Marianne Cuhaci v. The Ontario College of Social Workers and Social Service Workers, 2019 ONSC 1801

Cuhaci v. College of Social Workers (Ontario), 2019 ONSC 1801

CITATION: Cuhaci v. College of Social Workers (Ontario), 2019 ONSC 1801

DIVISIONAL COURT FILE NO.: 590/17

DATE: 20190320

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MULLINS, MYERS AND FAVREAU JJ.

B E T W E E N :

MARIANNE CUHACI

Applicant

– and –

THE ONTARIO COLLEGE OF SOCIAL WORKERS AND SOCIAL SERVICE WORKERS

Respondents

Lisa E. Hamilton for the Applicant

Jill Dougherty for the Respondents

HEARD: February 25, 2019

FAVREAU J.:

Introduction

1The applicant seeks judicial review of a decision of the Complaints Committee of the Ontario College of Social Workers and Social Service Workers, made on April 27, 2017, with an Addendum to Decision and Reasons made on September 6, 2017.

2In its decision, the Complaints Committee dismissed the complaint made against the applicant, but included advice about the clarity of the applicant's future professional communications.

3The applicant seeks to quash the Complaints Committee's decision on a number of grounds, including arguments that the Committee should have found that the complaint was an abuse of process, that the Complaints Committee's advice will make it impossible for her to perform her duties in the future and that she was not afforded procedural fairness.

4For the reasons that follow, we agree with the respondent that the issues raised on the application for judicial review are moot.

Background facts

5The applicant is a registered member of the College. She is also qualified and trained as a parenting co-ordinator, mediator and arbitrator for the purpose of performing mediations and arbitrations under the Family Law Act, R.S.O. 1990, c. F.3.

6In 2015, the applicant was appointed to act as a parenting co-ordinator, mediator and arbitrator with respect to a custody and access dispute. The parents involved in the dispute signed an agreement, which in accordance with section 45(3) of the Arbitration Act, S.O. 1991, c.17, provided that an arbitration award made by the applicant could be appealed to the Superior Court on a questions of law, fact or mixed fact and law.

7The Family Court judge supervising the matter also made an order imposing various responsibilities on the applicant, including the following:

a. To coordinate efforts to reunify the mother with the child as practically soon as possible;

b. To ensure that the child had meaningful relationships with both parents as soon as practically possible;

c. To make decisions focused on the child's best interests;

d. To give the child a voice in the decision making process;

e. To make decisions regarding all parenting issues in the child's best interests; and

f. To reduce the conflict between the parties.

8The issues in the family law dispute included allegations that the father had alienated the teenage daughter from her mother. The expert evidence in the case included a report prepared by Dr. Worenklein, a psychologist appointed pursuant to section 30 of the Children’s Law Reform Act, R.S.O. 1990. C.12, who gave an opinion that the child was "a victim of moderate to severe parental alienation". In his report, Dr. Worenklein recommended that the child initially live with her mother, and that the parties gradually move toward a shared parenting arrangement. Another report prepared by Dr. Leonoff, also a psychologist, provided the opinion that the child had chosen to forge an allegiance with her father as a way to avoid being caught in the crossfire of the conflict between her parents. Dr. Leonoff recommended that the child should be encouraged to live with her mother, but not forced to do so.

9In addition to the terms referred to above, the Family Court judge's order required that the applicant "consider" a number of matters in making any decision, including Dr. Worenklein's report and the verbal or written input of Dr. Worenklein and Dr. Leonoff.

10On September 4, 2015, the applicant issued an interim arbitration decision, providing that the child was to reside primarily with her father with monthly visits to her mother. In her decision, the applicant indicated that she had consulted with Dr. Worenklein and Dr. Leonoff, and she also stated that her decision was consistent with Dr. Worenklein's advice. The parties to the family law proceeding did not appeal the arbitration decision to the Family Court judge.

Complaint against the applicant

11On April 6, 2016, the College received a written complaint from the child's stepfather, who was the long-time partner of the child's mother.

12The complaint raised two clusters of issues. First, the stepfather alleged that the applicant had mishandled the case by failing to properly consider Dr. Worenklein's report, which he asserted she was required to do by the Court’s order. Second, the stepfather claimed that the applicant's attitude toward him and the mother was dishonest, manipulative and arrogant.

Complaints Committee's process

13The College is a regulatory body that handles professional practice complaints made against its members in accordance with the provisions of the Social Work and Social Service Work Act, 1998, S.O. 1998, c. 31. The Complaints Committee is a statutorily created screening body within the College that considers and investigates written complaints, and determines whether they should be referred to the Discipline Committee or the Fitness to Practise Committee. The Complaints Committee does not decide the ultimate merits of a complaint, but rather screens complaints to determine whether they should proceed further.

14Section 24(1) of the Social Work and Social Service Work Act requires the Complaints Committee to investigate all complaints it receives. However, section 24(2) of the Act provides that the Committee “shall refuse to consider and investigate" a complaint if the Committee forms the opinion that: a) the complaint does not relate to professional misconduct, incompetence, or incapacity on the part of a member of the College; or b) the complaint is frivolous, vexatious, or an abuse of process.

15Section 24(3)(b) of the Act provides that no action is to be taken by the Complaints Committee without first providing notice to the member whose conduct is being investigated and that the member is to be given at least 30 days to make submissions in response to the complaint. Pursuant to section 24(4) of the Act, the notice must include "reasonable information about any allegations contained in the complaint".

16Section 24(3)(c) of the Act directs that the Committee may take action in relation to a complaint only after it has examined all the information and documents relevant to the complaint. Pursuant to section 24(5) of the Act, upon completion of its examination, the Committee’s powers include a) directing the matter in whole or in part to the Discipline or Fitness to Practise Committee, b) directing that the matter no be referred, c) cautioning the member, or e) taking any other action it considers appropriate in the circumstances.

Complaints Committee's decision and review decision

17In this case, the applicant was given notice of the complaint, and did provide a written response. In her response, she argued that the Complaints Committee should find that the complaint was an abuse of process because the complainant was not a party to the family law proceedings and because the parties to the arbitration had not appealed the applicant’s decision to the Family Court.

18On April 28, 2017, the Complaints Committee issued a decision directing that the complaint was not to be referred to the Discipline Committee. As part of its decision, the Committee stated that it had considered whether the complaint was "frivolous and vexatious" and concluded that it was “not satisfied that the complaint is, on its face, so lacking in merit, or the possibility of a legitimate outcome, or that it was made for an improper purpose, that would justify the committee refusing to consider it. We therefore believe that we have jurisdiction to consider the complaint.”

19The Committee then reviewed in some detail the two clusters of complaints made by the stepfather.

20With respect to the complaint that the applicant did not follow Dr. Worenklein's advice, the Complaints Committee reviewed the applicant's decision and the Family Court's direction, and concluded that "it could not be proven that the Member's failure to implement Dr. Worenklein's recommendations could be found to be professional misconduct by the Discipline Committee. Therefore, we will take no further action concerning this issue." The Committee went on as follows:

The Committee's conclusion should not be interpreted to mean that the Committee believes that the Member's decision to allow XXXX to continue living with her father was necessarily the "correct" or "best" decision in the circumstances. Rather, it means that the Committee does not believe that the Member's decision could be proven to have fallen below the minimum practice expectations of a social worker that are set out in the Professional Misconduct Regulation and the Code of Ethics and Standards of Practice. The Committee has no jurisdiction or expertise with respect to child custody matters, and leaves those matters to the Family Court of Ontario, which does…

21With respect to the complaint that the applicant's attitude toward the complainant and the mother was inappropriate, the Complaints Committee found that this aspect of the complaint was also largely aimed at the applicant's decision not to follow Dr. Worenklein's recommendation, which the Committee indicated it had already dealt with under the first cluster of issues. The Committee also considered and dismissed as without merit an allegation that the applicant was untruthful in her decision when she stated that she consulted with Dr. Worenklein. The Committee then went on to consider what it saw as an ambiguity in the applicant’s decision which is the statement that her conclusion should not be seen as contradicting Dr. Worenklein's recommendation. The Committee made the following comment in addressing this apparent ambiguity:

We consider it unfortunate that the Member did not attempt to clarify this issue in response to the complaint, and believe the statement above would be considered at least ambiguous, if not a breach of Principle II. We appreciate that, from the perspective of the Complainant and Ms. XXXX to learn that the Member had, in their view, decided to leave XXXX with her father after he had alienated her from her mother, a decision they may regard as rewarding him with bad behaviour, and then to read that the Member claims she has not contradicted the assessment of the psychologist who identified parental alienation and recommended XXXX be returned to her mother, would be upsetting. In our view, the Member ought to have considered her ambiguous statements might have been interpreted that way.

22Ultimately, based on this apparent ambiguity in the applicant's decision, the Complaints Committee, while dismissing the complaint, provided advice to the applicant about the clarity of her communications:

Despite that, since we do not believe that the Member had an obligation to implement Dr. Worenklein's recommendation, her claim that her decision was consistent with his views, even if without foundation, was not essential to her decision to allow XXXX to remain living with her father. If the Member behaved as alleged, the most significant consequence would appear to be adding somewhat to the upset of the Complainant and Ms. XXXX over the Member's custody decision. In our view, the possibility that the Member added somewhat to the Complainant's upset does not warrant adjudication at a disciplinary proceeding. Rather, we believe the public interest can be appropriately served by advising the Member to reflect on the Committee's comments and make efforts to ensure that her professional communication is clear and unambiguous, especially in high-emotion and high-conflict situations, to avoid unnecessary upset and conflict.

23The concluding paragraph in the decision states that, "as with all complaints received by the College", the information relating to the complaint, including the decision, is to be kept in the applicant's file and may be considered in the event of future complaints.

24Following the release of the Complaints Committee's decision, the applicant indicated that there were communications from the complainant referred to in the decision that she had not had an opportunity to review. She was then provided with copies of these communications and given an opportunity to make further submissions, after which the Complaints Committee released an addendum to its initial decision on September 6, 2017. The addendum stated that, having reviewed the additional submissions and information, the Committee's conclusions about the complaint remained the same.

Issues raised on the application for judicial review

25The applicant seeks to quash the Complaints Committee's decision, making the following arguments:

a. The Complaints Committee did not follow the process mandated by section 24(2) of the Social Work and Social Service Work Act, which she claims required the Committee to consider whether the complaint was frivolous, vexatious or an abuse of process before engaging in any type of investigation or analysis;

b. The Complaints Committee's advice falls outside of its jurisdiction and puts the applicant in an impossible position; and

c. The Complaints Committee was procedurally unfair because it relied on submissions from the complainant that had not been provided to the applicant before the initial decision was issued.

26The respondent argues that there is no merit to the issues raised by the applicant. In addition, the respondent, argues that the issues raised on the application for judicial review are moot because the complaint was not referred to the Discipline Committee and the advice contained in the decision is non-binding and not public.

Jurisdiction of the Court

27The Court has jurisdiction to hear this application pursuant to s. 2 and s. 6(1) of the Judicial Review Procedure Act, R.S.O. 1990 c. J.1.

Mootness

General principles

28In Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, at 15, the Supreme Court described the doctrine of mootness as follows:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.

29The Court went on, at para. 16, to prescribe a two stage analysis in circumstances where a case may be moot:

16 The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.

Whether there is a live controversy in this case

30In our view, the issues on this application are clearly moot.

31The applicant claims that the Complaints Committee did not follow the process mandated by section 24 of the Social Work and Social Service Work Act. Section 24(2) of the Act provides that "the Complaints Committee shall refuse to consider and investigate a written complaint if, in its opinion … the complaint is frivolous, vexatious or an abuse of process". The applicant argues that the language of this provision is mandatory, and that it requires the Committee to approach its task in two stages. First, the Complaints Committee must decide whether a complaint is frivolous, vexatious or an abuse of process. Only if the Committee decides not to dismiss the complaint pursuant to section 24(2) of the Act can the Committee then embark on its investigation, at which point the member is to be given an opportunity to make submissions on the merits of the complaint. The applicant argues that, in this case, the College conflated the two steps in this process by deciding that the complaint was not frivolous and vexatious in the same decision in which it decided that there was nevertheless no basis for referring the decision to the Discipline Committee. She argues that the effect of this alleged conflation is that she did not have a chance to make submissions on the merits of the complaint after the Committee decided that the complaint was not frivolous or vexatious.

32Regardless of whether there is any merit to this position, the issue is clearly moot. The outcome of the Complaints Committee's consideration and investigation of the complaint is that it was not referred to the Discipline Committee.

33There are a number of decisions in British Columbia where the Courts have dismissed applications for judicial review as moot where disciplinary investigations did not lead to disciplinary action. For example, in Zuchiatti v. The College of Dental Surgeons of British Columbia, 2013 BCSC 1736, the Supreme Court of British Columbia dismissed as moot an application for judicial review where there had been extensive delay by the College in communicating with its member during the course of an investigation. In finding that the application was moot, the Court, at paras. 29 to 31, made the following findings:

29 Complaint investigations by professional regulating bodies cause professionals under investigation considerable stress. The inordinate delay in pursuing the investigation combined with the College's failure to keep Dr. Zucchiatti informed throughout the investigative process undoubtedly exacerbated his stress. However, the fact remains that the investigation is complete and there is no jeopardy to Dr. Zucchiatti's licence or any other rights, powers, privileges, immunities, duties, liabilities or his eligibility to receive or to continue to receive, a benefit.

30 As counsel for the College points out, Dr. Zucchiatti remains entitled to practise dentistry and the complaint is closed without further action whether his petition for judicial review is not heard, his petition is heard and he is unsuccessful, or his petition is heard and he is successful. I can think of no better description of a moot question.

31 There is little risk of damage to Dr. Zucchiatti's professional reputation, as the College's investigation is not a matter of public record. Although the F.G. complaint and the investigative outcome will remain on Dr. Zucchiatti's professional record with the College, this is not enough to overcome the doctrine of mootness.

34Ultimately, in Zuchiatti, at para. 33, the Court held that the fact that the complaint would remain on the member's record and may affect subsequent disciplinary proceedings was "too remote and speculative to make this a live issue"; see also Ridsdale v. Anderson, 2016 BCSC 942 (Sup. Ct.), at paras. 85-86; and Maroofi v. College of Physicians and Surgeons of British Columbia, 2017 BCSC 1558 (Sup. Ct.), at paras. 82-84.

35In this case, as in the cases referred to above, the investigation no doubt caused the applicant considerable stress. However, the process is now complete, and her licence is not in jeopardy nor is it subject to any restrictions. The advice provided by the Complaints Committee was non-binding and not meant to be public. While the complaint and decision will remain in her file, as in Ridsdale, the impact this may have in the future is entirely speculative.

36The applicant relies on the paragraph in the decision that states that the complaint and decision will remain in her file, and that they may be taken into consideration if there are future complaints against her. During argument, counsel for the College confirmed that the College keeps a record of all complaints made against its members, and there is nothing unique or that will cause any greater jeopardy to the applicant in the circumstances of this case.

37During argument, the applicant's counsel also argued that the application is not moot because the advice provided by the Complaints Committee is untenable. In making this submission, she focused on the portion of the decision in which the Committee stated that it was unfortunate that the applicant did not use her response to the complaint as an opportunity to clarify what it saw as an ambiguity in her decision. The applicant's counsel argued that, complying with this suggestion, would require the applicant to provide clarification about an arbitration decision to someone who is not a party to the arbitration, and that the complaints process would require her to keep this clarification confidential, which means that the parties to the arbitration would not be privy to the clarification.

38We see no merit to this concern. The suggestion that the applicant could have used the complaints process to clarify her decision does not form part of the advice portion of the Complaints Committee's decision. The advice arises from language in the arbitration decision, and appears to be aimed at the applicant’s professional communications more generally. The advice is not directed at how the applicant responds to complaints. While the applicant may be correct in her concern that it would be odd for her to provide clarification about a decision to someone who was not a party to the arbitration, the Complaints Committee’s decision does not in any way require her to do so or even create an expectation that she do so in the future.

39While not pressed during the argument, the applicant’s factum also alleges procedural fairness defects in the Complaints Committee’s decision making process. In particular, she claims that the Committee relied on submissions from the complainant she had not received and that the Committee had not considered some of her submissions. These deficiencies were cured when the applicant was given a chance to make further submissions after the initial decision was issued. In any event, given the outcome of the complaint, these alleged procedural deficiencies do not give rise to a live controversy.

40Accordingly, the issues raised by this application for judicial review are moot. The applicant still has a license to practice as a social worker, and there are no conditions or restrictions on her license. She faces no professional jeopardy as a result of the outcome of this complaint.

Whether the Court should exercise its discretion to decide a moot case

41As reviewed above, even if the application is moot, this Court retains the discretion to decide the issues that arise in the case.

42In Ontario (Provincial Police) v. Thunder Bay (City) Police Service, 2015 ONCA 722, at paras. 31-32, the Court of Appeal discussed the matters that a court should consider in deciding whether to exercise its discretion to hear a moot case:

31 The formulation of guidelines for the exercise of discretion in departing from the usual practice is informed by an examination of the rationalia underlying that practice. To the extent that a particular foundation for the practice is either absent or its presence tenuous, the reasons for adherence to the practice disappear or diminish. An examination of the authorities does not yield a neat set of criteria: Borowski, at p. 358.

32 Three basic rationalia underpin the mootness doctrine:

i. that a court's competence to resolve legal disputes is rooted in the adversary system that helps guarantee that issues are well and fully argued by parties who have a stake in the outcome;

ii. the concern for judicial economy; and

iii. the need for the court to demonstrate an awareness of its proper law-making function and the limits of that function so as to avoid intrusions into the role of the legislative branch: Borowski, at pp. 358-62.

43At paragraph 36, the Court went on to state that consideration of these factor is not mechanical, rather “a court should consider the extent to which each of the three distinct rationalia for the mootness doctrine is present”.

44While the applicant's counsel vigorously argued that the application was not moot because of her claim that the decision remains prejudicial to her client, she did not argue that we should hear the application even if we found that it was moot.

45We nevertheless find it worth commenting on why this is a case that does not warrant judicial intervention.

46Setting aside the first and second rationale that may or may not militate in favour of deciding a moot case, the third rationale may have led us to consider intervening in this case had counsel for the College not made an important concession during the hearing.

47The focus of the complaint against the applicant was the interim arbitration decision. In the first cluster of issues considered by the Complaints Committee, as reviewed above, the Committee ultimately held that it did not have jurisdiction or expertise to deal with matters of child custody that fall within the Family Court’s jurisdiction. However, in the course of reaching this conclusion, the Complaints Committee did consider whether the arbitration decision was in accordance with the Family Court’s order, and suggested that it may have had authority over the complaint if the applicant had failed to comply with the order. In the second part of its decision, despite the Committee’s acknowledgment that it did not have jurisdiction to consider the merits of the arbitration decision, it nevertheless went on to consider and make findings about the wording and substance of the applicant’s decision. The Committee's advice, albeit not binding and not meant to be public, was ultimately directed at the clarity of her decision.

48In our view, while the applicant did not explicitly focus her application on the Complaints Committee's authority to investigate the conduct, outcome and wording of an arbitration decision mandated by a Family Court process, this is in fact an important issue and it may have significant ramifications for the role of social workers engaged in court mandated arbitrations.

49However, two factors have influenced our decision not to exercise our power to decide the case.

50First, during argument, counsel for the College conceded that the Complaints Committee may have overstepped in this case, and that the College does not have jurisdiction to investigate the decision making process of a social worker engaged in the functions of an arbitrator in the context of family law proceedings. She argued that there may be circumstances that would warrant the College's intervention, if for example the member had an intimate relationship with one of the parties, but she agreed that the decision making process and the decision itself do not fall within the College's jurisdiction.

51Secondly, as reviewed above, the applicant's arguments were not focused on the issue of jurisdiction or the issue of deliberative secrecy, and therefore the Court does not have the benefit of full argument on the issue.

52In any event, this is not an elusive issue. It may well arise in the future, and can be argued on a full record at that time.

53We therefore decline to exercise our discretion to decide the issues raised on this application.

Conclusion

54In conclusion, the application is dismissed as moot.

55At the end of the hearing, the parties advised us that they had agreed that the successful party on the application should be entitled to costs in the amount of $7,500. Despite this agreement, given the College's admission that the Complaints Committee overstepped in providing advice about how the applicant writes arbitration decisions, we find that this is an appropriate case for no costs.

FAVREAU J.

I agree _______________________________

MULLINS J.

I agree _______________________________