CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
DH
Applicant
-and-
Family and Children’s Services of Guelph and Wellington County
Respondent
DECISION
Adjudicator: Daniel McSweeney
Indexed As: DH v Family and Children’s Services of Guelph and Wellington County (CYFSA s.120)
WRITTEN SUBMISSIONS
DH, Applicant
Unrepresented
Family & Children’s Services of Guelph and Wellington County, Respondent
Olivia Rebeiro,
Counsel
INTRODUCTION AND BACKGROUND
1This is an Application (“Complaint”) filed with the Child and Family Services Review Board (“CFSRB”) under section 120 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”).
2The Applicant is the parent of three boys and is the stepfather of his spouse’s daughter. The children will be referred to as “the Children” in this decision.
3The Applicant identified the following Issues/Concerns in his Complaint:
The Applicant alleges that his concerns regarding the investigation and Respondent staff member JG were not heard; and
The Applicant alleges that respondent staff did not work or communicate with him.
4The Application also makes mention of the fact that he had requested and received a new worker. As such, I find that this issue has been resolved outside the CFSRB process.
5The Applicant’s previous Application to the CFSRB (CA22-0003) was dismissed pursuant to section 120(8) of the Act as the Issues/Concerns in the Application were issues that were before the Court or are currently before the Court. These issues included issues related to the Applicant’s concerns with the investigation and the behaviour or Respondent Worker JG.
6In this current Application the Applicant answered “Yes” to Question 10 – is the concern described in the Applicant currently before the Court?
7The Respondent submitted that the CFSRB did not have jurisdiction to review the current Application as the substance of the complaint is before the Ontario Court of Justice in relation to current child protection proceedings. The Respondent also argued that the Application is sufficiently similar to CA22-0003 such that it would be an abuse of process for the Application to proceed.
8The Respondent submitted that the theme of JG’s conduct and specific events set out in both application form part of the evidence in the ongoing child protection proceedings. In fact, the February 10, 2022, decision of the Ontario Court of Justice made findings of fact in relation to the following issues included in the current Application before the CFSRB:
The Applicant’s views regarding Child Protection Worker JG and the Applicant’s views that JG is a liar, a manipulator and is not trustworthy;
The steps that JG took during the investigation and his involvement with the family; and
The fact that the Applicant has refused to cooperate with the social workers and has impeded society engagement at every turn which supports the argument that the Presiding Justice considered whether there was a defect in the worker’s willingness to work with the family.
9On February 25, 2022, the CFSRB issued a Case Management Direction which directed the Applicant to provide written submissions on whether the CFSRB is barred from reviewing the current Application pursuant to section 120(8) of the Act, and whether the current Application is sufficiently similar to CA22-0003 that it would be an abuse of process for the Application to proceed further.
10The Applicant’s submissions reiterated his belief that their situation is based on the negligence of JG and his investigation; JG’s lack of communication/cooperation with the Applicant; and the Applicant’s belief that JG breached his confidentiality. The Applicant appended several case notes in support of his submissions.
THE LAW
11Section 120(8) of the Act states that the:
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
12The 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).
13Section 23(1) of the Statutory Powers Procedure Act, RSO 1990. C. S.22, as amended (the “SPPA”), provides that tribunals:
may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
14Although the SPPA does not apply in s.120 applications, s.20.1 of O.Reg 494/06 provides the CFSRB with authority to take steps to prevent an abuse of process. It reads as follows:
In order to provide for the just and expeditious resolution of a proceeding arising from an application requesting a review of a complaint under s.68(5) or 68.1(1) of the Act, the Board may make such orders and give such directions in the proceeding as it considers proper to prevent abuse of its processes.
15The Ontario Court of Appeal considered the common law doctrine of abuse of process in Taylor Made Advertising Ltd. v. Atlific Inc., 2012 ONCA 459 at paras 30 and 32. Relying on the Supreme Court of Canada’s decision in Toronto (City) v. CUPE Local 79, 2003 SCC 63 (CUPE), the Court of Appeal affirmed that the common law doctrine of abuse of process
(…) engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.
In determining whether legal proceedings ought to be dismissed as an abuse of process, the question is whether the proceedings would be “oppressive” or “vexatious" or “unfair to the point that they are contrary to the interest of justice".
16The CFSRB concluded in DP v. Children’s Aid Society of Hamilton (CFSA s. 68), 2017 CFSRB 30 (DP), a decision maker ought not to conclude that the inclusion in an application of allegations that have been previously litigated automatically constitutes an abuse of process. Rather, the decision must engage in a contextual analysis that takes into account all of the relevant factors and balances the interests of the parties in order to arrive at a just outcome overall.
17CUPE establishes that the abuse of process doctrine precludes re-litigation that would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice, while recognizing that fairness may dictate that re-litigation be permitted in certain circumstances: See CUPE, above, at paras. 37 and 52-55.
ANALYSIS
18I considered whether the CFSRB is precluded from reviewing the Complaint as the Issues/Concerns in the Complaint are issues that are or have been before the Courts.
19With regard to the issue of the CFSRB’s jurisdiction, section120(8) of the Act directs 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”.
20My reading of this section of the Act confirms that the concept of “subject of the complaint” is a broad category that encompasses more than the content of any specific issue raised by a party before the Court. As such, a specific issue may not have been raised in Court proceedings; however, the proceedings may have addressed the broader subject matter included in a complaint.
21I have reviewed the documents provided by the Respondent in relation to the current Application and have found that the Issues/Concerns identified have been before the Court.
22I note that the Applicant attended recent Court proceedings, was represented, and had the opportunity to present evidence to the Court, including to dispute the Respondent’s evidence, and particularly the evidence of JG.
23Most recently, the Order by Madam Justice Caspers addressed the following: the interaction between the Applicant and Respondent staff; and the Applicant’s unwillingness to engage with Respondent staff, including JG. The Order also addressed the reasons for the Respondent’s apprehension of the Children. Finally, the Order directly addressed the Applicant’s concerns with JG and his belief that JG is a liar and a manipulator. The Affidavit submitted by the Applicant in the recent Court proceedings also addressed his belief regarding JG’s limited observation of the family. The Applicant’s Factum discussed his reticence to communicate with the Respondent.
24In addition to the evidence before the Courts, I note that the Applicant has recognized that his concerns have been before the Court through his response to Question 10 in his Application.
25Given the evidence before me, I find that the 2 Issues/Concerns in the Application have been or are currently before the Court. The Court has addressed the investigation and reasons for the apprehension of the Children. It has addressed the Applicant’s concerns with JG. It has commented on the interaction between the Applicant and respondent staff. As such, I find that the CFSRB is precluded from reviewing the Application pursuant to section 120(8) of the Act.
Abuse of Process
26I considered whether the Issues/Concerns in the Applicant’s 2 Applications were sufficiently similar to raise concerns of abuse of process.
27The CA22-0003 Application focused on the Applicant’s belief that he had not been provided with reasons for the Respondent’s decisions. The current Application alleged that the Respondent failed to hear the Applicant’s concerns regarding the JG and the communication concerns between Respondent staff and the Applicant.
28I find that these 2 Applications are sufficiently different in their content; however, I find that the documentary evidence presented in support of both Applications supported the similar finding that the Issues/Concerns raised by the Applicants are issues that were or are before the Court. For these reasons, I find that the current Applicant does not give rise to an abuse of process.
29I have now been clear in two decisions that issues related to the investigation and apprehension of the Children; concerns with JG; and the communication/relationship between the Applicant and Respondent staff are outside of the CFSRB’s jurisdiction.
30I also note that both parties deserve to have some finality in relation to the issues identified in paragraph 30. Should the Applicant raise any of these issues in future Applications before the CFSRB, they may be subject to a finding of an abuse of process.
31For the reasons identified above, the Application is dismissed in its entirety. The Application is found not to be an abuse of process.
CONFIDENTIALITY ORDER
32Pursuant 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.
Dated at Toronto, March 11, 2022.
Daniel McSweeney
Daniel McSweeney
Member