Court File and Parties

CITATION: Stamatis v. Children’s Aid Society of Toronto, 2017 ONSC 7056

DIVISIONAL COURT FILE NO.: 352/15

DATE: 20171129

PUBLICATION BAN PURSUANT TO S. 45(8) OF THE CHILD AND FAMILY SERVICES ACT R.S.O. 1990, c.C.11

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kiteley, Tzimas, Matheson JJ.

BETWEEN:

Jim Stamatis

Applicant

– and –

Children’s aid society of toronto

Respondent

Henry Juroviesky, for the Applicant

Eric del Junco and Sarah Molyneaux, for the Respondent

HEARD at Toronto: October 19, 2017

Reasons for Judgment

KITELEY J.

[1] This is an application for judicial review of decisions made by Children’s Aid Society of Toronto (CAST) dated March 22, 2011, February 2, 2012 and February 9, 2015 to verify or confirm the verification of an allegation made against the Applicant of risk of sexual harm. For the reasons that follow the application is granted and the decisions are quashed.

The Allegations and the Investigation

Overview

[2] Sia Stamatis is the owner/operator of ABC Day Care (Day Care). At all times she maintained effective control over all aspects of the Day Care although her daughter and husband were minority shareholders. Jim Stamatis is her husband and, until March 30, 2011, he was a teacher at the Day Care.

[3] The Day Care has five primary programs stratified by age, namely, the baby or infant program for children from 0 to 18 months, the toddler program for children from 18 to 30 months, the pre-school program for children from 2.5 to 4 years, the kindergarten program for children from 4 to 6 years and the school age program for children from 6 to 12 years. Each of the programs must have a Ministry approved teacher present at all times and for that reason, a non-approved teacher must always be accompanied by an approved teacher.

[4] In 2009 a parent of a 2.5 year old child who had attended the Day Care reported that the Applicant had touched the child inappropriately. The CAST has been unable to locate the records of that referral. In 2010, the same parent contacted the CAST and said that her child was continuing to make the same statement. The CAST conducted an investigation and closed the file as “inconclusive”.

[5] In 2011, a parent of a 9 year old child who had attended the school age program contacted the CAST alleging an unwanted touching. After its investigation. the CAST “verified the risk of sexual harm” and, as a consequence, the licensing authorities directed that the Applicant be prohibited from attending at the Day Care when the children are present.

[6] In efforts to “clear his name”, between 2011 and 2015 the Applicant pursued internal procedures at the CAST, namely through the Internal Complaints Review Panel (ICRP) and externally to the Child and Family Services Review Board (CFSRB), all without success. His goal in bringing this application for judicial review is have the verification decision quashed so that he would be permitted to return to the Day Care as a teacher.

[7] The Applicant provided an affidavit sworn July 8, 2015 in support of his application along with affidavits of his wife and eight current or former employees. The evidence indicates his persistent denial of any of the allegations, his insistence that if the CAST had followed the mandatory investigative steps of interviewing current and former staff, the facility administrator, and his supervisor, if the CAST had conducted an examination of the lay-out of the premises, and if the CAST had undertaken the recommended (but not mandated) step of investigating the policies, procedures, staffing levels, shift patterns, staff training and qualifications, daily routine and programming at the Day Care, the assigned investigator and her supervisor would not have verified the risk of sexual harm.

[8] The responding record consists of the affidavit of Nancy Andrews, the Director of the Intake Branch since 2007. In her evidence, Andrews attached relevant documents, explained the chronology, and confirmed all steps that had been taken by the CAS including the verification decision.

The alleged touching in 2009

[9] On April 24, 2009 the parent of a child then 2.5 years old (referred to as GM) called the Respondent and reported statements the child had made to the mother of touching allegedly by the Applicant in April 2009. Other than the form Referral/New Information Report, the Respondent has been unable to locate the records pertaining to the referral and whether any steps were taken as a result.

[10] On June 7, 2010 the same mother called the Respondent and reported to a different Intake Worker that the child was continuing to make the same statement about touching. A Referral/New Information Report was completed. There are some records available with respect to the steps taken by the Respondent to investigate including contacting the police and day care licensing and including interviewing the Applicant. There is a brief case note that the worker contacted the Day Care and confirmed that the Applicant worked there. On August 30, 2010, the Senior Social Worker and her Supervisor agreed that the allegations reported by the child should be “deemed inconclusive” based on the following “Verification Rationale and Conclusion Following Review with Supervisor”:

GM did not make a disclosure to this worker or to the police and is not able to give any context to the disclosure. However, GM has been consistent over time with her disclosure that Jim [touched her] as she told her mother about this last April without provocation. There is no reason that GM’s mother would fabricate this allegation. GM’s language in regards to this disclosure is congruent with her developmental level. GC, sexual abuse therapist, feels that GM’s disclosure is credible.

[11] The Senior Social Worker and her Supervisor confirmed that conclusion in a letter to the Applicant dated August 30, 2010.

[12] The allegation made by the child was unusual. Because of the finding that the referral was deemed inconclusive and the unusual nature of the allegation, I will not repeat it. It will be referred to as the “alleged touching in 2009”.

The 2011 allegation

[13] On March 21, 2011 at 9:05 a.m. the mother of a 9 year old child (referred to as RZ) called the Respondent and reported statements the mother said that RZ had made to the mother which involved the Applicant and his alleged interaction with RZ.

[14] The referral was assessed as a case of possible risk of sexual harm, code 13H.[^1]

[15] The CAST interviewed the child and obtained information that indicated that the child said that the Applicant had touched a baby in the babyroom. This will be referred to as the “touch baby allegation”. The child also said that the Applicant (referred to by her as “Jim”) had touched the 9 year old twice on the buttock, once while crossing the street between the school and the Day Care and once in the office in the Day Care. These will be referred to as the “street crossing allegation” and the “office allegation”.

[16] The allegation was assigned for investigation to Dawn Kwan, Senior Social Worker.

The Investigation

[17] At some point on March 21, Kwan prepared an Investigative Plan that listed the following: contact mom for permission; consult with police; interview child; interview mother; connect with Children Services [referring to day care licensing authorities].

[18] Kwan received or made calls involving the mother, the police (to arrange a joint interview with RZ and with the Applicant), and the person responsible for licensing day care centres which calls are noted at 10:27, 10:38, 10:45, 10:59, 12:10, 12:32, 12:45, 12:54, 1:03 and 2:45.

[19] According to the affidavit of Andrews, Kwan and two police officers conducted a joint interview with RZ. The notes made by Kwan indicate that the interview with the child began at 3:50 and ended at 4:20. According to Andrews, the child said the following:

(a) she understood honesty, truth and lies;

(b) Mr. Stamatis “sometimes touches her butt”;

(c) this happened once in the office and once on the street;

(d) both incidents happened before Christmas, in November [2010];

(e) she had not disclosed this previously because it was embarrassing;

(f) no one was in the office when the office incident happened and RZ was at the back of the line of children with Mr. Stamatis when the street crossing incident happened such that no one would have seen either touching.

[20] According to the notes made by Kwan, RZ elaborated on the incident in the street when the children were walking from the school to the Day Care. RZ did not have a partner so “Jim” was her partner and she was in the back of the line. She was also asked to elaborate on the incident in the office and she said that he told her to get a paper from the photocopier and she got it and he touched it (presumably a reference to her butt). She is noted as having said “photocopies, computer, desk, baby section in front, paper on desk, no window to office, when in office, door was shut she thinks”; and she was standing and he was on a roll chair and slide [sic] on it. The notes also contain the following: “I have seen Jim touch baby – he changes diaper” and that “he didn’t know because I don’t see him” and “1X he pick up baby, he touched bottom”.

[21] According to the affidavit of Andrews, Kwan and the two police officers attended at the Day Care premises to conduct a joint interview. According to Sia Stamatis, it was the police officer who questioned the Applicant. Kwan directed only one question to Sia Stamatis and that was an inquiry as to what plans she had for her husband.

[22] Kwan’s notes indicate that the meeting started at 5:00 p.m. but the end time is not noted. Sia Stamatis was present at the request of the Applicant. According to the notes, the Applicant was “told allegation” and that it involved inappropriate touching in the office and “he said never in office with her alone” and “when walk to school”. He denied both incidents and indicated he was “astounded” and that the allegations were “crazy” and “insane”. The notes indicate that the Applicant said at no time was he in the office with RZ; that none of the employees are alone in the office; that the door to the office was not locked; that the office door is open so anyone could go in; in the toddler room there is a camera as well. The notes indicate that a “safety plan” was discussed and reflect the agreement by Sia Stamatis that effective immediately the Applicant would not be alone with any child and she would have a staff meeting immediately to ensure all staff knew of that requirement.

[23] There is no indication in the notes that Kwan or the officers observed the Day Care premises, requested and were given a tour of the premises, or made any written description or diagram of the premises.

[24] According to the affidavit of Andrews, on March 22, 2011[^2], the day after the mother made the report, Kwan met with her supervisor, Troy Tilley and “they made a joint decision to verify a risk of sexual harm finding based primarily on the credibility of RZ’s disclosures that she had been touched sexually by the Applicant. Another key factor in the decision to verify risk of sexual harm was the prior allegations by GM that were investigated in 2009 and 2010 which were deemed inconclusive”.

[25] The case note completed by Kwan indicates that that meeting was “Review re: Investigation Verification, whether child in need of protection and disposition”. The notes made by Kwan were as follows:

Consult w Troy

Child made credible disclosure that Jim touched her on the butom [sic]

Jim denies adamantly

Verify 13H[^3] – poor bounderies [sic], needs to be educated re clear bounderies [sic], inappropriate, child gave detailed credible disclosure

[indecipherable word] child not in need of protection.

[26] The Respondent’s file includes written statements by 13 of the Applicant’s co-workers at the Day Care all of which supported the work of the Applicant and his professionalism. Based on the Case Summary prepared by Kwan dated April 14, 2011, they were all received on March 25, 2011. Kwan did not contact any of them because she thought staff could not be trusted to be truthful because the Applicant was married to the owner of the Day Care.

[27] Kwan prepared a case note dated March 30, 2011 which reflects her meeting that day at the Day Care with Sia Stamatis and the licensing specialist. In this case note, Kwan included a rough sketch that measures about 5” by 3” and identifies the toddler room on the right adjacent to the office with a door from the toddler room to the hallway and the door appears to be closed. Kwan noted that the wall between the toddler room and the office consisted of a glass window in the top half. The office occupied almost as much space as the toddler room. Her sketch showed a door from the office that appears to be closed with a notation of “copies” from which I infer it was a photocopy machine. The sketch includes two smaller boxes to the left of the office without identification.

[28] The diagram prepared by the Applicant for this application is on paper 8.5” by 11” and is more detailed and informative. The Day Care consists of an office in the middle with the “babyroom” adjacent on the left and the “toddler room” adjacent on the right. The babyroom is occupied during the school hours by toddlers and occupied before and after school hours by children who attend the school across the street and who are accompanied to and from the school to the Day Care. Parallel to the office is a corridor running the length of the Day Care with a kitchen at the far end adjacent to the babyroom. It shows the door from the toddler room to the hall as open from 7:00 a.m. to 6:00 p.m. and the half wall glass window is open for the same period; in the toddler room there are three teachers posted at different locations in the room; the office door to the corridor is open from 7:00 a.m. to 6:00 p.m.; the office includes a desk and office chair and immediately above the desk is a surveillance ceiling camera which records 24/7 and immediately inside the office and adjacent to the photocopy machine is a warning that the room is under surveillance. On the other side of the office is the babyroom that has 2 doors, one to the lower level and the other to the corridor both of which are open from 7:00 a.m. to 6:00 p.m. Three teachers are located at different locations in the babyroom. The open door from the babyroom into the corridor leads into a kitchen that has no door and the kitchen staff member has a direct view of the corridor and into the babyroom. The Applicant’s diagram indicates a corridor running the length of the space between the kitchen and babyroom and ending at the stairs outside the toddler room.

[29] On April 13, 2011 the Respondent provided a letter to the Applicant with this content:

This letter is to inform you that the Children’s Aid Society of Toronto was investigating an allegation that you touched a child on the buttocks on two occasions. This child attended ABC Day Nursery, where you are employed.

This investigation has been completed and the allegation of risk of sexual harm was verified. (emphasis in original)

As an investigation was completed regarding you, there is an electronic record in the Society’s database. This record can only be accessed by child welfare agencies in Ontario should another referral regarding you be received in the future.

[30] A similar letter of the same date was sent to Sia Stamatis.

[31] Exhibit 10 to the affidavit of the Applicant is the handwritten Child Care Report prepared by Children’s Services which reflects the meeting with Sia Stamatis on March 30 in which conditions were imposed on the Day Care. In a letter to Sia Stamatis that is undated but delivered on April 13, 2011, the Ministry of Community and Social Services stated as follows:

. . . The ministry has received your action plan to address the risk to the children. As such, it is understood that:

• The identified staff member will no longer be directly involved with the children in the centre;

• The identified staff member will no longer work at the centre during regular operating hours; and

• The operator, Sia Stamatis, will complete child abuse training sessions on April 28^th and 29^th, 2011.

The ministry accepts your action plan and strongly recommends you continue to monitor its implementation. In addition, please maintain records of any training completed for future review by ministry staff. . . .

[32] According to Sia Stamatis, she had no choice but to acquiesce in those conditions that have applied since March 30, 2011.

[33] In the “Investigation of Allegations/Concerns” form dated April 14, 2011 in which Kwan summarized what had occurred in the investigation and confirmed that the file was being closed, Kwan included the following under “Verification Rationale & Conclusion Following Review with Supervisor”:

Although Mr. Stamatis is denying the allegations, given the credibility and detail in the disclosure by RZ and the credibility of the disclosure in the past by GM (investigated previously), a decision was made to verify risk of sexual harm in this case.

[34] Kwan included the following in her summary of the investigation:

On March 30, 2011 this worker and licensing specialist Valerie Azonwanna attended the daycare unannounced. Jim was in the school-aged room with Sia. Ms. Azonwanna and this worker met with Sia and shared with her the Society’s verification decision so that Sia and Licensing could come up with a safety plan. Sia indicated that effective immediately Jim will not be working with the children. On this day, this worker also informed Jim directly regarding the results. He was very upset at the decision and continued to indicate that he did not touch the child on her bottom. He indicated that there is a camera in the office. Sia clarified that the tape is only kept for a month; therefore this worker could not check for November dates.

[35] On April 13, 2011 the CAST received a letter from Mr. Stamatis indicating that he was no longer employed as a fulltime teacher at the ABC Day Nursery.

[36] The police did not lay any charges.

Applicant’s Challenges to the Verification of Risk Finding

[37] Pursuant to s. 68 and 68.1 of the Child and Family Services Act,[^4] (CFSA) any person who has received services from any Children’s Aid Society may complain and seek redress internally through an Internal Complaints Review Panel (ICRP) and externally to an independent tribunal, the Child and Family Services Review Board (CFSRB).

[38] On November 17, 2011 the Respondent received an undated letter from the Applicant in which he made a complaint about the investigation and asked for review by the ICRP. The Applicant insisted he was innocent of any misconduct and he asked that the verification of risk of harm be rescinded and that he be fully exonerated.

[39] The Manager, Client Services at the Respondent sent the Applicant a letter dated February 2, 2012 that stated as follows:

During the Internal Complain [sic] Review Panel (ICRP) meeting which was held on November 29, 2011 the Society explained that a Director from Intake Branch would conduct a review of your file as you were concerned about the verification decision reached by the service team. The review has been completed by Nancy Andrews, Director of Intake. Ms. Andrews has carefully reviewed the file and has interviewed both Mr. Tilley and Ms. Kwan. Ms. Andrews has concluded that she is satisfied that the verification decision reached by the service team, “risk of sexual harm”, is supported by the information gathered during the investigation.

In addition, during the ICRP meeting the Society agreed to contact the Ministry of Children and Youth Services, Manager of Licensing and Compliance to clarify the Society’s verification. Ms. Tilley has spoken with Judy MacLeod of that office and sent a follow-up letter clarifying the Society’s verification decision. As was noted in the ICRP meeting, the Society is unable to influence the licensing requirements or policies of the Ministry. . . .

[40] In Andrews’ affidavit the following appears:

74. I was satisfied that the verification decision reached by the service team of “risk of sexual harm” was reasonably supported by the information gathered during the investigation for the following reasons:

(a) The child’s disclosure to the respondent and the police was detailed and credible and the interview of the child appeared to have been thorough and complete.

(b) There was a history of prior allegations by another child who was apparently unconnected in any way to the second child.

(c) There was no information in the file to suggest that either child or family might have had any motive to fabricate allegations against Mr. Stamatis.

(d) With regard to Mr. Stamatis’ complaint that Ms. Kwan did not interview other students and staff of ABC, I concluded that it was unnecessary for Ms. Kwan to interview other potential witnesses. RZ was clear that no one else had seen the touching by Mr. Stamatis and it was quite possible that this touching could have occurred as described by RZ with no one seeing or noticing. Interviews of other students or staff would have been highly intrusive and could not have negated the disclosure of RZ to the extent of rendering a verification of risk incorrect.

75. I reviewed the letters provided by Mr. Stamatis signed by various staff at ABC attesting to Mr. Stamatis’ good character. I did not view these letters as sufficiently probative that the touching had not happened as described by RZ to render the verification of risk of harm incorrect for the following reasons:

(i) The touching described by the child could have occurred as described without being seen.

(ii) Mr. Stamatis is married to the owner of ABC and would inevitably be viewed by all staff as a de facto “boss” because of this relationship.

[41] In a letter dated February 15, 2012, the Applicant made an application pursuant to s. 68.1 to the CFSRB requesting a review of the decision of the ICRP.

[42] In a letter dated March 14, 2012 the CFSRB informed the Applicant that it would hold an oral hearing and that a Pre-Hearing and Settlement Facilitation Conference would be scheduled. At the April 11, 2012 settlement conference an agreement was reached that required the Respondent to provide the Applicant with a copy of his file and the Respondent would provide a detailed written explanation of the investigation process with reference to the Standards, the Eligibility Spectrum and other applicable policies and the steps it took to investigate and verify the allegations.

[43] The Respondent sent a letter to the Applicant dated May 10, 2012 that provided the detailed explanation. This letter does not reflect a decision but counsel for the Respondent took the position that it contained information relevant to this application.

[44] In a letter dated May 23, 2012, a Case Coordinator for the CFSRB confirmed that since neither party had contacted the Board by May 17, 2012 to advise if the Settlement Agreement had not been fully implemented, the Board deemed the matter settled and the Board file was closed.

[45] The Applicant retained a different lawyer who was in contact with the Respondent. In a letter dated June 26, 2013 the Manager of Client Services informed that lawyer that the Respondent would not re-open the investigation and the verification decision would remain unchanged. She referred to the letter dated May 10, 2012.

[46] In a letter dated September 14, 2014 sent by the current counsel, the Applicant filed a Request for Review Application pursuant to s. 68.1 again asking that the CFSRB review the Respondent verification process and decision.

[47] At the Pre-Hearing and Settlement Facilitation Conference on November 17, 2014, the Applicant and the Respondent signed a Settlement Agreement which provided for a fresh ICRP on conditions including: the ICRP would consist of a member of the Respondent’s senior management who had no previous involvement with the issues and a current or former member of the Respondent’s Board of Directors other than a named person who had participated in the first ICRP process; the parties would exchange outlines of their respective positions in advance; and the CFSRB file would be closed if neither party communicated to the CFSRB within 19 days after the ICRP meeting was held.

[48] The parties did exchange outlines as a result of which a “Chart of CAS Departures from CAS Standards” was prepared which listed the departures asserted by the Applicant and the Respondent Response and the Applicant’s Response. Following the ICRP meeting on January 26, 2015 another version of the chart was prepared which included a column for “Panel Discussion”.

[49] In a letter dated February 9, 2015 the Manager, Service Administration for the Respondent reported on the outcome of the ICRP meeting and commented on the Applicant’s concern that Kwan had not conducted an evaluation of the physical layout of the Day Care. The letter stated as follows:

The Society responded that, in hindsight, the investigating worker should have provided a sketch of the layout of the daycare on the day she attended to investigate. However, as the case had to remain open for 30 days, and the worker provided a sketch within that time, the Society was not in breach of the Standards. Additionally, during the period the case remained open, the Society can always change its verification decision in light of any new information, inclusive of issues such as the layout of the daycare. However, in this matter, the Society did not believe that consideration of the physical layout of the day care was new information, nor did it change the verification of “Risk of Sexual Harm”. (emphasis added)

The letter concluded as follows:

The file review [by Nancy Andrews] found that the Standards were adhered to and that the Society reached a conclusion of “risk of sexual harm” reasonably. The Panel agreed with the findings and since the Society is unable to influence the licensing requirement or polices [sic] of the Ministry as noted in the ICRP meeting on November 29, 2011, the panel does not feel that there are any further issues to pursue at this point.

[50] In a letter dated February 27, 2015, the Case Coordinator informed the Applicant that the matter was deemed settled and closed the Board file.

[51] The Notice of Application for Judicial Review was issued on July 22, 2015.

Investigation Framework

[52] The Children’s Aid Society of Toronto is a statutory agency that is mandated by s. 15(3) of the CFSA to protect children within its jurisdiction including investigation of allegations of abuse and neglect. Pursuant to s. 15(3), a Society is required to follow the prescribed procedures and practices.

[53] The Eligibility Spectrum (Spectrum) was first introduced to the child protection field in 2000 and was updated in 2006. It is a tool designed to assist workers to “interpret the legal requirement for initial and ongoing child welfare interventions” and to make consistent decisions regarding eligibility and timelines for service. The Spectrum sets out various forms of child maltreatment and provides the worker with scales of severity.

[54] The Child Protection Standards for Ontario (Standards) came into effect in 2007 as O. Reg. 206/00. They set out for child protection workers the mandatory framework within which child protection service is to be delivered from the point of first contact with a Society to the point of case closure. Counsel provided a copy of the Standards that were in effect in 2011. The Standards include an acknowledgement of the complex and unique needs of families and provides workers with discretion to depart from the Standards “for reasons beyond the control of the worker (e.g. the child and the family are unavailable for interviews) . . . if reviewed and approved by a supervisor”. Because the Standards refer to the Spectrum, all CASs in Ontario are obligated to interpret and apply the Spectrum in carrying out their statutory mandate to protect children.

[55] When the Respondent receives a report from the community about a risk to a child’s safety or well-being, the first step is to use the Spectrum to guide the determination of whether the information provided meets the requirements for initiating a child protection investigation.

[56] During the investigation of a community caregiver, such as a daycare, the mandatory steps are as follows:

• interviews with the alleged victim(s), staff witnesses (current and former) child witnesses, facility administrator, supervisor of the alleged perpetrator and the alleged perpetrator

• examination of the physical layout of the setting.

[57] One of the other investigative steps which is not in the mandatory category is that the investigator is to conduct an examination of facility policy and procedures, staffing level and shift patterns, staff training and qualifications, daily routine, and programming.

[58] The Standards specifically contemplate and permit reliance on earlier allegations in order to verify a risk of harm arising from later allegations, even where the earlier allegations were deemed inconclusive or not verified.

[59] The Standards contain the following definitions:

Inconclusive

Critical information necessary for establishing the probability that abuse or neglect occurred or did not occur, cannot be obtained. This case finding does not mean that the worker has determined that abuse or neglect did not occur, but rather that a lack of information makes it impossible to establish [sic] a balance of probabilities that abuse/neglect occurred or did not.

Not Verified

A decision that, on the balance of probabilities:

• it is not “more probable than not” that the harm or risk of harm has occurred, currently exists, or is likely to occur

• evidence gathered lends weight to the belief that abuse or neglect did not occur.

Verified

A decision that, on the balance of probabilities, it is more probable than not that the harm or risk of harm has occurred, currently exists, or is likely to occur.

[60] Investigations with respect to allegations of physical and/or sexual abuse of a child are conducted pursuant to the Protocol for Joint Investigations of Child Physical and Sexual Abuse which outlines how Toronto Police Services and the four child welfare agencies in Toronto are expected to conduct investigations in a collaborative manner.

Application for Judicial Review

[61] In the Application issued on July 22, 2015, the Applicant asks for extensive relief, most of which is not within the jurisdiction of this court. In oral submissions, counsel clarified that the Applicant’s primary objective is that this court to make an order quashing certain decisions.

[62] As indicated above, pursuant to s. 15(3) of the CFSA, the Respondent investigated an allegation of abuse and made a decision dated March 22, 2011 to verify the allegation of risk of sexual harm.

[63] Pursuant to s. 68(1) the Applicant made a complaint dated November 17, 2011. Pursuant to s. 68(4), the ICRP made a decision dated February 2, 2012 confirming that the verification decision was supported by the information gathered during the investigation.

[64] In a letter dated May 10, 2012 the Respondent provided a detailed explanation. I do not consider that that letter constitutes a decision on the merits. It is not subject to review.

[65] In a letter dated May 23, 2012, a Case Coordinator advised that the CFSRB deemed the matter settled and the Board file was closed. I do not consider that file closure to be a decision on the merits. It is not subject to review.

[66] I consider the letter dated February 9, 2015 to reflect a decision pursuant to s. 68 (because it was the Respondent that conducted the fresh ICRP) or s. 68.1 (because the fresh ICRP came about as a result of an application pursuant to s. 68.1).

[67] In a letter dated February 27, 2015 a Case Coordinator advised that the CFSRB deemed the matter settled and the Board file was closed. I do not consider that file closure to be a decision on the merits. It is not subject to review.

[68] In oral argument, the Applicant confirmed that he was challenging all three decisions, which were really one decision. The Respondent agreed that that was a fair characterization, calling it a process of decision-making culminating in the 2015 decision. I conclude that decisions dated March 22, 2011, February 2, 2012 and February 9, 2015 reflect the exercise of a statutory power of decision as defined by the Judicial Review Procedure Act.

Standard of Review

[69] Counsel for the Respondent pointed out that the courts in Ontario have not previously considered the standard of review applicable to the Respondent’s verification decision following an investigation under s. 15(3) of the CFSA. In the context of reviewing decisions of CASs addressing other issues under the CFSA, courts have applied the standard of reasonableness.[^5]

[70] The factors relevant to a determination of the standard of review are: the presence of a privative clause; the decision maker’s special expertise within a discrete and special administrative regime; and the nature of the question of law.[^6]

[71] Section 68(4) of the CFSA provides that the decision of a Society made upon completion of the complaint review procedure is final and that functions as an effective privative clause to insulate decisions from judicial review. That suggests a standard of reasonableness. I note however, that s. 68(4) probably applies to the decisions dated February 2, 2012 and February 9, 2015 but does not apply to the decision dated March 22, 2011.

[72] In the absence of evidence to the contrary or to a challenge by the Applicant, I accept that the Respondent has special expertise within a discrete and special administrative regime which suggests a standard of reasonableness.

[73] The nature of the question of law is whether, on the balance of probabilities, it is more probable than not that the harm or risk of harm has occurred, currently exists, or is likely to occur. That question of law is equally within the expertise of judges which suggests less deference.

[74] I agree that the standard of review is reasonableness; the issue is the extent to which this court should defer to the decisions made by the Respondent.

[75] The Respondent takes the position that in light of both the finality clause and the expertise of the Respondent in the field of investigating child abuse and neglect, this court should accord the Respondent significant deference with respect to both its investigation process and the results flowing from its investigations. I disagree. The finality clause does not apply to the threshold decision made by the investigator. Furthermore, given the nature of the question of law, significant deference is not appropriate.

[76] A reasonable investigation is characterized by neutrality, thoroughness, the sharing of the nature of the evidence obtained with the parties and an opportunity for the parties to respond to the evidence obtained. The courts will not interfere with an investigative process provided the investigation deals fairly with the fundamental issues. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. [^7]

Analysis

[77] The analysis of the thoroughness and fairness of the investigation begins with the contact at 9:05 a.m. on March 21, 2011.

[78] As indicated above at paragraph 56, one of the mandatory requirements of the Standards is that the investigator examine the physical layout of the setting. In this case, the physical layout of the Day Care was critical to the investigation of the allegations.

[79] Kwan and the police officers met with the Applicant at the Day Care in the late afternoon of March 21, 2011 but she did not tour the premises nor did she make a diagram of the layout of the space before the decision to verify was made.

[80] The decision to verify the allegation was made at some point on March 22. The Applicant sought subsequent reviews and the decisions reflected above were taken and letters with explanations were provided such as the letter dated May 10, 2012. However, nothing that occurred after March 22, 2011 informed the decision made on March 22, 2011.

[81] I cannot identify a time on March 22 when Kwan met with Tilley although, as indicated at paragraph 18 above, all of her prior notes included a time. The only other case note dated March 22 was a call at 2:20 to update Azonwanna in the licensing office. In the absence of contrary evidence, I assume that the joint decision was taken at the end of the business day on March 22.

[82] On that basis, for purposes of this analysis, the investigation into the allegation of abuse started on March 21 at 9:05 a.m. and ended with the decision to verify the risk of sexual harm on March 22 at 4:30 p.m.

[83] Upon receipt of the call at 9:05 on March 21 the response was appropriate: applying the Spectrum and coding the risk[^8]; assigning an experienced Senior Social Worker; immediately reaching out to those who ought to be informed including police and licensing officials; maintaining records of what was done or said; and interviewing the alleged victim and the alleged perpetrator. All of those steps in the investigation were consistent with the Standards.

[84] However, there were many deficiencies in the investigation.

[85] In response to the challenge by counsel for the Applicant on the investigator’s failure to conduct the mandatory steps of interviewing witnesses and examining the premises counsel for the Respondent had three main responses: RZ was credible in her statement that there were no witnesses and therefore it was not necessary to interview others; none of the Day Care staff were interviewed because the investigator assumed none could be trusted to be truthful; and the requirement is that the investigator examine the physical layout within the 30 days allowed for the investigation and Kwan did examine the physical layout when she attended at the Day Care on March 30 and her notes on that occasion contain her diagram.

[86] As indicated at paragraph 57 above, one of the discretionary steps in the Standards is that the investigator examine facility policy and procedures, staffing level and shift patterns, staff training and qualifications, daily routine, and programming. If the investigator followed this discretionary step, the information would have been obtained from those listed in the mandatory interview list and would have led the investigator to have an understanding of the physical layout and the procedures established and implemented at the Day Care.

[87] If the investigator had followed the mandatory step to interview the alleged victim on all of the allegations of touching RZ raised and if the investigator had interviewed staff witnesses, the facility administrator, the supervisor of the alleged perpetrator and if she had followed the mandatory step to conduct a thorough examination of the physical layout of the setting, she would have learned the following:

Touch Baby Allegation

(a) As indicated at paragraph 15 above, RZ made spontaneous comments that she had observed the touch baby incident. This would have been a key subject to investigate on the basis that if RZ was involved in two incidents and observed a third, then all of them should have been investigated before finding her statements credible on the two incidents in which she said she was involved. The case notes and the evidence of Andrews are silent as to why that important third allegation was not investigated.

(b) The room referred to as “babyroom” on the Applicant’s diagram and not included in Kwan’s diagram is used by the school age children from 7 to 9 a.m. and from 4 to 6 p.m. The babies use that room during the day when the school age children are gone. RZ would not have been in the babyroom when the babies were there. She would not have had an opportunity to see “Jim” in the babyroom with babies. That allegation could not have been true.

(c) The Applicant was a Ministry approved assistant teacher for school aged children but not a Ministry approved teacher in respect of nursery age children. Aside from his evidence that he did not work with the babies in 2010-2011, his evidence was that he never changed diapers, even when he was in the nursery program. Furthermore, if he did work in the nursery program, he would not have been alone with a child because there would have been two co-workers assigned to the babyroom who could have provided information corroborating or conflicting with the statements RZ’s mother reported.

(d) Those circumstances make it implausible that that third allegation by RZ could have been true which would have had an impact on her credibility with respect to the two allegations in which she said she was involved.

Office Allegation

(e) At paragraph 32(b) of his affidavit, the Applicant said that the office allegation ostensibly occurred between 4 and 6 p.m. At that time of the day, the Applicant and Sia Stamatis both said that the Day Care is “teeming with life” as the parents go up and down the hallway as well as teachers. They said that there is also an additional stream of unanticipated parents walking up and down the hallway because the Day Care shares its common areas with a swim centre and the swim centre parents who are picking up their children often get confused and walk into the Day Care office looking for their children.

(f) The top half of the wall between the toddler room and the office is glass and the doorway between the toddler room and the office is glass and is always open. There are three toddler teachers in front of the windowed wall between the toddler room and the office. The office is open to the main hallway. There is a security camera in the office that tapes all activity in the office. There is a sign on the office door that warns that all activity in the office is videotaped.

(g) It is implausible that the office allegation could have been true.

Physical layout of the Day Care

(h) In her evidence Sia Stamatis described the strategic positioning of staff and mandatory staff rotations and observed that it is quite a remote possibility that, if an incident did occur, that none of the other supervising teachers would have either seen the incident or the face or reaction of a mortified child.

(i) The investigator did not conduct an examination of the physical lay-out of the premises. The hindsight comment referred to above at paragraph 49 misses the point that the evaluation of the premises was necessary to inform the decision to verify. It is a mandatory step and not an afterthought nine days later. In any event, the sketch made by Kwan was inaccurate and inadequate and did not comply with the mandatory requirement that the investigator examine the physical lay-out of the Day Care.

Street Crossing Allegation

(j) With respect to the street crossing allegation, it allegedly occurred in plain view of all the pedestrians (some of whom are parents of children in the day care) and also neighbours as well as persons on balconies in the adjacent condominiums and apartment buildings. It allegedly occurred at rush hour as the school age children were walking from school to the Day Care and the street would also have been “teeming with people”.

(k) Instead of attempting to identify and interview many of the adults who would have been present and instead of weighing the likelihood of inappropriate touching in the midst of many children and adults, the investigator accepted the statement that there were no witnesses.

[88] All of RZ’s allegations were of events that had occurred in the open; none were secret. Yet in environments in the Day Care and on the street that were “teeming with people”, the investigator accepted, without question, the “credible” description that no one was present or a witness in either the office or the street as the basis for not interviewing anyone else.

[89] As indicated by Andrews at paragraph 75 of her affidavit quoted at paragraph 40 above, she said that the reason for not interviewing staff was because of a concern that the Applicant was a “boss”. In other words, Kwan was concerned about the possibility that the Applicant and his wife might influence the information provided by staff members or the staff members might fear retaliation. Thirteen staff members signed statements that Kwan received on March 25, 2011. She made unsupported and unjustified assumptions about the reliability of the statements of the co-workers and deliberately did not interview any of them. There was no adequate basis for her assumptions as to reliability and truthfulness of the co-workers.

[90] As indicated at paragraph 25 above, the basis upon which Kwan and Tilley made the joint decision was the credibility of RZ’s disclosures and the allegations by GM that had been investigated in 2010. The Standards do allow for reliance on earlier allegations in order to verify a risk of harm arising from current allegations. But that does not mean unquestioned reliance.

[91] The GM touching allegation was originally made in 2009. There is only one record because the Respondent has not located the earlier file. The touching allegation was repeated in 2010 and it was deemed “inconclusive”. As indicated above in paragraph 12, the nature of the touching allegation was unusual and would have required investigation as to whether it was physically possible that it could have occurred. In any event, if the investigator had followed the mandatory step to interview the Applicant, staff witnesses, the facility administrator, the supervisor; and if the investigator had followed the mandatory step to conduct a thorough examination of the physical layout of the setting, the investigator would have learned the Applicant stopped teaching in the nursery program in March 2009 and had no contact with the GM at least a month prior to the events that allegedly took place in April. Furthermore, he had been in Greece in that month on one of his visits to attend to the care of his mother. The investigator would have learned that there were three teachers involved in the care of the babies and a person in the adjacent kitchen in charge of managing snacks for all of the children all of whom had an unrestricted view of the babyroom.

[92] All of those details would have emerged that would have allowed the investigator to determine whether there was any corroboration for the unique touching allegation and to make an informed decision that the allegation was “not verified”. The investigator and the supervisor chose not to follow the mandatory steps or the recommended steps before deciding that the report was “inconclusive”. Because the investigation into the 2010 allegation was so superficial, the results ought not to have been relied on to support the credibility of the 2011 allegations.

[93] There were many serious deficiencies in the conduct of the investigation in 2011. It was not consistent with the mandatory step to interview the alleged victim thoroughly on the third allegation, to interview staff witnesses, facility administrator and supervisor of the alleged perpetrator. It was not consistent with the mandatory step of conducting an investigation of the physical layout of the Day Care, before the decision to verify, which would have informed all aspects of the investigation. The Respondent did not follow the mandatory step in that the report on the investigation dated April 14, 2011 did not provide a rationale for the departure from the mandatory steps nor was supervisory approval given for the departure. It was not consistent with an important optional step namely to examine policy and procedures, staffing level and shift patterns, staff training and qualifications, daily routine and programming, all of which would have informed all aspects of the 2011 investigation as well as the reliance by the investigator on an “inconclusive” decision with respect to the 2010 allegation.

[94] The investigation was superficial, not thorough and did not deal fairly with the fundamental issues. The investigator failed to investigate obviously crucial evidence. The investigation was fundamentally flawed. For those reasons, the decision dated March 22, 2011 to verify risk of sexual harm was not reasonable.

[95] The Respondent conducted two paper reviews anchored on the original flaws. The decisions dated February 2, 2012 and February 9, 2015, both of which confirmed the verification of risk of harm, failed to identify and address the defects in the original investigation and accordingly, were also not reasonable.

[96] The court has a discretion whether to quash a decision. The consequences of the decisions are a relevant factor in deciding whether to exercise that discretion. As a result of the decision to verify the allegation of abuse and the subsequent decisions to confirm the verification, the Applicant has experienced significant repercussions in that he lost his job and he has been prohibited for over 6 years from actively participating in the business of which he is a part owner. On that basis the court should exercise its discretion and quash the decisions dated March 22, 2011, February 2, 2012 and February 9, 2015.

Is the Application for Judicial Review Premature?

[97] Counsel for the Respondent made submissions that the court should not hear this application because it was premature given that the Applicant had not continued the procedure through to a hearing and decision by the CFSRB. However, counsel advised that his client waived reliance on prematurity and counsel for Applicant acquiesced in the waiver. Counsel agreed that this court is not bound by such a waiver.

[98] In Ackerman v. Ontario (Provincial Police)[^9] this court held that, in considering whether to exercise its discretion to grant judicial review before the proceeding of an administrative tribunal is completed the court should identify exceptional circumstances such as where the tribunal clearly lacks jurisdiction to proceed, where the interlocutory decision has determined a particular issue, or where the ongoing proceeding would result in an unfair hearing or a breach of natural justice. In Volochay v. College of Massage Therapists of Ontario[^10] the court held that if an adequate alternative remedy was available, then the court should decline to exercise its discretion absent exceptional circumstances.

[99] I conclude that it is appropriate to proceed with this application for these reasons. First, launching a third request for review by CFSRB was not an adequate alternative remedy. The Applicant had pursued that avenue twice and on each occasion his efforts were sidelined by the Pre-Hearing and Settlement Facilitation Conference and on each occasion he was required to sign a non-negotiable consent. He was not required to seek a third review. Second, as indicated at paragraph 48 above, in the context of his second request for review a “Chart of CAS Departures from CAS Standards” was prepared and the only concession was that reflected in paragraph 49 that, in hindsight, Kwan should have provided a sketch of the layout of the day care earlier but it was of no consequence. Third, the matter has been outstanding for over 6 years with serious consequences to the Applicant. There needs to be a decision on the fundamental issue as to the thoroughness and fairness of the investigation. Last, the Respondent has waived prematurity as the basis to dismiss the application.

[100] Given that the Applicant did not have an adequate alternative remedy, it is not necessary to identify “exceptional circumstances”. However, given my conclusions in paragraphs 93 to 96, exceptional circumstances do exist and the Applicant ought to have resort to the court.

Delay

[101] At the outset, counsel for the Respondent made a preliminary submission that the application should be dismissed for delay. The court declined to deal with it as a preliminary matter.

[102] Over six years have elapsed from March 2011 to this hearing. However, the steps taken in the meantime explain how the Applicant attempted to resolve matters through the statutory procedures. The Respondent was well aware of the Applicant’s continuous commitment to reverse the original decision. There is no issue of prejudice to the Respondent.

Remedy

[103] Given my conclusion that the investigation did not deal fairly with the fundamental issues, and that the decisions to verify and confirm verification were not reasonable, those decisions will be quashed.

[104] As an alternative remedy the Applicant asked for an order in the nature of mandamus requiring the Respondent to follow its investigatory Standards in the performance of a fresh investigation.

[105] Counsel for the Respondent took the position that if the decisions were quashed, the only appropriate remedy would be to remit these issues back to the Respondent with specific directions for further investigation based on whatever concerns the court may have regarding the 2011 investigation. In particular, counsel asked that the court provide direction that the Respondent not attempt to interview RZ or her family again; and that the Respondent not attempt to interview any other child who was attending the Day Care in 2010 or 2011 or their families.

[106] Those requested directions demonstrate that a further investigation would not be productive. The events allegedly occurred in 2009 (in respect of the 2009 and 2010 reports) and in late 2010 in respect of the 2011 report. The child GM was 2.5 years old in 2009 and the child RZ was 9 years old in 2011. The investigations in both cases concluded that the child was credible. It would be pointless to try to obtain reliable information from either of them at this time. There is no evidence whether it would be in the best interests to re-engage either child in the investigation. Under these circumstances, an order in the nature of mandamus is not appropriate; nor is it appropriate to remit the matter to the Respondent with directions.

Conditions imposed by licensing authorities

[107] The order arising from this application will address the decisions of the Respondent. The decision to require that the Applicant be prohibited from attending at the Day Care when children were present is not before this court. However, licensing authorities ought to consider whether there is any basis for the continuing prohibition when the decisions which informed the prohibition have been quashed.

Costs

[108] At the conclusion of the hearing, the court reserved the decision. Counsel for the Applicant asked for costs if successful. Counsel for the Respondent did not ask for costs. Counsel subsequently advised the Registrar that, if costs were ordered in favour of the Applicant, the agreed upon amount was $20,000.

[109] Having been successful, the Applicant is entitled to costs in that amount.

Non-Publication Order

[110] At the outset of the hearing the Respondent asked for a publication ban pursuant to s. 45(8) so that the child involved in the allegation would not be identified. Counsel for Applicant agreed but he then asked that his client’s name be initialized or also subject to non-publication. Counsel for the Respondent pointed out that initializing the name of the Applicant was not contemplated in s. 45 but he did not take issue with the court doing so.

[111] This is not a case in which the Applicant’s identity should be initialized because the matter has been on the public record since June 2015.

ORDER TO GO AS FOLLOWS:

[112] The decisions made by the Respondent dated March 22, 2011, February 2, 2012 and February 9, 2015 are quashed.

[113] The Respondent shall pay costs to the Applicant in the amount of $20,000.

Kiteley J.

I agree _______________________________

Tzimas J.

I agree _______________________________

Matheson J.

Released: November 29 , 2017

CITATION: Stamatis v. Children’s Aid Society of Toronto, 2017 ONSC 7056

DIVISIONAL COURT FILE NO.: 352/15

DATE: 20171129

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kiteley, Tzimas, Matheson JJ.

BETWEEN:

Jim Stamatis

Applicant

– and –

Children’s aid society of toronto

Respondent

REASONS FOR JUDGMENT

Released: November 29, 2017

[^1]: Based on a review of the categories of harm in the Eligibility Spectrum, “H” refers to a risk of harm where the family member is the caregiver. Category “I” refers to risk that a child is likely to be harmed by a community caregiver. If this was an error, it does not have any impact.

[^2]: The Respondent did not communicate the verification decision until March 30, 2011.

[^3]: See footnote 1

[^4]: R.S.O. 1990, c.C.11

[^5]: I. (A.) v. Ontario (Director, Child and Family Services Act) 2005 20791 (ON SCDC), [2005] O.J. No. 2358 (ON SCDC) at para 98

[^6]: Dunsmuir v. New Brunswick, [2008] SCC 190 at para 55

[^7]: Syndicat des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), [1989] S.C.R. 879 at para 33-34; Slattery v. Canada (Human Rights Commission), 1994 3463 (FC), [1994] 2 F.C. 574 (FC) at para 49, 55-58 (aff’d 1996) 205 N.R. 383 (FCA); Bateman v. Canada (Attorney General) [2008] FC 393 at para 27-30

[^8]: See footnote 1 as to the code assigned.

[^9]: 2010 ONSC 910 at para 19

[^10]: 2012 ONCA 541 at para 72 to 80