RLB v. Kina Gbezhgomi Child & Family Services, 2020 CanLII 89117

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

RLB

Applicant

-and-

Kina Gbezhgomi Child & Family Services

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: May 07, 2020

Citation: 2020 CFSRB 43

Indexed As: RLB v Kina Gbezhgomi Child & Family Services (CYFSA s.120)

Introduction AND BACKGROUND

1The Applicant filed an Application on March 1, 2019, pursuant to sections 120 (4)(4) and 120(4)(5) of the Child, Youth and Family Services Act, 2017, S.O. 2017, C. 14, Schedule 1 (the “Act”), where she complained about the services the Respondent provided to her. More specifically, the Applicant complained that the Respondent did not listen to her concerns and did not provide her with reason for decisions it made.

2The Michipicoten First Nation indicated that it would participate in the proceedings.

3The parties did not settle during a pre-hearing/mediation on April 11, 2019. The Pre-Hearing Mediation Report:

• Set a hearing date for May 23, 2019 in Sudbury.

• Directed parties to disclose all arguable relevant material to each other on or before April 23, 2019 and confirm in writing to the CFSRB that they have done so.

• Directed the parties to file one copy of the documents they intend to rely upon at the hearing (including affidavits) along with witness statements to the CFSRB and each other on or before May 9, 2019.

• Directed parties to advise each other and the CFSRB whether they intended to cross-examine on the affidavits.

• Identified the following witnesses:

  Applicant Witnesses Applicant Debbie Lemieux, Child Advocate Barb Garin, Access Worker (by affidavit)

  Respondent Witnesses Kora-Lyn Paulin, Child Wellbeing Worker Kayla Rankin, Child in Care Worker Tiffany Pollock, Child in Care Worker Tracey Houle, Supervisor, Child in Care (by affidavit)

4The Pre-Hearing Report clarified the issues that will be addressed in a hearing as follows:

• The Respondent has not heard the Applicant’s concerns about her son’s well-being in his placement in Peterborough;
• The Respondent has not heard the Applicant’s concerns about her three children being in three separate foster homes and has not given her meaningful reasons for its decision to place the children separately;
• The Respondent has not heard the Applicant’s concerns that her worker is biased in favour of her ex-partner;
• The Respondent has not supported financially the Applicant’s father travelling to Peterborough to visit his grandson;
• The Respondent has not kept the Applicant informed about events in her children’s lives such as getting haircuts or starting to wear glasses;
• The Respondent has not given the Applicant meaningful reasons for its decision not to place the three children with her father;
• The Respondent has not responded promptly to the Applicant’s telephone calls; and,
• The Respondent has not disclosed the Applicant’s file to her.

5A subsequent Case Management Direction (CMD) of May 24, 2019 directed the following:

• The Applicant’s oral testimony and any documents to be submitted into evidence should focus on whether the Society heard the complaints outlined in the Pre-Hearing Report and whether the Society provided reasons for decisions that it made.
• The Applicant is expected to provide information only for the period of November 14, 2018 to March 1, 2019 on the following: the Society staff she spoke with about each of the complaints within that timeframe; the dates or approximate dates when she spoke with Society staff within that timeframe; what responses she received from the Society staff with whom she raise the complaint; and any written correspondence between the Applicant and the Society that relates to the complaint in question within that timeframe.
• Confirm witness lists in writing and each other on or before July 15, 2019.
• The Applicant shall disclose all relevant material to the Society and confirm in writing to the CFSRT that it has done so. The Society may also disclose any additional relevant material to the Applicant by this date.
• The Applicant file with the CFSRB one copy of any documents to be relied on at the hearing along with witness statements (including affidavits) on or before July 29, 2019. Witness statements should contain a detailed summary of what the witnesses will say when they testify. The Applicant must serve the Society with one copy of these materials.
• The Society file with the CFSRB one copy of any additional documents to be relied on at the hearing
• Parties shall advise each other and the CFSRB whether they intend to cross-examine on the affidavits.
• Parties will be offered mediation/arbitration and the support of a CFSRB member to engage in mediation in order to resolve some or all the issues in the complaint.

6Subsequently, the Respondent indicated that its primary witnesses would be Kora-Lyn Paulin; Tracey Houle; Terry Longboat (Service Supervisor); and Kayla Rankin. The Applicant failed to confirm her witness list and disclose witness statements and affidavits.

7The parties agreed to proceed to a hearing for May 22, 2020. In preparation for the hearing, the parties were directed in a CMD dated March 27, 2020 as follows:

• The Applicant and her counsel are to inform the CFSRB by April 24, 2020 of her intention to continue with this complaint through the mediation and/or hearing process;
• All parties will confirm their witness lists on or before May 1, 2020;
• All parties will inform each other and the CFSRB whether they intended to cross-examine on the affidavits on or before May 1, 2020;
• All parties are to disclose all arguably relevant materials to each other on or before May 5, 2020; and
• All parties are to file with the CFSRB and each other one copy of the documents which it intends to rely on at the hearing, including witness statements and affidavits on or before May 12, 2020.

the law

8CFSRB 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.”

9Rule 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.”

10Rule 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.”

11Rule 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.

12Workers’ 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

13In my view, to proceed to hear this Application would be an abuse of the CFSRB’s processes for several reasons.

14Firstly, neither the Applicant nor her counsel (if he was appropriately retained) communicated with the CFSRB.

15The Applicant has failed to comply with CMDs and Pre-Hearing Report Directions issued by the CFSRB for over one year. For example, the Applicant and/or her counsel did not comply with the direction to provide witness statements and affidavits on May 9, 2019. As a result of this failure, Respondent’s counsel requested that the complaint be dismissed as abandoned.

16The Applicant and/or her counsel have failed to provide a responsible explanation for their failure to comply.

17The Applicant, and/or her counsel have not formally communicated with the CFSRB regarding her intention to proceed with the complaint, despite being directed to in the March 27, 2020 CMD. There is no communication on the file to confirm that Mr. Fournier has been retained by the Applicant to represent her in these matters. In addition, I note that the Law Assistant for Mr. Fournier (Katrina Eisenhour) indicated in an e-mail of March 20, 2020, that she had scheduled the hearing in Mr. Fournier’s calendar for March 22, 2020. The hearing was scheduled for May 22, 2020. The Respondent clarified this in an e-mail to the Assistant. Neither the Assistant nor Mr. Fournier has communicated to the parties related to the hearing being scheduled for May 22, 2020.

18The Applicant and/or her counsel have also failed to comply with the direction in the March 27, 2020 CMD to: confirm their witness lists and to inform each other whether they intended to cross-examine on the affidavits on or before May 1, 2020. In addition, the Applicant and her counsel did not disclose all arguably relevant materials to the other parties on or before May 5, 2020.

19As a precaution, to follow-up with the CMD, the parties were asked to provide the CFSRB evidence that disclosure was made on or before May 5, 2020. The Applicant and/or her counsel failed to respond to this direction by the Case Management Officer.

20I find that the Applicant has failed to comply with the directions in two CMDs (May 24, 2019 and March 27, 2020) by the CFSRB and has failed to provide an explanation for her lack of compliance. I find 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 her counsel have not acted in good faith with the CFSRB and the Respondent. This behaviour also represents a lack of courtesy and respect for the Tribunal, the other parties, and the complaint process.

21In addition, I find that the Applicant’s failure to confirm in writing her continued interest in pursuing the complaint; her failure to adhere to directions regarding disclosure; and her failure to confirm that Mr. Fournier has been retained as counsel was sufficient evidence for me to conclude that she had abandoned her complaint.

22I also find that the significant delay in proceedings amounted to an abuse of process. The original complaint was filed over one year ago (March 1, 2019). As argued in Figliola, parties have a right to finality in judicial proceedings. I note that the Applicant has not complied with the CFSRB’s directions relating to disclosure for the hearing and has failed to communicate with the CFSRB regarding the CMD of March 27, 2020.

23In this case, the Application was found to be eligible on March 6, 2019. It is now over 14 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 Order suspended limitation periods and procedural time periods; however, it did not suspend the duty of parties to comply with reasonable directions from the CFSRB. The directions included in the March 27, 2020 CMD were reasonable.

24I find that the Applicant’s actions have not resulted in an expeditious resolution of the dispute and has denied the Respondent of its right to finality.

25For the reasons outlined above, the CFSRB finds that the Applicant’s behaviour has amounted to an abuse of process.

ORDER

26The Application is dismissed as an abuse of process.

confidentiality order

27Pursuant 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.