Cudley Corner Child Care Centre Vaughan v. Director, Child Care and Early Years Act, 2015 CanLII 81692

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2015-12-10

FILE: 9897/CCEYA

CASE NAME: 9897 v. Director, Child Care and Early Years Act

Appeal from a Decision of the Director made pursuant to s. 37 (1) of the Child Care and Early Years Act, 2014, S.O. 2014, c. 11, Sched.1

Cudley Corner Child Care Centre Vaughan Appellant

-and-

Director, Child Care and Early Years Act, 2014 Respondent

REASONS FOR DECISION ON MOTION

ADJUDICATORS: D. Gregory Flude, Vice-Chair and Nicole Treksler, Member

APPEARANCES: For the Appellant: Symon Zucker, Counsel

For the Respondent: Sandra Nishikawa and Melanie Herbin, Counsel

Heard in Toronto: November 20, 2015

REASONS FOR DECISION ON MOTION

1The Appellant brings this motion before the Tribunal to stay a suspension of its operations arising out of a Protection Order served on it by the Director pursuant to s. 37(1) of the Child Care and Early Years Act, 2014 S.O. 2014, c.11, Sched.1 (the “Act”). The Director opposes the motion.

2Having reviewed the evidence, both the affidavit and witness testimony, and heard the submissions of the parties, at the conclusion of the hearing, the Tribunal gave an oral decision to stay the suspension with fuller reasons to follow. What follows are those reasons.

3There were two issues confronting the Tribunal: Does the Tribunal have the power to stay a suspension arising out of a Protection Order and, if so, should the Tribunal exercise its power in the current circumstances?

FACTS

4On November 5, 2015, an Early Childhood Education student doing a work placement at the Appellant's Centre in Vaughan (the “Centre”) complained to the Children’s Aid Society about the feeding practices in the infant room. The ages of the children in the infant room range from 6 to 18 months. The student alleged that staff were feeding children who were lying on their back, thereby creating a choking hazard, and that the children were restrained and force fed.

5In response to the complaint, a representative of the Director, Program Advisor Mackenzie McLean, and a representative of the Children’s Aid Society visited the Appellant’s Vaughan location on November 12 and reviewed video recordings of staff feeding activities, particularly on three days, November 5, 10 and 12, 2015. As a result of the investigation, Ms McLean formed the opinion that there had been other breaches in the Appellant’s operation, including lack of supervision when a toddler wandered out of the infant room into the hallway, and when one of the staff appeared to replace a bib on a child after the bib had made contact with a garbage container. She noted several occasions when the feeding behaviour was repeated. She then discussed her findings with the Sandeep Singh, owner of the Centre, and with the supervisor on duty at the Centre, Olga Gintsburg. Ms Gintsburg and Ms Singh told Ms McLean that the two employees implicated in the inappropriate activity had been suspended pending further investigation by the Children’s Aid Society.

6Ms Singh was concerned with the impact of the findings on her ability to continue to operate. Ms McLean advised that since the Appellant had taken appropriate steps by suspending the employees there would be no impact as the matter had been addressed. Notwithstanding that reassurance, around 4:00 p.m. on November 13, the Director arrived at the Appellant’s premises and served a Protection Order. She then remained at the premises and served notices of the suspension on parents as they arrived to pick up their children. Shortly after the Protection Order was served, representatives of the press arrived and the matter has received coverage in the newspapers.

7The Appellant operates five child care centres in the GTA. The Vaughan location serves 97 families. This number was subject to some scrutiny by the Respondents. Ms Singh gave numbers of 20 families who have removed their children and 57 who are still prepared to place their children at the Vaughan location. She explained that the lower number is based on available child care slots, not families. Some children spend only part of the week at the Centre such that each available slot may serve the needs of several families. In arriving at the lower number, she counted each slot as a family, despite the fact that it may include two or more families. Should the suspension not be lifted, the remaining families will be forced to place their children elsewhere out of necessity. According to the Appellant, if the Centre remains closed, it will impact not only the families she serves, but also the economic viability of the business.

8In addition to suspending the staff alleged to have engaged in inappropriate behaviour, Ms Singh has also closed the infant care program and will not reopen it until all of the conditions set out in the Protection Order have been satisfied. Many of the conditions involve arranging for staff training. She has contacted numerous people and arranged for training where it is available. Some training, such as CPR, has been completed. Where she has been unable to find a training course, she has been in touch with Ms McLean to seek advice on sources of training. She is committed to fulfilling all of the obligations set out in the Protection Order and, as stated above, has undertaken not to reopen the infant room until the obligations are fulfilled. She will act as supervisor of the Vaughan location herself with the help of Ms Gintsburg. By pure coincidence, Ms Gintsburg’s last day was to be November 13. She is leaving to deal with private family matters, but she will discuss continuing her employment until an experienced new supervisor is found.

ANALYSIS

9The matter before the Tribunal is a motion to stay the suspension of the Appellant’s child care operations at its Vaughan location. It is not a hearing into the merits of the Protection Order itself. Given that the Act is new legislation and that this is the first proceeding to be brought before the Tribunal under it, the Tribunal must first determine if it has authority to grant the relief sought by the Appellant.

10Protection Orders are governed by s. 37 of the Act. The applicable provisions are as follows:

37. (1) If, upon conducting an inspection, a director or an inspector believes on reasonable grounds that there is an imminent threat to the health, safety or welfare of any children for whom child care is provided, the director or inspector shall make a protection order as follows:

38. If the child care is provided at a child care centre, the order,

i. shall order the licensee to stop operating the child care centre until the director is satisfied that the order has been complied with,

ii. shall order the licensee to eliminate the threat by taking any steps set out in the order, and

iii. shall suspend the licence.

(2) A protection order may be made under this section for the purpose of,

(a) eliminating the threat to the health, safety, or welfare of the children; or

(b) protecting the children from such threat.

(8) The protection order is not stayed by an appeal to the Tribunal.

(9) The protection order may be lifted by the director at any time upon being satisfied that it has been complied with.

(10) Subsections 23(8) to (10) and (12) apply with necessary modifications to a hearing before the Tribunal and, for the purposes of clause 23(9)(a), the Tribunal may order that the protection order be continued, with or without amendments, or substitute its opinion for that of the director or inspector.

11Assuming, without deciding, that the Director had reasonable grounds for belief that there was an imminent threat to the children, subsection 37(1) removes any discretion from her. The Director must act in accordance with the subsection and suspend the licence of the child care centre if the Director believes on reasonable grounds that there is an imminent threat to the children. Subsection (8) provides that Protection Orders are not stayed by an appeal to the Tribunal. In enacting this provision the Legislature has addressed the obvious concern that a condition that creates an imminent danger to the health or safety of children must not be allowed to persist just because the child care centre has started an appeal to the Tribunal.

12What the legislation does not fully address is a circumstance where the imminent threat has been eliminated, although subsection 27(9) states that "the protection order may be lifted by the director at any time upon being satisfied that it has been complied with." In the current case, the Appellant has closed the infant room and suspended the staff involved in the allegations. Counsel for both parties agree that the legislation does not specifically prohibit the Tribunal from staying the suspension of a child care centre pending an appeal. Does the absence of a specific prohibition imply that the Tribunal has the power to order a stay?

13The Tribunal is of the view that the absence of a prohibition in the Act does not imply the authority to stay a suspension of a Protection Order. The Tribunal is a creature of statute and its authority flows exclusively from the statutory framework within which it operates. It has no equitable jurisdiction; nor does it have overriding parens patriae powers in child care matters such as those exercised by the superior courts.

14Given that the Act is silent regarding the Tribunal’s power in this instance, the Tribunal has referred to the Legislation Act, 2006 S.O. 2006, c.. 21 Sched. F and the Licence Appeal Tribunal Act, 1999 S.O. 1999, c. 12, Sched. G, for guidance. Section 64 of the Legislation Act, 2006 provides that all legislation is remedial and shall be given such fair and liberal interpretation as best ensures attainment of its objectives. Further, s. 78 gives the Tribunal all necessary ancillary powers to carry out its function. The general provision in s. 78 is echoed in s. 3 (2) of the Tribunal’s own legislation, the Licence Appeal Tribunal Act, 1999.

[15]. In addition to the above mentioned Acts, the Tribunal has also considered its powers under the Statutory Powers Procedure Act R.S.O. 1990 chap. S 22 (SPPA), The SPPA is the legislation which establishes procedures at provincial tribunals including the Licence Appeal Tribunal. Section 2 directs the Tribunal to seek the just, most expeditious and cost effective means of resolving matters before it. Further, s. 16.1 permits the Tribunal to issue interim orders to achieve the objects of section 2.

16In reviewing the body of legislation, the Tribunal has determined that it has all of the powers necessary to ensure a just outcome to any proceeding. The analysis at this point is to determine if the Tribunal has the authority, in appropriate circumstances, to grant an interim stay where the interests of justice require it to do so. It is not focussed on the specific facts of this or any other appeal. Section 2 of the SPPA directs the Tribunal to seek a just resolution of matters before it. It flows from this directive that, if, in the absence of a stay, justice would be denied, the Tribunal may order the stay of a suspension. Any other outcome would frustrate the aim of a just, cost effective and expeditious resolution.

17With respect to the appeal from the Director’s order, the Tribunal notes that s. 23(9) of the Act applies to protection order appeals under s. 37(10). It grants broad powers to the Tribunal to order the Director to take such action as the Tribunal considers he or she should take in accordance with the legislation. The Tribunal may also substitute its opinion for that of the Director. Together with the general provision in s. 2 of the SPPA, and the power of a tribunal to make interim orders, these provisions all point to a power to stay the protection order pending the hearing of this appeal. Further, subsection 23 (12) of the Act provides that appeals to the courts of orders of the Tribunal following a hearing do not automatically stay the Tribunal’s order. The subsection then goes on to give the Tribunal the power to stay its order pending the resolution of the Appeal to the courts. Given that the Tribunal has the power to stay its order after it finds that there is or had been an imminent threat to the health, safety or welfare of a child, it flows that it has such powers when there are only allegations of wrongdoing. Were the Tribunal to find that it could not order a stay in circumstances where the justice of the situation demands a stay, the purpose of the Act would be frustrated.

18While Counsel for the Director did not argue that the Tribunal does not have the authority to stay a suspension under s. 37 of the Act, she did oppose the granting of a stay on the facts. She submitted that, in considering whether to grant a stay, the Tribunal should apply the three part test in RJR - MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, 1994 CanLII 117 SCC; that there is a serious issue to be tried; that irreparable harm will result from the refusal of a stay; and that the balance of convenience favours a stay. The Tribunal accepts this submission. Counsel for the Director submitted further that in a matter involving the public interest, there should be a rebuttable presumption in favour of maintaining the suspension. Given the mandatory nature of the suspension provisions of s. 37 of the Act and the need to protect children any time a threat to their health, safety or welfare is identified, the Tribunal finds merit in this position.

19Counsel for the Director did not accept that there was a serious issue to be tried, but she took no position on the issue. All parties agreed that the threshold is not a high one. The Tribunal finds that the issues in this appeal are serious. The issuance of a Protection Order is a powerful tool in the Director’s arsenal and its use in any situation must withstand scrutiny from this Tribunal on an appeal. The impact on the Appellant is potentially devastating to its business at the Vaughan facility. The evidence largely turns on the video evidence presented during the stay proceeding and the conclusions that might be drawn from it. While viewing the same video footage, the Appellant and the Director seem to come to completely opposite assessments of the events requiring resolution at a full hearing.

20Regarding the irreparable harm, the Tribunal did not hear detailed accounting evidence setting out the economic losses that may be incurred. It heard evidence that those parents who remain committed to sending their children to the Vaughan facility will, of necessity, need to seek other child care places if faced with a lengthy closure. It flows from that fact that the Appellant will suffer severe loss of business that will last beyond the end of the suspension through a period when it attempts to rebuild the confidence of its client base. In addition, strong action by the Director undermines the confidence those parents will have in sending their children to the Appellant. No action lies against the Director for the economic losses, and reputation is fragile and, once lost, difficult to re-establish. The repercussions must be borne solely by the Appellant without redress. In other words, these losses are irreparable.

21In considering the balance of convenience, the Tribunal accepts that the Director moved expeditiously to address a perceived danger to the health and safety of the children at the Vaughan facility. The Director’s decision to close the Centre will be examined in detail at the hearing of this appeal. For the purposes of this motion, the Tribunal has assumed, without deciding, that there was an imminent danger to the children in the Appellant’s care. In the view of the Tribunal, the operative word in s. 37 is “imminent.” Since the Protection Order was served, the Appellant has taken corrective measures to address the Director’s concerns. Chief among these, of course, is the suspension of the two staff members involved and the closure of the infant room. Additionally, in the week since the Order was served, the Appellant has made serious concrete steps towards complying with its terms. Its staff have already had some training, other courses have been booked and there is a serious attempt to find training courses in other areas. The facts do not suggest that any imminent threats remain at the Centre to any of the children in care. In the view of the Tribunal, since there is no imminent threat to any children, the serious and committed remedial efforts of the Appellant tip the balance of convenience in favour of a stay.

ORDER

22Having heard the evidence and submissions of the Parties and having noted the Appellant’s undertaking to keep the infant room closed until it has satisfied the conditions in the Protection Order, the Tribunal orders the Protection Order suspending the Appellant’s child care services at Vaughan be stayed. Pursuant to the Appellant’s undertaking, the infant room at the Centre shall remain closed pending the hearing of the appeal of the Protection Order dated November 13, 2015, or pending compliance with the terms of the Protection Order to the satisfaction of the Director, whichever comes first. The hearing shall commence on January 18, 2016, at 9:30 a.m. at the Tribunal’s Offices, 20 Dundas Street West, Suite 530, Toronto and continue as necessary on January 19.

LICENCE APPEAL TRIBUNAL

_________________________ D. Gregory Flude, Vice-Chair

__________________________ Nicole Treksler, Member