1392644 Ontario Inc. o/a Connor Homes v. Director under the Child and Family Services Act, 2015 CanLII 9127

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-01-29

FILE:

9621/CFSA

CASE NAME:

9621 v. Director under the Child and Family Services Act

Appeal from a Notice of Proposal of the Director under the Child and Family Services Act, R.S.O. 1990, chap C. 11, to Refuse to Renew a Registration

1392644 Ontario Inc. o/a Connor Homes

Appellant

-and-

Director under the Child and Family Services Act

Respondent

ORDER

ADJUDICATOR:

D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Appellant:

Andy Hornsby and Robert Connor, Agents

For the Respondent:

Daniela Bertossi, Counsel

Heard by Teleconference:

January 27, 2015

Motion to Extend Time

1The Appellant brings this motion for an order to extend time for filing an appeal from a Notice of Proposal to Refuse to Renew a Licence issued by the Director under the Child and Family Services Act R.S.O. 1990 chap C.11 (the “Act”) on October 21, 2014. The Appellant argues that it was misled in the correct procedures to follow and, despite an intention to appeal, it failed to appeal in a timely manner. At the outset of the hearing, the Tribunal advised the Parties that it intended to consider and apply the four part test for the extension of time endorsed by the Divisional Court in Manuel v. Registrar, 2012 ONSC 1492, namely:

1. The existence of a bona fide intention to appeal;

2. The length of the delay;

3. Prejudice to the other party; and,

4. The merits of the appeal.

The four factors do not represent a series of pass/fail steps but must be considered as a whole. Weaker arguments under one head may be compensated for by stronger arguments under another. They must be balanced with the ultimate goal of the decision maker being to determine if the interests of justice favour the grant or denial of an extension of time.

2The Appellant operates a number of residential homes for troubled youth throughout Ontario. In particular, it has a facility in the Campbellford area that at various times has been licensed to receive troubled young men or women. The last resident left the Campbellford home in September 2012. It has been vacant since that date. The difficulty for the Appellants is that the Act states:

203. (1) A licensee whose licence is revoked or who ceases to carry on the activity for which the licence is required shall deliver up to the Minister the licence and all the records in the licensee’s possession or control that relate to the children to whom services were being provided. [emphasis added]

3The Director takes the position that the Appellant has not carried on the licensed activity for over two years. It has demanded return of the licence and all records, but the Appellant has failed to turn them over. The Appellant’s position is that it is actively seeking residents but, because of a glut of group homes beds in the municipality, it is not getting referrals from local Children’s Aid Societies or other referring agencies. It is currently trying to fill its other facilities before placing youth in this facility.

4The Director served the Notice of Proposal on October 21, 2014. The package included two forms: a Request for a Hearing Form and a Notice of Appeal. The front page of the Notice of Proposal sets out the procedure for making an appeal to the Tribunal:

In order to obtain such a hearing you must within 10 days of the receipt of this notice request such a hearing by completing and sending to me and the Licence Appeal Tribunal the prescribed Forms.

There are two prescribed forms, a Request for Hearing prescribed by s. 69(1) of O/Reg and the Notice of Appeal form prescribed by the Licence Appeal Tribunal. Both of these forms were delivered with the Notice of Proposal and received by the Appellant.

5The Appellant received the package and read the detailed particulars. It made no enquiry into the meaning of “the prescribed Forms.” The particulars end with advice that the Appellant may appeal the Notice of Proposal by delivering a “written request for a hearing.” The wording does not specify the format of the written request or direct the reader to any particular prescribed form. In reliance on this wording, the Appellant completed the form entitled “Request for a Hearing” and forwarded it to the Tribunal and the Director on or about October 30, 2014. It was aware of the Tribunal’s Notice of Appeal form included with the materials, but was of the view that it might relate to a future step in the appeal process. In late November, the Tribunal advised the Appellant of its defective appeal and the Appellant took steps to correct the deficiency.

6Despite the Director’s position that the Appellant failed to complete the Notice of Appeal because it never really intended to appeal the Notice of Proposal, the Tribunal is satisfied that the steps taken by the Appellant show a clear intention to appeal within the ten days set out in the Act. It might have made more in depth enquiries, but its failure to do so do not negate the prompt manner in which it took steps to advance its appeal. The error was pointed out by the Tribunal in a letter dated November 28, 2014, received by the Appellant on December 2nd and the Notice of Appeal together with a Notice of Motion to Extend Time was filed on December 8th. The Appellant responded expeditiously when the error was pointed out to it, such that the delay was not overly lengthy.

7The Appellant states that it will suffer severe prejudice if the Tribunal does not permit an extension of time. According to the Appellant, it will lose its municipal authority to operate the home. Because of an excessive number of group homes in the area, the Municipality of Trent Hills will not issue new licences. In short, if it loses this licence, the facility will close permanently. The Director asserts that there is an ongoing duty to supervise any licensed facility. It places a heavy cost on the public purse to supervise an empty facility. Overall, notwithstanding the lack of evidence about municipal licensing standards, the Tribunal is satisfied that the Appellant’s exposure to prejudice outweighs the needs of the Director to supervise the Appellant, especially if the Tribunal were to make it a condition of the stay that the Appellant not accept any residents in the home pending the outcome of the appeal.

8It is a consideration of the merits of the appeal that causes the Tribunal the greatest difficulty. Given the wording of the s. 203 of the Act, the Tribunal can see no merit in the Appellant’s argument. The analysis at this stage is not to look at the merits in depth. It is simply to determine if there are grounds, which if accepted by the member hearing the appeal, may result in success for the Appellant. It is not disputed that the facility has been empty for two years. It is admitted by the Appellant that it currently intends to fill its other homes before utilizing this one. It is further admitted that no agencies are currently referring children in need to this facility and that there is a glut of beds in the area at present. The Appellant’s position appears to be that s. 203 should not apply to it. It would like to remain licensed just in case it finally attracts referrals from appropriate agencies. With no prospect of change in sight, the Tribunal must conclude that the appeal is without merit.

ORDER

9Having considered the submissions of the parties and the material filed, the Tribunal concludes that the overall justice of the matter requires it to dismiss the Appellant’s motion to extend time for filing its appeal.