society received the request and denied it as it was not a proper adoption disclosure request and therefore the Applicant was not entitled to the information under adoption disclosure regulations.

52Given that the Term related to actions that were taken by the Applicant, I find that this Term does not raise any issues of non-compliance by the Society.

Term 9: The Society will copy Evan C. with any correspondence to the Applicant moving forward.

53The Applicant alleged that the Society breached this Term as it did not ensure that correspondence was received by Evan C. by the compliance date. In addition, Evan C. did not receive letters that were sent to the Applicant in February. The Society indicated that it had provided Evan C. with its response, and that the correspondence in February were not part of the Applicant’s CFSRB Application and therefore the correspondence was not subject to the Terms of the Agreement.

54I find that the Term indicated that it would copy Evan C.; however, it did not state that he had to be provided the document by the compliance date. Evan C. was mailed the Society’s response. In addition, while the wording of the Term was ambiguous, it is only reasonable to assume that the Term related to the content of the Application, and not all future correspondence.

55For these reasons, I find that the Society has complied fully with this Term.

ORDER

56For the reasons given, I find the Society has met its obligations to provide reasons and explanations for its decisions in accordance with the Agreement and as required under the Act. As such, the allegations of non-compliance are dismissed and the CFSRB’s file is closed as settled.

CONFIDENTIALITY ORDER

57Pursuant 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.