K.D. v. Peel Children’s Aid Society, 2017 ONSC 7392
CITATION: K.D. v. Peel Children’s Aid Society, 2017 ONSC 7392
DIVISIONAL COURT FILE NO.: 435/16
DATE: 20171207
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: K.D., Applicant (Moving Party)
AND:
The children’s aid society of the region of peel, Respondent
BEFORE: L.A. PATTILLO J.
COUNSEL: K.D., in person
Carole Jenkins, for the Respondent
HEARD at Toronto: December 5, 2017
ENDORSEMENT
[1] In March 2013, the Respondent, The Children’s Aid Society of the Region of Peel, placed two children who were Crown Wards (the “Children”) with K.D. and his wife. K.D. and his wife subsequently legally adopted the Children in August, 2015. Since June 2013, K.D. and his wife have been in an ongoing dispute with the Respondent over obtaining full and accurate information about the Children.
[2] On September 9, 2016, K.D. commenced an application for judicial review in respect of a purported decision of the Respondent on March 11, 2016 concerning a request that K.D. made to the Respondent pursuant to Ont. Reg. 464/07 for information concerning the Children (the “Application”)
[3] The Respondent takes issue with K.D.’s characterization that the decision was on March 11, 2016. The Respondent’s position is that the decision was on April 18, 2016 when it submits that it provided the information requested pursuant to Ont. Reg. 464/07.
[4] The issues in the Application are the extent of disclosure required under Ont. Reg. 464/07 and whether, in providing the information, the Respondent complied with Ont. Reg. 464/07.
The Issues
[5] K.D. brings this motion for the following relief:
Requiring the Respondent to file a proper response to K.D.’s Request to Admit;
Requiring the Respondent to file a complete Record of Proceeding;
Permitting K.D. to file an affidavit in support of the Application; and
Permitting K.D. to file a factum of up to 45 pages in length.
[6] At the outset of the motion, K.D. raised a further issue concerning the propriety of paragraph 17 in the Respondent’s affidavit in response to the motion. After brief submissions, I concluded that the paragraph was improper and not relevant to the issues on the motion and ordered it struck. I struck the paragraph in the Respondent’s motion record and noted my order in the margin beside it.
Discussion
a. Request to Admit
[7] On June 14, 2017, K.D. served a Request to Admit in the Application on the Respondent (the “Request”). The Request contains 137 paragraphs. The paragraphs deal with numerous issues including the steps that the Respondent did or did not take in respect of the Children after they were placed in foster care and before they were placed for adoption with K.D. and his wife; issues arising from and after the disclosure meeting with K.D. and his wife that was held on November 4, 2012; failure to disclose specific information about the Children and their birth parents; failure to request and/or provide medical, development and therapeutic records about the Children; redacting hospital records to delete the names of physicians and received dates.
[8] The Respondent provided its Response to the Request on July 4, 2017. The Respondent admitted the truth of the facts in 15 paragraphs and refused to admit the facts in the remainder of the Request with reasons. In particular, for 102 of the paragraphs, the Respondent refused to admit on the ground that the facts sought to be admitted were not relevant to the Application.
[9] K.D. seeks an order requiring the Respondent to either admit or refuse to admit all of the paragraphs that the Respondent refused to admit as not being relevant. He submits that the Respondent’s “not relevant” response is not a proper response for two reasons: first, any question of relevancy should be determined at the hearing of the Application and second, given the allegation in the Notice of Application that the Respondent abused its powers in rendering the decision, the paragraphs are relevant.
[10] While compliance with rule 51.03(3)(b) may be reviewed on an interlocutory basis, the substance of the response ought to be decided by the application or trial judge. See: Glover (Litigation Guardian of) v. Gorski, 2013 ONSC 6578 (S.C.J.) at paras. 22-23. Nor is there anything in the rules or case law that requires the party served with a request to admit to respond regardless of relevance and then have the issue of relevance determined at the hearing or trial. Indeed, such a requirement would defeat the purpose of a request to admit.
[11] Given the issues in the Application together with the paragraphs in issue in the Request, I consider the response of “not relevant” is a proper reason for the refusals as required by rule 51.03(3)(b). The response is not a pro forma response, notwithstanding its repetition. The response identifies each paragraph in the Request to which it applies. Further, I do not consider that an allegation that the Respondent abused its powers in making the decision resolves the question of relevance. That is a question for the Court hearing the Application, as and when it is required to deal with the Request.
[12] For the above reasons, K.D.’s request for an order requiring the Respondent to file a proper response to the Request is denied.
b. Record of Proceedings
[13] The Respondent filed a Record of Proceeding dated June 27, 2017 and a Supplementary Record of Proceeding dated September 25, 2017 which contained additional documents which through oversight were not included in the initial Record of Proceeding.
[14] Section 10 of the Judicial Review Procedure Act, R.S.O. 1990. C.J. 1, Schedule B requires that when served with an application for judicial review of a decision made in the exercise or purported exercise of a statutory power, the person making the decision must file “the record of proceedings in which the decision was made.”
[15] The Respondent has filed an affidavit which states, among other things, that the Supplementary Record of Proceeding “contains the documents upon which Peel CAS relied in answering the request…”
[16] In his factum, K.D. raises a number of reasons why the Supplementary Record of Proceedings was improper. Before me, he submitted that the Supplementary Record of Proceedings is improper in that it does not include a number of Ministry documents, primarily in the 2007 time period, dealing with the production of information in adoptions and obtained by K.D. from a Freedom of Information request; does not include the training materials that the Respondent uses to train the decision makers and contains a document that sets out a policy concerning adoption disclosure which is dated after the decision in issue. K.D. also takes issue with the late delivery of the Record of Proceedings and Supplementary Record of Proceedings by the Respondent.
[17] The documents which K.D. says should be included were not relied upon by the Respondent in reaching the decision complained of. They should not be included. Further, although the adoption policy document has a date after the decision in issue, the Respondent submits that it was included as the policy reflects, for the most part, the practice in place at the time of the decision. I would not exclude it. Nor do I consider that the late delivery of both the Record and Supplementary Record has any relevance to the sufficiency of the Record.
[18] Based on the evidence and the issues on the Application, I am satisfied that the Supplementary Record of Proceedings is complete.
c. Affidavit Evidence
[19] K.D.’s request for permission to file an affidavit in the Application arises because he is a lawyer and is concerned given the rules of professional conduct which provide that a lawyer cannot appear on his or her own affidavit unless permitted to do so. As K.D. is appearing on his own behalf in this Application and clearly is the person most intimately involved, I have no problem with him filing his own affidavit and appearing on the Application. Accordingly, I grant K.D. the permission he seeks.
d. Factum
[20] K.D. requests because the Application raises several complex issues, he be allowed to file a factum of up to 45 pages in length as opposed to the permitted 30 page maximum. K.D. also submits that as a result of a speech impediment which makes him difficult to understand, he feels he can better communicate through written argument.
[21] In my view, the issues are not that complex or K.D.’s speech impediment that severe that a 45 page factum is necessary. The issues can be more than adequately summarized within the Court’s prescribed limit of 30 pages.
Conclusion
[22] Except in respect of permission to file his own affidavit, K.D.’s motion is therefore dismissed for the above reasons.
[23] Rule 68.04(1)(a) of the Rules of Civil Procedure requires that the Application must be perfected within 30 days of the filing of the Record. The Supplementary Record was filed on September 25, 2016. K.D. advises that he can perfect the Application within 30 days. Accordingly, I order that the Application be perfected within 30 days of the date of this endorsement.
[24] The Respondent only opposed the issues of the sufficiency of both its Response to the Request and the Record. It was successful on those issues and is therefore entitled to its costs of the motion which I fix at $3,000 all inclusive. In my view, that amount is fair and reasonable given the issues and the fact that I struck paragraph 17 of the responding affidavit.
L.A. PATTILLO J.
Date of Release: December 7, 2017