CT v. Children’s Services of Guelph and Wellington County, 2021 CFSRB 19

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

CT

Applicant

-and-

Children’s Services of Guelph and Wellington County

Respondent

INTERIM DECISION

Adjudicator: Daniel McSweeney

Date: March 23, 2021

Citation: 2021 CFSRB 19

Indexed As: CT v Children’s Services of Guelph and Wellington County (CYFSA s.120)

WRITTEN SUBMISSIONS

CT, Applicant

Self-Represented

Children’s Services of Guelph and Wellington County, Respondent

Antonio Circelli, 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 received. 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 two sons (the “Children”). The Application alleged the following issues/concerns in his complaint:

• Respondent staff failed to hear his concerns related to the Children’s mother’s alleged alcohol use; her driving while under the influence; and her abusive behaviour towards the Applicant, and the Children, and the impact that this behaviour had on the Children;

• He was not provided with an explanation as to why the file was closed within 3 days and without giving him the opportunity to question workers or to express his concerns;

• He was not provided reasons for the Respondent’s involvement in access decisions (e.g. lifting of supervised access conditions, scheduling of access between the parents);

• He was not provided with adequate reasons/explanations for the Respondent’s verification decisions (child exposure to partner violence; and exposure to post-separation caregiver conflict) associated with the Children’s mother’s drinking; her involvement in physical altercations with the Applicant; and her alleged treatment of the Children; e.g. why was the Applicant informed that the mother’s drinking was a “one-time occurrence” despite the Applicant arguing that there were patterns of drinking and abusive behaviour;

• He was not provided with reasons as to the weight the Respondent placed on the evidence provided by the Applicant (e.g. evidence of additional assault charges; ex-partner’s alcohol use; article) in arriving at its verification findings;

• He was not provided with information to reassure him that the Children’s mother would not be drinking around the Children;

• The Manager did not hear his concerns and respond to his correspondence in a timely manner;

• The Applicant was concerned that the Respondent’s findings and verification decisions by the Respondent represented a gender bias in favour of the Children’s mother and blamed him as the victim;

• He was not provided with an explanation as to why some information in the file appeared to be missing;

• He was not provided with an explanation for the Respondent’s handling of the e-mail of March 19, 2020 which allegedly disappeared; and

• His request to have the file transferred to Kitchener FCS was not heard by the Respondent.

4In its Summary Reply to the Application the Respondent indicated that it has heard the Applicant and provided him with reasons. The Respondent argued that it has never taken a position on access and previous correspondence related to access was to confirm arrangements for an access visit. The Respondent also reviewed and considered the evidence provided by the Applicant on a USB stick. Finally, the Respondent indicated that some of the issues in the complaint were better resolved through outstanding Children’s Law Reform Act proceedings.

5At the Pre-Hearing Teleconference on January 13, 2021, the Applicant chose not to engage in mediation. Parties then proceeded to make arrangements for a hearing. It was decided that, on or before February 11, 2021, the parties were to disclose all arguably relevant material to each other. On or before February 25, 2021, parties were directed to file documents that they intended to rely upon at the hearing. Because of the Applicant’s delay in signing a request and consent, and his difficulties accessing the information provided by the Respondent, the Applicant was able to pick up the disclosure on February 23, 2021.

6In an e-mail dated February 24, 2021, the Applicant expressed his concerns related to significant redactions in the documents disclosed by the Respondent.

7In an Amended Case Management Direction (CMD) dated February 25, 2021, I addressed the issue of redacted disclosure.

8I directed the Respondent to provide an explanation to the Applicant for its redactions and its policy regarding redactions. In addition, I directed parties to provide submissions on the issue of redactions in disclosure. I also directed the Respondent to provide the CFSRB with a copy of the unredacted disclosure for review in conjunction with the submissions.

9No submissions were received from the Applicant. The Respondent provided submissions on March 4, 2021. The Respondent argued that, at the time of the JS v. Windsor-Essex Children’s Aid Society decision, the children’s aid societies in Ontario were not subject to Part X of the Act. The redactions in the Applicant’s disclosure are pursuant to the disclosure of personal information provisions in Part X. The Applicant does not have a right to information from the personal file of another person. The Applicant has recourse to the Office of the Information and Privacy Commissioner to address his disclosure concerns.

10The Respondent also indicated that it could not provide the CFSRB with an unredacted copy of the disclosure as it is prohibited from releasing personal information of individuals who have not consented to disclosure pursuant to Part X of the Act.

11In a CMD dated March 5, 2021, I directed parties to provide additional submissions on the issue of the disclosure of unredacted documents. I directed the parties to address section 292(1)(f) of the Act as well as CFSRB Rule 6.2 in the Rules of Procedure which addresses the CFSRB’s authority to order the disclosure of documents.

12On March 11, 2021, the Respondent provided the following submissions, which supplemented the submissions in its March 4, 2021 letter (see paragraph 11 above). The Respondent argued that Part X of the Act was intended to protect the personal information of individuals whom the agency services. In the current case, the information sought was that of the children’s mother who is not a party to the CRSRB complaint. The Applicant’s complaints related to the care provided by the mother and subsequent investigation of her parenting which required the Respondent to protect this third-party information under Part X.

13In response to the CFSRB’s direction to address Section 294, the Respondent argued that the CFSRB did not have the powers under the Statutory Powers and Procedure Act (SPPA) to address complaints pursuant to section 120 of the Act. Given that the CFSRB did not have the power to issue a summons pursuant to the SPPA, Counsel argued that: “it follows that the Board cannot force a party to provide disclosure that they are otherwise not entitled to – in this case Part X prohibits the disclosure of personal information relating to Z [the Children’s mother].”

14The Respondent argued that: “The Board is not contemplated within the definition of proceeding and/or having jurisdiction to make the orders it has made”. The complaint is between the Applicant and the Respondent society. The Rules of Civil Procedure (Ontario) define a proceeding as an action or application which is a contest between two private parties.

15Finally, the Respondent argued that the Applicant’s matter could proceed without the need to disclose the mother’s personal information.

16The Applicant also provided submissions. He indicated that he was not seeking the unredacted files for his own personal use, rather, he wanted the unredacted file to be provided to the CFSRB to ensure that both parties were acting in good faith. The Applicant indicated that the unredacted files would assist in addressing the following: alleged inaccuracies in the redacted files; breaches of Part X of the Act; concerns with the timeliness of case log entries and poor case management; a possible privacy breach; and the alleged falsification of records.

THE LAW

Disclosure of Personal Information

17Part X of the Act addresses the legal requirements for the collection, use, and disclosure of personal information by child welfare agencies. Section 286 indicates that a service provider (child welfare agency) cannot collect, use or disclose information without the consent of the person to which the personal information relates, or which is necessary for a lawful purpose. Section 292(1) outlines the conditions under which a child welfare agency can disclose personal information without consent.

18Section 292(1) of the Act states:

“A service provider may, without the consent of the individual, disclose personal information about an individual that has been collected for the purpose of providing a service.”

19Subsection 292(1)(f) states:

“Subject to section 294, for the purpose of complying with,

i) a summons, order or similar requirement issued in a proceeding by a person having jurisdiction to compel the production of information in a proceeding; or

ii) a procedural rule that relates to the production of information in a proceeding.”

20Section 294 of the Act provides:

(1) In this section,

“court” includes the Divisional Court; (“tribunal”)

“record of a mental disorder” means a record or a part of a record made about an individual concerning a substantial disorder of the individual’s emotional processes, thought or cognition which grossly impairs the individual’s capacity to make reasoned judgments. (“dossier relatif à un trouble mental”) [emphasis added]

Disclosure pursuant to summons, etc.

(2) A service provider shall disclose, transmit or permit the examination of a record of a mental disorder pursuant to a summons, order, direction, notice or similar requirement in respect of a matter in issue or that may be in issue in a court or other body unless a physician states in writing that the physician believes that to do so,

(a) is likely to detrimentally affect the treatment or recovery of the individual to whom the record relates; or

(b) is likely to result in,

(i) injury to the mental condition of another individual, or

(ii) bodily harm to another individual.

Court or body to determine whether to disclose

21(3) Where the disclosure, transmittal or examination of a record of a mental disorder is required by a court or body before which a matter is in issue, the court or body shall determine whether the record referred to in the physician’s statement should be disclosed, transmitted or examined. [emphasis added]CFSRB Rule 6.2 in the Rules of Procedure which states:

“Where it considers appropriate at any stage of a proceeding, the CFSRB may order a party to disclose documents, witness statements, reports of expert witnesses, or to provide further particulars and may issue directions respecting the use of personal information contained in the documents disclosed”.

ANALYSIS

22I turned my mind to whether the CRFSRB had the authority under Section X of the Act to order the disclosure of documents.

23The Respondent argued that Part X of the Act prohibits the disclosure of third-party information without consent.

24The Respondent did not provide submissions on the applicability of the second prong of section 292(1)(f) which allows for the disclosure of personal information without consent pursuant to a: “procedural rule that relates to the production of information in a proceeding”. The Respondent also did not comment on CFSRB Rule 6.2 which allows it the authority to order disclosure.

25The Respondent argued that the Rules of Civil Procedure applied to proceedings between two private parties. I note that these Rules apply to civil proceedings at the Ontario court of Appeal and Superior court of Justice and do not apply to the CFSRB. As such, this argument is irrelevant to my jurisdictional analysis.

26The CFSRB concurs with the Respondent’s argument that the SPPA does not apply to complaints under sections 119 and 120 of the Act. Therefore, I placed no weight on the Respondent’s submissions regarding the SPPA and summonses.

27The Applicant did not address the issue of the CFSRB’s jurisdiction to order disclosure in his submissions.

28Section 292(1)(f)(ii) clearly allows for the disclosure of third-party information without consent pursuant to a rule that relates to the production of information in a proceeding. CFSRB Rule 6.2 is a rule which directly relates to the production of information in a proceeding. The parties have not provided me any argument or jurisprudence that directly covers the exception included in section 292(1)(f)(ii).

29I do not have any evidence or submissions before me that the provisions in section 294 regarding records related to a mental disorder are factors to be considered in the current case before me. As such, I find that Part X of the Act allows for the disclosure of third-party information by the Respondent without consent pursuant Section 292(1)(f)(ii).

30I also find that the Respondent was not correct in citing Part X of the Act as a justification for refusing the CFSRB’s direction to provide the CFSRB with a copy of the unredacted disclosure it is February 24, 2021 CMD. The CFSRB Rules of Procedure are clear that the CRSRB has the authority to order disclosure. I can find nothing in Part X of the Act to override the CFSRB’s right to order disclosure pursuant to its own rules. As per JS v. Windsor-Essex at paragraph 21: “the only role for the Board is to determine whether the extent of the redactions interferes with a fair process before the Board.” The CFSRB has the jurisdiction to review redactions to ensure a fair process.

Should the CFSRB Order Production of Third-Party Information in the Applicant’s File

31Having found that the CFSRB has the jurisdiction under Part X of the Act to order production, I turned my mind to whether it was appropriate for the CFSRB to order the disclosure of the Applicant’s file in this particular case.

32I carefully considered the Applicability of JS v. Windsor-Essex Children’s Aid Society. Respondent’s counsel argued that this decision pre-dated Part X of the Act and therefore it had no authority regarding the issue of disclosure. As I have found above, Part X allows the disclosure of third-party information pursuant to a procedural rule. As such, I find that JS v. Windsor-Essex is an appropriate source upon which to draw guidance and ground my decision.

33This decision indicated that the CFSRB has the jurisdiction to order production. A fair and transparent hearing includes the right to receive disclosure. A society has the right to redact identifying information to protect the privacy of others and to protect privileged information. Applicants must be provided with sufficient information to enable them to make out the complaint and to respond to the case put forward by the society. Meaningful participation requires that a society provide minimally redacted disclosure, reasons for the redactions must be explained to the Applicant, and an applicant must be provided with the society’s disclosure policy to understand why certain information has been redacted.

34Both JS and the Applicant submitted a complaint to the CFSRB about the service they received pursuant to the same provisions of the Act. (section 68.1(4) 4 and 5 of the Child and Family Services Act. R.S.O. 1990 c.C.11 are equivalent to sections 120(4) 4 and 5 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14. Sched. 1.)

35JS v. Windsor-Essex confirms that a fair hearing in administrative processes includes the right to receive disclosure pursuant to AH v. Kawartha-Haliburton Children’s Aid Society, 2014 CFSRB 62 at para. 30. In addition, the Board is obligated to ensure a fair process under the common law.

36I considered the arguments provided by the parties related to the disclosure of the third-party information of the Children’s mother.

37The Respondent argued that it had a duty to protect the information of the children’s mother as the complaint filed by the Applicant related to the care provided by the mother who is not a party to the proceedings. As noted in paragraph 3 above, the Applicant’s complaint goes beyond issue/concerns with the care provided to the Children by their mother. The Applicant has alleged that he was not provided reasons as to how the Respondent weighed the evidence before it, especially in regard to the allegations against the Children’s mother. The Applicant also was concerned with the role that gender played in the Respondent’s decision-making. This led the Applicant to feel that the Respondent’s staff engaged in victim blaming and that their decision-making had a gender bias against him.

38A.H. v. Kawartha-Haliburton Children’s Aid Society, 2014 CFSRB 62, at paragraph 32 cites Administrative Law in Canada regarding disclosure:

“Disclosure reduces the element of surprise in administrative proceedings and enables a party to review the alleged facts, respond to such facts with rebutting evidence, and prepare submissions presenting how the facts should be weighed and analysed.”

39I then considered whether to place limits on the disclosure. The JS v. Windsor-Essex decision concluded that, in order to ensure meaningful participation, the file must be minimally redacted. The decision allows for redactions of solicitor and client communications. I also note that the CFSRB has a role to play in ensuring that the disclosure of third-party information does not cause physical or emotional harm to the third-party. In this case, the Respondent has not argued that the disclosure of information relating to the Children’s mother would result in physical or emotional harm, or safety concerns to her. The Respondent has solely argued that the disclosure is prohibited based on Part X. I also note that the Respondent has not indicated that there is any information regarding third parties other than the Children’s mother.

40I considered the confidentiality provisions that relate to proceedings before the CFSRB. Rules 9.1, 9.3 and 9.4 of the CFSRB’s Rules of Procedure address confidentiality, including the confidentiality of third-party information disclosed during proceedings. Rule 9.1 ensures that all proceedings, including hearings are to be held in private. Rule 9.3 indicates that

“Subject to an order of the Court or the CFSRB, parties and their representatives shall not use documents or information obtained under these Rules or in the course of the CFSRB’s proceeding for any purpose other than the proceeding before the CFSRB.”

41Rule 9.4 states that:

“All CFSRB decisions are subject to a confidentially order and may also contain information subject to section 87(8) of the CYFSA, 2017. The CFSRB publishes a redacted version of its decision. No one shall circulate, reproduce, communicate or publish any information contained in or obtained from an unredacted decision of the CFSRB without first obtaining an order of the CFSRB or the Court.

42Based on the nature of the issues in the complaint, and to understand the reasons why the Respondent made some of its decisions, I find the Applicant requires information regarding the investigation of the Applicant’s concerns; the Respondent’s reasoning around weighing of the evidence, and the reasoning for its verification findings. I also find that the Applicant requires information regarding the treatment of the mother by Respondent staff to address whether the Applicant was provided with sufficient reasons to support the Respondent’s conclusions that related to gender. This will require the examination of information in the Applicant’s file that relates to the mother of the Children.

43Equal access to such information will result in fairness in the CFSRB proceedings and the ability of the Applicant to participate in proceedings in a meaningful way. The confidentiality rules of the CFSRB will protect the privacy interests of the Children’s mother. The Respondent is free to redact any solicitor client privileged information or third-party information that is unrelated to the Children’s mother.

44Based on the directions provided in JS v. Windsor-Essex, I direct the Respondent to redact any privileged information, as well as any information that may pose a safety and security risk to the Children’s mother. I note that the Respondent has already provided copies of its disclosure and privacy policies and procedures, and has mentioned the reasons for redactions in its two sets of submissions. The Respondent will provide the Applicant with the disclosure on or before April 16, 2021.

Summary

45Given the provisions of section 292 (1)(f)(ii); given no additional prohibition in Part X of the Act; given Rule 6.2 which allows the CFSRB to order production; and given the guidance in JS v. Windsor-Essex Children’s Aid Society, I find that the CFSRB has the authority to order the unredacted disclosure of the Applicant’s file, pursuant to limitations related to privilege, and the safety and security of the Children’s mother or other third parties.

ORDER

Based on my analysis, I direct the Respondent to disclose the unredacted file (with exceptions for privileged information, information of third parties other than the Children’s mother, and information impacting on the Children’s mother’s safety and security) to the Applicant on or before April 16, 2021 and to confirm delivery of the disclosure to the CFSRB.

CONFIDENTIALITY ORDER

46Pursuant 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.