Licence Appeal Tribunal
Appeal of a Proposal to Revoke a Licence issued by the Director, Child, Youth, and Family Services Act, 2017 dated November 8, 2018 pursuant to the provisions of the Act.
Between:
Camey Group Home Inc.
Appellant
and
Director, Child, Youth and Family Services Act, 2017
Respondent
PRELIMINARY MOTION DECISION AND ORDER
Decision by: Marisa Victor, Member
Appearances:
For the Appellant: Selwyn Pieters, Counsel
For the Respondent: Daniela Bertossi, Counsel
Heard in Writing on: February 20, 2019
REASONS FOR DECISION AND ORDER
Overview
1The appellant, Camey Group Home Inc., operates a children’s residence in Ottawa, Ontario. It appeals the respondent’s Proposal to Revoke a Licence (the Proposal) pursuant to s. 236(1) and s. 264(2) of the Child, Youth and Family Services Act, 2017 (the Act).
2The appellant appeals the proposal on the following basis:
a. It has not infringed any of the articles of the Act as cited in the Proposal;
b. It has been subject to discrimination;
c. It was denied fair and reasonable treatment by the respondent;
d. The respondent has neglected its responsibility to fully corroborate the claims of the Children’s Aid Society of Ottawa (CASO);
e. CASO has unfairly reprimanded the appellant and failed to approve needed services;
f. A third-party individual has made complaints; however, this individual has demonstrated unreasonable and racist tendencies; and
g. Procedural irregularities and contradictory stances by the respondent.
3The respondent proposes to revoke the licence for the following reasons:
a. The manner in which the appellant’s residence is operated is an immediate threat to the health, safety or welfare of children;
b. The activity for which the licence is required is carried on in a manner that is prejudicial to the children’s health, safety or welfare; and
c. The appellant has contravened or has knowingly permitted a person under its control or direction or associated with it to contravene the Act and its regulations.
4The appellant brought a motion at the case conference for:
a. An order that the names of the appellant and witnesses, inclusive of children, be substituted with initials or pseudonyms;
b. That anyone making inquiries about the case shall be advised that the names of the appellant and witnesses are subject to an order protecting their identities;
c. That reference to the appellant and its witnesses' names in any documents before this Tribunal be redacted to protect their identities;
d. That no sealing order is required or necessary; and
e. That a timeline or schedule be fixed for the completion of this matter within 90 days as provided for in s. 201(8) of the Act.
5The respondent opposes the motion in part and seeks the following:
a. That there be anonymization of the name of any child, their parents and relatives in the proceeding, including in disclosure, during the hearing, in transcripts and in any order;
b. That there be no anonymization of the appellant’s name or any other witness;
c. That records of any Children’s Aid Society be sealed such that they will not form part of the record and will be limited in their distribution to the Tribunal, the parties, and expert witnesses;
d. That no information identifying the children in the appellant’s residence be published;
e. That the hearing will not be open to the public during the testimony of any witness testifying in support of any Children’s Aid Society, or in response to the testimony of any employee of any Children’s Aid Society; and
f. That there be no order made regarding timelines as dates have already been set and there is authority to support an extension of the 90-day limit set in s. 266(8) of the Act.
6The openness principle is paramount but can and should be curtailed in certain situations, such as here when it involves personal and sensitive information regarding children. The Licence Appeal Tribunal (the Tribunal or the LAT) has the authority under Rule 13.1 of the Common Rules1 to limit public access to all or any part of any document or record to protect the confidentiality of personal or sensitive information where the interest of the person(s) affected outweighs the openness principle.
7I therefore find that:
a. A confidentiality order to protect the identity and sensitive information of any child referred to in this case is appropriate. The details of that order are set out below; and
b. The request for an order regarding the timelines appropriate for this appeal is denied.
IssuES
8The issues are:
a. Is it appropriate to grant confidentiality orders?
b. It is appropriate to grant a timeline order?
9In order to answer if confidentiality orders are appropriate, I must determine whether there are any significant privacy interests that outweigh the openness principle in light of recent case law regarding openness and administrative tribunals.
10In order to answer if a timeline order is appropriate, I must consider whether the current timetable is on consent of the parties, and if not, the timeliness of the current schedule.
The LAW
LAT Rules
11The LAT may make a confidentiality order pursuant to Rule 13 of the Common Rules. In general, the LAT adheres to the openness principle and this is reflected in the rules. Under Rule 13, a document, such as the Proposal, which starts the proceeding, and evidence filed in a hearing, is normally accessible to members of the public. The rules provide that the LAT may limit a record or make an order not to allow public access when there are intimate personal matters, or other matters, where the interests of any person affected outweigh the openness principle.
CYFS Act and Privacy Rights of Children
12Subsection 87(8) of the Act forbids the identification of a child or the family of a child subject to a child protection hearing. While this is not a child protection hearing, the children placed in the appellant’s residence may be there as a result of such a hearing. I may take this section of the Act into consideration although it may not bind me.
13Subsection 87(4) of the Act establishes a presumption for a closed hearing in child protection matters in order to protect the privacy interests of the child. Again, I may take this section of the Act into consideration although it may not bind me.
Applicability of the Toronto Star Case
14The Ontario Superior Court considered the openness principle as it applies to tribunals in its decision in the Toronto Star v. AG Ontario.2 This case provides additional guidance on how an interest in privacy is to be balanced against the importance of ensuring that hearings, and documents filed at hearings, are open to the public.
15In Toronto Star, the Toronto Star challenged the application of the Freedom of Information and Protection of Privacy Act to administrative tribunals. In his decision, Justice Morgan was required to examine case law to determine whether the openness principle that applies in the courts applies to administrative tribunals as well.
16Justice Morgan found that the openness principle, a constitutional principle, applies to administrative tribunals. As such, the adjudicative record is presumptively open, including exhibits entered into evidence and the dissemination of such records.3 Justice Morgan found, based on the case law, that for the legitimacy of such tribunals their proceedings should be open to the public.4 Therefore, transparency is required for the sake of the integrity of the administrative process.5
Evidence and analysis
1. Confidentiality Orders
17Given the Toronto Star case, I find that there needs to be a significant interest, intimate or other, to outweigh the openness principle such that a confidentiality order is needed.
18I will now consider the appropriateness of a confidentiality order as it relates to:
a. Public identification of any children and their families;
b. Public identification of the appellant’s name and witnesses;
c. Sealing of the records of any Children’s Aid Society; and
d. Closing the hearing during the testimony of witnesses in support of, or in response to, any Children’s Aid Society.
Public Identification of Any Children and their Families
19There is no dispute among the parties that the children at the appellant’s residence, whether they are witnesses or not, have significant privacy interests at stake. As stated by the appellant, “the public interest demands openness, with reasonable modifications where young people are involved.”
20It is agreed that the Proposal and the evidence and submissions at the hearing will need to refer to children at the appellant’s residence placed there by CASO after having been subject of a child protection hearing. Section 87(8) of the Act forbids the publication of information that has the effect of identifying any child who is a witness or participant in such a hearing – this is highly persuasive, if not binding, on this Tribunal. The grounds for such a hearing are highly intimate, personal and sensitive. Other children may have been placed at the appellant’s residence by parents or guardians and the reasons for those placements are also intimate, personal and sensitive.
21Any confidentiality order made, in order to be effective, must protect the identities of the children (whether witnesses or not), their families and any identifying factors such as address, sex, gender, race, medical condition or other. This protection must be extended to any inquiries made of the Tribunal and any media publications on the subject of this case.
22Therefore, there will be a confidentiality order made requiring:
a. The names of any children and their families and any identifying factors associated with a child (such as address, sex, gender, race, medical condition, etc.) are confidential and shall not be disclosed.
b. The names of any child and their families shall be substituted with pseudonyms that do not identify them;
c. That prior to filing with the Tribunal, the parties shall substitute the names of any child and their families with pseudonyms in all documents they intend to rely on at the hearing in this matter;
d. That these same pseudonyms shall be used during the hearing for any child or their family;
e. That these same pseudonyms shall be used in any order or communication issued by the Tribunal;
f. That these same pseudonyms shall be used in any transcripts made by the court reporter;
g. That anyone who makes an enquiry about this case shall be informed that it is subject to this order protecting the confidentiality of any child and their family; and
h. That no one shall publish the names or identifying information of any child referenced in this matter.
Public Identification of the Appellant’s Name and Witnesses
23In practice, before the LAT, the names of appellants subject to a Proposal under this Act are routinely disclosed. In this case the appellant is a corporation that conducts business in an industry that is regulated in the public interest, the care of vulnerable children. This adds to the need for openness. Such openness contributes to the integrity of the administrative process.
24The appellant states that there is a privacy interest at stake, however, no further information is provided as to what that interest is, intimate or other, and what prejudice the appellant might suffer should its name or those of its witnesses be disclosed publicly. Although there is reference to the privacy interests of children, there is no connection made between that and the release of the appellant’s name or its witnesses’ names. In addition, the respondent states that the appellant’s name, and those of its employees, are already in the public domain by virtue of the appellant’s website.
25The appellant has failed to establish a significant interest that outweighs the openness principle. I therefore decline to issue an order requiring the substitution of pseudonyms for the name of the appellant and those of its non-child witnesses
Sealing of the Records of any Children’s Aid Society
26The respondent seeks an order that the records of any Children’s Aid Society will not form part of the record and will be limited in their distribution to the Tribunal, the parties and expert witnesses. The appellant, in its reply, agrees to the proposal with the caveat that the distribution of the records be expanded to that of staff of the Tribunal, counsel and support staff, and potential and lay witnesses.
27The respondent states that the privacy interests of the children are at stake, but does not explain how the records of any Children’s Aid Society, already anonymized, affect that interest.
28The respondent argues that sealing orders have been made in past cases before this Tribunal.6 However, all of these cases predate the Toronto Star case. Furthermore, the appellant, in its notice of appeal, has raised that it was subject to discrimination by CASO. These are significant concerns analogous to the allegations in CBC v. Thunder Bay Police Services Board, 2018 ONSC 5872, where there were allegations of systemic racism in policing Indigenous cases. There the court concluded that it was important for it to consider the extent to which the public can expect openness in administrative decision making. Further, the court stated that when issues of discrimination are raised, it is even more important that every step on the complaint procedure be dealt with transparently.
29Nevertheless, I find that it is expected that large portions of the records of any Children’s Aid Society relied on at the hearing will refer to intimate and personal details of children in the appellant’s residence. As such, redacting the records may not be an efficient use of time, may unfairly delay the hearing and could result in rendering the public portion of the documents unintelligible.
30Therefore, given the consent of both parties, I will make an interim order sealing the records of any Children’s Aid Society record relied on at the hearing so that they can only be disclosed to the Tribunal, parties and experts. If at the conclusion of the hearing, it is possible that relevant portions can be unsealed without jeopardizing the privacy interests of the children, I will be seeking further submissions on whether to order the redaction of these records. Redacted records may then be placed in the Tribunal’s public record so as to comply with the openness principle.
Closing the hearing during the testimony of witnesses in support of, or in response to, any Children’s Aid Society
31The respondent requests an order closing the hearing to the public during the testimony of any witness testifying in support of or in response to the testimony of the employees of the various Children’s Aid Societies. The appellant opposes such an order.
32The respondent relies on ss. 87(4) of the Act which presumes a closed hearing in child protection matters. The respondent also states that these witnesses will address personal and sensitive information of the children and that the disclosure of such information would be harmful to the children. The respondent relies on past Tribunal decisions in Pioneer and Connor Homes, cases that appear to predate the Toronto Star decision.
33The purpose of this hearing is to determine whether the Proposal to revoke the licence of the appellant should be carried out. It is not a child protection hearing itself. While I accept that some testimony from witnesses of Children’s Aid Societies may reference the sensitive and personal information of the children, it is not clear that all of their testimony will relate to the details of the children given the purpose of this case. The respondent has failed to provide evidence that supports the complete closing of the hearing for the testimony of these witnesses is necessary in order to protect that privacy interests of the children.
34Therefore, an order will be made that the hearing will be closed to the public when witness testimony and submissions are required on the subject of personal and sensitive information regarding children placed in the appellant’s residence. If that same witness testifies to other matters, for example regarding interactions with the appellant or its employees, then the hearing shall be opened to the public.
35Counsel will be expected to advise the Tribunal when the witness is going to testify to sensitive information regarding any child so that the hearing can be closed for that portion of the testimony.
2. Timeline Order
36The appellant seeks an order requesting that the hearing be completed within 90 days. In reply, however, it conceded that there was now a schedule in place that was made on consent of the parties and the Tribunal for the disposition of this matter. Further the appellant stated that it would be amenable to discussing a further extension of time on consent for the parties to complete the filing of materials and amendments to the schedule that would not impact the upcoming hearing dates.
37Given the consent of the parties and the Tribunal to the current timetable, I see no basis for a further order regarding timelines.
CoNCLUSION
38On the basis of the reasons above, the motion for confidentiality orders is granted in part, the motion for an order requiring the matter to be disposed of within 90 days is denied.
ORDER
39The Tribunal orders as follows:
a. The names of any children and their families and any identifying factors associated with a child (such as address, sex, gender, race, medical condition, etc.) are confidential and shall not be disclosed.
b. The names of any child and their families shall be substituted with pseudonyms that do not identify them;
c. That prior to filing with the Tribunal, the parties shall substitute the names of any child and their families with pseudonyms in all documents they intend to rely on at the hearing in this matter;
d. That these same pseudonyms shall be used during the hearing for any child or their family;
e. That these same pseudonyms shall be used in any order or communication issued by the Tribunal;
f. That these same pseudonyms shall be used in any transcripts made by the court reporter;
g. That anyone who makes an enquiry about this case shall be informed that it is subject to this order protecting the confidentiality of any child and their family;
h. That no one shall publish the names or identifying information of any child referenced in this matter;
i. On an interim basis and, until the Tribunal orders otherwise, records of any Children’s Aid Society shall be sealed and shall not be provided to anyone other than the Tribunal, the parties and any expert witnesses; and
j. The hearing will be closed to the public when witness testimony and submissions are required on the subject of personal and sensitive information regarding any children and their families. Counsel it required to advise the Tribunal when a witness will be asked to discuss sensitive information regarding any child so that the hearing can be closed.
LICENCE APPEAL TRIBUNAL
___________________________
Marisa Victor, Member
Released: February 20, 2019
Footnotes
- Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the Common Rules).
- 2018 ONSC 2586, (Toronto Star)
- Toronto Star, para 54.
- Toronto Star, para 55.
- Toronto Star, para 63.
- See Reista’s Place v. Director, under the Child and Family Services Act, 2003; Pioneer Youth Services Toronto Inc. (Re) [2007] O.L.A.T.D. No. 475 [Pioneer]; Terrace Youth Residential Services Toronto Inc. c/o Maple Road Residence v. Director, CFSA, 2017; 1392644 Ontario Inc., o/a Connor Homes v. Director, CFSA (2017) [Connor Homes]; and Silver lining Residential Services Inc. v. Director, CFSYA (2017).