DO v Children’s Aid Society of the Districts of Sudbury and Manitoulin, 2020 CFSRB 35

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

DO

Applicant

-and-

Children’s Aid Society of the Districts of Sudbury and Manitoulin

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: April 16, 2020

Citation: 2020 CFSRB 35

Indexed As: DO v Children’s Aid Society of the Districts of Sudbury and Manitoulin (CYFSA s.120)

WRITTEN SUBMISSIONS

Children’s Aid Society of the Districts of Sudbury and Manitoulin, Respondent

Dawn Dubois, Counsel

Introduction AND 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”).

2On September 6, 2019, the Applicant filed an Application dealing with his lack of access to his two children, and communication concerns with the Respondent.

3In correspondence from October through December 2019 between the CFSRB and the Applicant’s counsel, attempts were made to clarify wither the issues in the Application had been resolved and, if not, when a date could be set for a Pre-Hearing/ Mediation.

4In a Case Management Direction (CMD) dated December 30, 2019, the Applicant was directed to confirm in writing whether her intended to proceed with his Application by January 7, 2020. The CMD indicated that, if the Applicant did not want to proceed, the file would be closed. The CFSRB did not hear back from the Applicant.

5In a subsequent CMD dated February 7, 2020, the Applicant was directed to provide written confirmation to the CFSRB and the Respondent indicating whether he intended to pursue his Application. The Applicant was directed to provide this confirmation on or before Friday, February 14, 2020. In addition, the Applicant was asked to identify 3 dates between March 2 and 13 when he would be available to attend a full day Pre-Hearing/Mediation. Responses were due on or before Friday, February 21, 2020.

6In a letter dated February 11, 2020, the Respondent indicated that it had not received any communication from the Applicant regarding the December 30, 2019 and February 7, 2020 CMDs. The Respondent indicated that it was concerned with the delay as the matter was outstanding since September of 2019. On February 18, 2020, the Respondent further indicated that it had not heard from the Applicant. The Respondent asked the CFSRB to confirm whether it would be concluding the matter.

the law

7CFSRB Rule A3.1 indicates that: “The rules and procedures of the tribunal shall be liberally and purposively interpreted and applied to: a. promote the fair, just and expeditious resolution of disputes.”

8Rule A7 indicates that: “All persons participating before or communicating with the tribunal must act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceeding.”

9Rule A8.1 indicates that: “The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent the abuse of its processes.”

10Rule 23.2 directs the CFSRB to schedule a pre-hearing as soon as possible and, in any event, no later than 40 days after determining eligibility. Rule 24.1 directs the CFSRB to begin a hearing within 60 days of determining eligibility.

11Workers’ Compensation Board v. Figliola 2011 SCC 52 provides direction to administrative tribunals in relation to fairness issues and finality in decision-making:

That means that the Tribunal should be guided less by precise doctrinal catechism and more by the goals of the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them.

analysis

12In my view, to proceed to hear this Application would be an abuse of the CFSRB’s processes for several reasons.

13Firstly, the CFSRB finds that the Applicant, and/or his counsel have not communicated with the CFSRB despite being directed to in 2 CMDs. A review of the communication log between the Applicant and the CFSRB indicated that there has been no written or verbal communication between the Applicant and the CFSRB in 2020.

14The Applicant was directed on two occasions to indicate his intention to pursue the Applicant. He failed to do so. He failed to provide an explanation for why he was unable to do so, despite being represented by counsel.

15The CFSRB finds that the Applicant’s failure to communicate with the CFSRB after being directed amounts to an abuse of process in that the Applicant and/or his counsel have not acted in good faith with the CFSRB and the Respondent.

16In addition, the CFSRB finds that the Applicant’s failure to indicate his intention to pursue the Application, and his failure to identify Pre-Hearing/Mediation dates represents an undue delay in the proceedings. The last communication that the CFSRB had with the Applicant regarding scheduling was an e-mail from the Applicant’s counsel’s office on December 23, 2019. The e-mail indicated that counsel did not have any dates available in early January of 2020. The Applicant was last asked to indicate his intention to pursue his application on or before February 14, 2020, and to provide availability for a Pre-Hearing/Mediation on or before February 21, 2020.

17In this case, the Application was found to be eligible on September 11, 2019. It is now over 7 months after the Application was deemed eligible. The CFSRB is cognizant that the Government of Ontario issued Emergency Order (O.Reg. 73/20) on March 26, 2020. This Order suspended limitation periods and procedural time periods relevant to tribunal proceedings and was retroactive to March 16, 2020. The CFSRB notes that the Applicant failed to respond to deadlines set for February 21, 2020 which was one month before the effective date of the Emergency Order. The significant delay in moving forward with the Application predated the issuance of the Emergency Order.

18The CFSRB finds that the failure to respond to two requests to indicate his intention to pursue his claim and to provide dates to the CFSRB for a pre-hearing/mediation by the February deadline amounted to an abuse of process as this behaviour prevented the CFSRB’s from meeting its requirement and standard to begin a hearing within 60 days of an eligibility determination.

19In addition, it prevented the CFSRB from resolving the matter in an expeditious manner.

20Finally, as per Workers’ Compensation Board v. Figliola cited above, the CFSRB finds that all parties, including the Respondent are subject to the goals of fairness and finality. By unduly delaying the proceedings, the CFSRB finds that the Applicant has denied the Respondent finality in relation to his complaint.

21For the reasons outlined above, the CFSRB finds that the Applicant’s behaviour has amounted to an abuse of process.

ORDER

22The Application is dismissed as an abuse of process.

confidentiality order

23Pursuant 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.