Date: 2021-02-23

Appeal from the Notice of Changes to Licence #6820 by the Director, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1

Between:

Frank Lo Greco o/a Therapeutic Community Care

Appellant

-and-

Director, Child, Youth and Family Services Act, 2017

Respondent

DECISION AND ORDER RE ADJOURNMENT

ADJUDICATOR: Joanne E. Foot, Member

By Written Submissions

Reason for Decision and Order

1This is a motion to adjourn the appellant’s appeal to the Tribunal until after a related matter is heard and decided by the Divisional Court.

Background

2The appellant holds a licence to provide residential care issued under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “Act”).

3By letter dated October 9, 2020 (the “Notice”), the respondent imposed a limit on the number of children that the appellant is permitted to have in its residential care program (the “Cap”) and imposed conditions on the appellant’s residential care licence (the “Conditions”). The respondent issued an amended licence dated October 9, 2020 reflecting these changes.

4The appellant filed a Notice of Appeal dated October 19, 2020, appealing both the Cap and the Conditions.

5Subsequently, it became apparent that the appellant could appeal the Conditions to the Tribunal¹, but that the remedy for the imposition of the Cap was an application for judicial review to Divisional Court².

6On November 18, 2020, the appellant commenced an application for judicial review to the Divisional Court requesting that the Cap be removed from the appellant’s residential care licence. This proceeding is to be heard on June 2, 2021.

7At the case conference on December 14, 2020, the appellant requested that this matter be adjourned until after the Divisional Court renders its decision. The respondent opposes the requested adjournment. The parties agreed that the hearing dates previously scheduled should be vacated pending resolution of the adjournment issue.

8By Notice of Motion dated January 14, 2021, the appellant brought a motion to adjourn the appeal of the Conditions to the Tribunal until after the Divisional Court adjudicates upon the Cap. Each of the parties have made submissions in this respect.

Result

9For the reasons that follow, I decline to grant the requested adjournment.

Law

10It is well-established that the granting of an adjournment is a matter falling within the discretion of the court or administrative body adjudicating the matter.³

11In exercising this discretion, the Tribunal must consider the individual circumstances of the case, the issue involved, whether the request is in accordance with the Tribunal’s practices, and whether procedural fairness requires an adjournment in order to permit an adequate hearing to be held.⁴

Analysis

Legislative Provisions

12It is first helpful to consider the relevant provisions of the Act. Section 255(1) of the Act permits a Director appointed under the Act to impose conditions on a residential care licence at any time. Section 265(1) of the Act permits an appeal of such imposed conditions to the Tribunal.

13Section 259(1) of the Act permits a Director to “set out in the licence the maximum number of children from whom residential care may be provided by the licensee”. However, an appeal from this action by the Director is only permitted if authorized by regulations made under the Act. Section 260 reads “if authorized by the regulations, a licensee may … require a review by the Tribunal of … the maximum number of children set out in a licence under section 259 …” The regulations made under the Act do not provide for an appeal to the Tribunal of the maximum number of children permitted under a residential care licence. As a result, the review of a decision by a Director under the Act to impose a maximum number of children in residential care must be made by the Divisional Court.

14This is an unexpected, perhaps even surprising, situation. The Act gives a Director power to impose conditions on a licence and to impose a maximum on the number of children permitted to be in the care of a licensee. These restrictions on the licensee are contained in the same licence. Yet the Act provides separate and distinct remedies for these different types of restrictions contained in the single licence. It will often be the case that the same facts underlie the imposition of both types of restrictions on a residential care licence. As a result, one might reasonably expect that appeals of both these types of restrictions would be heard in the same forum.

15The wording of the Act does not hint at the reason behind this bifurcation of remedies. However, the legislation refers to the possibility that the Tribunal be empowered to hear appeals of the maximum number of children in residential care if authorized by the regulations under the Act. Given this specific reference to the regulations, one can conclude that the bifurcation of remedies is a deliberate choice on the part of the legislature. That is, it is within the contemplation of the legislature that parallel remedial processes may exist and may be pursued simultaneously.

16This intention of the legislature informs the balance of this analysis. Said another way, I am required to respect the legislature’s clear intention that different remedies be provided for these two types of restrictions on a residential care licence. It may well be that the requirement to pursue parallel remedial processes results in unfairness or prejudice to the appellant. However, any such unfairness or prejudice is part of the design of the legislation and not borne of the choices made by the Tribunal in managing the proceeding. The Tribunal does not have the inherent jurisdiction of a court, and its jurisdiction is limited to that conferred upon it, expressly or impliedly, by statute.

Public Interest in Efficiency

17Administrative tribunals are designed for the expeditious resolution of disputes. It is generally understood that delays or interruptions to that process are to be avoided. Said another way, there is a public interest in timely conduct of proceedings before an administrative tribunal.

18This principle can be seen in Rule 16.1 of the LAT Rules⁵ which provides that “[a] request for an adjournment of a … hearing must be in writing, be served on the other parties, and shall include … [a]t least three alternative dates, within 30 days of the … hearing date to be adjourned …”. [Emphasis added]. The LAT Rules clearly contemplate short adjournments, the intention being that disputes are adjudicated expeditiously.

19This principle is also embodied in the Statutory Powers Procedure Act, R.S.O 1990, c. S.22 (the “SPPA”). Section 2 reads as follows:

This Act, and any rule made by a tribunal under subsection 17.1 (4) or section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits. [Emphasis added]

20The adjournment requested represents a significant delay, being about six months between the originally-scheduled first day of the hearing and the date scheduled for the Divisional Court proceeding. The delay could be longer depending upon the length of time taken by the Divisional Court to release its decision.

21An adjournment of this duration is not consistent with the principle that administrative matters be completed expeditiously.

Adjournment Required for an Adequate Hearing

22Procedural fairness requires that the parties who appear before the Tribunal receive a fair hearing. Each is entitled to receive proper notice of the case it has to meet and to have a fair opportunity to present its case. There are instances where procedural fairness requires an adjournment in order to permit an adequate hearing to be held. Section 21 of the SPPA codifies this principle as follows:

A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held.

23In this case, the appellant has not asserted any particulars as to why an adjournment is required in order to permit an adequate hearing to be held. For instance, there is no suggestion that the appellant does not have full particulars of the case it must meet or that there is any evidence required for a hearing on the merits that is not currently available. Similarly, there is no assertion that the appellant is unable to participate meaningfully in the hearing process at this time. In the absence of the existence of this type of circumstance, it is not possible to find that an adjournment is required to permit an adequate hearing on the merits.

24The requested adjournment is not necessary to permit an adequate hearing on the merits.

Prejudice to the Appellant

25The appellant asserts, in effect, that the necessity of parallel proceedings at the Tribunal and the Divisional Court is unfair and that an adjournment will relieve this unfairness. In particular, the appellant asserts that:

a. there is significant overlap between the issues to be adjudicated by the Tribunal and the Divisional Court;

b. an adjournment will avoid inconsistent findings made by these two adjudicative bodies;

c. an adjournment will prevent a multiplicity of proceedings; and

d. it is onerous to be required to prosecute two proceedings simultaneously and not in the best interests of the children in the appellant’s care to do so.

Overlapping Issues

26The appellant asserts that there is “significant overlap between the issues” raised by the appellant in its appeal to the Tribunal regarding the Conditions and its judicial review application to the Divisional Court regarding the Cap. I accept that the same facts gave rise to the Director imposing both the Conditions and the Cap. However, this is not the same as the existence of overlapping issues. The appropriateness of the imposition of the Conditions and the appropriateness of the imposition of the Cap are separate and discrete issues. I am unable to give any weight to this argument.

Inconsistent Findings

27The appellant argues that it would be unfair to the appellant if inconsistent findings are made by the Tribunal and the Divisional Court. No authority is cited in support of this argument and it is not immediately apparent how unfairness to the appellant would result.

28Notwithstanding, I am prepared to consider the issue further. Inconsistent findings could arise if the Tribunal and the Divisional Court were to make different findings of fact. Inconsistent findings could also arise if the Tribunal and Divisional Court make the same (or similar) findings of fact, but come to different conclusions as to the appropriateness of the actions taken by the Director on the basis of those facts in relation to, respectively, the Conditions and the Cap.

29I accept that differing findings between the Tribunal and the Divisional Court are possible. While perhaps undesirable, it is difficult to see how this situation is unfair to the appellant.

30It is also possible that the Tribunal and the Divisional Court arrive at different conclusions regarding the appropriateness of the action taken by the Director in relation to, respectively, the Conditions and the Cap. A Director’s ability to impose conditions and to impose an upper limit on the number of children in care can be considered different tools in a Director’s toolbox. While these tools are used by the Director to address perceived areas of concern in relation to a licensee, they are not necessarily used to address the same area of concern.

31It is possible, for example, that the Conditions were intended to address an area of concern wholly different from the area of concern that the Cap was intended to address. It follows then that findings on the appropriateness of the imposition the Conditions and the Cap might be different without being inconsistent, one being appropriate to address the area of concern, the other not. While differing findings on the appropriateness of the action taken by the Director in relation to the imposition of the Conditions and the Cap may be different, they are not necessarily inconsistent. One can see this point most clearly if we imagine one adjudicative body making both decisions.

32Finally, there are significant differences in the type of process undertaken at the Tribunal and at Divisional Court. The Tribunal holds a hearing de novo in an appeal of imposed conditions. Following the hearing, the Tribunal is authorized by the Act to confirm or strike out any or all of the conditions and to impose any other conditions that the Tribunal considers appropriate.⁶ The Divisional Court undertakes a very different sort of review, and is typically restricted to a review of the record that was before the decision-maker.

33In summary, while it is possible that the parallel processes may give rise to inconsistent findings, this is a logical result of the legislative scheme, not part of procedural fairness within the Tribunal’s control. As well, it has not been demonstrated how such inconsistency would lead to unfairness.

Multiplicity of Proceedings

34The appellant takes the position that an adjournment should be granted where an adjournment will avoid a multiplicity of proceedings. The case⁷ cited in support of this proposition involves the possibility of a subsequent proceeding at the same forum, based on the same underlying facts and pending the completion of a report that would be considered as evidence. As such, it is clearly distinguishable from this case.

35The appellant argues that if it is not successful at Divisional Court, it might then choose to withdraw its appeal to the Tribunal, thus avoiding a multiplicity of proceedings. I note, however, that even if the appellant is successful at Divisional Court, it would still be necessary to hold a hearing in relation to the Conditions if the appellant did not withdraw its appeal. The resolution of each issue is separate and distinct; this is unavoidable given the requirements of the legislation.

Best Interests of the Children in Care

36The appellant argues that an adjournment would be in the best interests of the children in the appellant’s care in that the appellant would not be required to devote resources to two avenues of litigation simultaneously.

37I accept that the requirement to prosecute parallel proceedings is costly and onerous for a small business owner and would put pressure on its internal resources. I also accept that this is exacerbated to some degree by the fact that the respondent is endowed with significant resources upon which it can draw in prosecuting litigation.

38While I have sympathy for these arguments, I must not lose sight of the fact that this is the legislative regime to which the appellant – along with every other residential care licensee under the Act – is subject. Litigation is onerous to almost everyone involved in it. As well, the appellant chose to put itself in this position by both appealing the restrictions imposed on its residential care licence and seeking judicial review of the Cap decision, as it is entitled to do. While the situation may be onerous and asymmetrical, I am not convinced that it necessarily has – or ought to have - an impact on the best interests of the children in the appellant’s care.

No Prejudice to Respondent

39This is the appellant’s strongest argument. I agree that there is no prejudice to the respondent in that the challenged Conditions are not stayed by the appellant’s application for judicial review in relation to the Cap. The Conditions are currently in effect and will remain so until adjudicated by the Tribunal; thus the public interest that the Conditions seek to protect would not be affected if this appeal were to be delayed by a lengthy adjournment pending adjudication of the Cap.

Summary

40The appellant suggests that determination of whether the adjournment should be granted involves weighing the prejudice to the appellant (of not receiving an adjournment) and the prejudice to the respondent (caused by the granting of an adjournment). This is an important consideration, but not determinative of the issue. Of the factors considered above, I put the most weight on the fact that an adjournment is not necessary to permit an adequate hearing, that is, a hearing that is procedurally fair to the appellant. A close second is the need for administrative proceedings to be expeditious.

41I then consider the relative prejudice to the parties and the absence of prejudice to the respondent should the adjournment be granted, which, as noted, is the most meritorious of the positions asserted by the appellant. The balance of the appellant’s arguments for an adjournment arise from the architecture of the legislation which must be respected. I note, as well, that by bringing this motion the appellant has already achieved a postponement of the beginning of these proceedings of at least three months, well beyond the 30 days contemplated by the LAT Rules.

42In conclusion, an adjournment of this appeal is not warranted in these circumstances.

THE TRIBUNAL ORDERS

Adjournment Request

43The request for adjournment pending the completion of the appellant’s proceedings before the Divisional Court is denied.

Scheduling Case Conference

44The parties shall confer and provide to the Tribunal, no later than February 26, 2021, three dates between March 1 and March 19, 2021 on which they are both available to attend a case conference for the purpose of the scheduling the hearing.

LICENCE APPEAL TRIBUNAL

_______________________

Joanne E. Foot, Member

Footnotes

1. 1CYFSA s. 265(1)
2. 2CYFSA s. 260
3. 3Senjule v. LSUC 2013 ONSC 2817
4. 41703-02551 (Re), 2017 ONSBT 4651
5. 5The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, (October 2, 2017), as amended February 7, 2019 (the “LAT Rules”)
6. 6CYFSA, s. 265(5)(b).
7. 7J.K.H. v. Northbridge Insurance Company, 2017 CanLII 6362 (ONLAT)