Court File and Parties

COURT FILE NO.: FS-18-06661 DATE: 20190624 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Jewish Family and Child Service of Greater Toronto Applicant/Respondent on Appeal – and – E.K.B. Respondent/Appellant on Appeal – and – S.J.B Respondent on Appeal – and – R.G Respondent on Appeal

Counsel: Sara Westreich for the Respondent on Appeal Joseph Kary, for the Appellant on Appeal Self-represented (Not Present) Self-Represented (Not Present) Harjot Dosanjh, for the Office of the Public Guardian and Trustee, Proposed Intervenor/Moving Party Susan Sack, for Renatta Austin, Proposed Intervenor/Moving Party Patric Senson, for the Office of the Children’s Lawyer

HEARD at Toronto: June 20, 2019

Motions for leave to intervene on an appeal from the decision of Justice Sager dated September 21, 2018

WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87 …

Order excluding media representatives or prohibiting publication

(7) Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

Prohibition re identifying child

(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

Prohibition re identifying person charged

(9) The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 …

Offences re publication

(3) A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Endorsement

KRISTJANSON, J.

[1] This is an appeal from a summary judgment decision of Justice Sager dated September 8, 2018, in which E.K.B.’s children were placed in extended Society care with no order for access to the mother, E.K.B.. The child protection application was commenced by Jewish Family and Child Services (JFCS), respondent in the appeal.

[2] In December, 2017, E.K.B. was declared a special party in the child protection application pursuant to Rule 2(1) of the Family Law Rules, which provides:

“special party” means a party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992 in respect of an issue in the case and who, as a result, requires legal representation, but does not include a child in a custody, access, child protection, adoption or child support case;

[3] The Public Guardian and Trustee (PGT) was appointed as a representative for E.K.B. pursuant to Rule 4(3) of the Family Law Rules. Ms. Renatta Austin, a lawyer, appeared as counsel for E.K.B. on the summary judgment motion before Justice Sager. The PGT takes the position that it appointed Ms. Austin as counsel for E.K.B., and it has a solicitor-client relationship with Ms. Austin.

[4] The appeal is brought by E.K.B., who is no longer a special party, and is represented by counsel. The PGT and Ms. Austin each seek leave to intervene as added parties on the appeal pursuant to Rule 13.01 of the Rules of Civil Procedure.

[5] The appellant challenges the procedural fairness of the summary judgment proceeding, in part on the basis that the appellant was adversely affected by her inability to give instructions and direct counsel after she was declared a special party. The appellant confirms that she does not question the constitutional validity of the special party provisions of the Family Law Rules as contrary to sections 7 or 15 of the Charter. Counsel for the appellant states that the issues relate to interpreting the Family Law Rules in accordance with Charter values, including how and when special party status should be assessed and reviewed through the course of litigation, and whether the appellant was deprived of the right to counsel by virtue of the special party provisions in a manner contravening procedural fairness and Charter values. Read in this context, the Notice of Appeal, paragraphs 3 through 7, the appellant’s factum and E.K.B.’s proposed fresh evidence raise issues regarding the special party rules and their application in this case. The proposed fresh evidence implies an ineffective assistance of counsel claim, in questioning the alleged failure of Ms. Austin or the PGT to present certain evidence to the court.

[6] Neither the appellant nor the respondent JFCS took a position on the issue of whether intervenor status should be granted.

Leave to Intervene

[7] The Family Law Rules do not specifically provide for intervenors. By virtue of Rule 1(7) of the Family Law Rules, the Rules of Civil Procedure apply by analogy: Children’s Aid Society, Region of Halton v. T.(J.), 2014 ONCJ 314. Rule 13.01(1) of the Rules of Civil Procedure provides:

13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

[8] The factors to be considering in determining the grant of leave to intervene and the extent of the intervention include: (1) the nature of the case; (2) the issues that arise; (3) whether the issues are essentially private or whether they involve a public interest component; (4) the likelihood of the applicant making a useful contribution to the resolution of the issues; and (5) whether the applicant’s participation would be unfair to the immediate parties: Fontaine v. Canada (Attorney General), 2014 ONSC 3781 at para. 23.

[9] A child protection appeal is normally a private litigation matter. However, the appellant in this case raises significant issues about the role of a special party and his or her representative, the duties of counsel to both the special representative and to the special party, the role of the trial/motions judge in relation to a special party, and issues of procedural fairness and Charter values. The significance of leave to intervene in Charter cases as opposed to purely private cases was addressed by McMurtry C.J.O. in Authorson (Guardian of) v. Canada (Attorney General), 2001 ONCA 4382, at paras. 7-9:

[7] In Peel, Chief Justice Dubin noted that in constitutional cases, including cases decided under the Canadian Charter of Rights and Freedoms, there has been a relaxation of the rules heretofore governing the disposition of motions for leave to intervene. This approach ensures that the court will have the benefit of various perspectives of the historical and sociological context, as well as policy and other considerations that bear on the validity of legislation.

[8] In contrast, Ontario courts have interpreted Rule 13 more narrowly in conventional, non-constitutional litigation. (See for example, Peixeiro v. Haberman (1994), 1994 ONSC 7322, 20 O.R. (3d) 666 at 670 (Gen. Div.)). Intervention of third parties into essentially private disputes should be carefully considered as any intervention can add to the cost and complexity of litigation, regardless of an agreement to restrict submissions.

[9] Many appeals will fall somewhere in between the constitutional and strictly private litigation continuum, depending on the nature of the case and the issues to be adjudicated. In my view, the burden on the moving party should be a heavier one in cases that are closer to the “private dispute” end of the spectrum.

[10] Given the nature of issues raised here, I am of the view that the questions upon which leave to intervene is sought have a significant public interest element, and the court would benefit from the participation of both parties on those issues. I also find that each of the proposed intervenors has an interest in the subject matter of the proceedings, and may be adversely affected by the judgment.

The Public Guardian and Trustee

[11] The PGT has an interest in the subject matter of the appeal, since the appeal challenges both the PGT’s role as representative for special parties generally, and the conduct of the PGT as the representative for E.K.B. in the protection application here. E.K.B. claims that the PGT’s involvement constitutes a loss of her right to counsel and breaches procedural fairness. Given that this appeal raises important issues about the PGT’s role and mandate, the participation of the PGT can provide a useful perspective and background to the appeal court. The PGT also has an interest in responding to allegations about its conduct in this case, and its relationship with counsel appointed by the PGT. The PGT may be adversely affected by the judgment in this case. Allowing the PGT to intervene as a party will be beneficial as there is a significant public interest component, the judgment has the potential to have an effect on others who are not immediate parties to the proceeding, and the PGT is a statutory and institutional body which is often called upon to act as a representative. I grant the PGT leave to intervene on terms set out below.

Ms. Austin

[12] Ms. Austin has an interest in the subject matter of this appeal, and may be adversely affected by the outcome of the appeal. The appellant claims that procedural fairness was breached in part due to Ms. Austin’s actions in the case, and that E.K.B. was adversely affected by her inability to direct or give instructions with respect to her own case. The allegations may affect Ms. Austin’s professional reputation. Appellant’s counsel concedes that the actions and statements of counsel are relevant to the issue of procedural fairness, and that facts raised on the appeal would overlap with those that would support a negligence claim. In addition, the duties owed by counsel appointed by a personal representative to both the special party and to the personal representative are clearly in issue. I grant Ms. Austin leave to intervene on terms set out below.

Partial Waiver of Privilege by the PGT

[13] In oral argument on these motions, counsel for the PGT confirmed that the PGT approved of the references to the retainer agreement contained in the June 6, 2019 affidavit of Renatta Austin, paragraphs 7-9. In so doing, the PGT has waived privilege over the retainer agreement with Ms. Austin. As a result, the PGT is to produce the retainer agreement by June 27th, although sensitive information not relevant to the issues raised on the appeal (for example, hourly rate) may be redacted. Questions about redaction may be brought to my attention through the Family Office.

Appellant’s Argument re Procedural Fairness and Charter Values

[14] The appellant has set out an argument involving procedural fairness and Charter values in the Notice of Appeal, the factum dated March 15, 2019, the fresh evidence adduced March 15, 2019 and on the intervenor motions, the May 13, 2019 letter to the Ministry of the Attorney General and the PGT, and an assertion in oral argument that the PGT and Ms. Austin owe the appellant a duty of confidentiality (Wigmore, Slavutych v. Baker, [1976] 1 S.C.R. 254; Canada v. Solosky, [1980] 1 S.C.R. 821; Descoteaux v. Mierzwinski, [1982] 1 S.C.R. 860, R. v. Gruenke, [1991] 3 S.C.R. 263, A.M. v. Ryan, [1997] 1 S.C.R. 157). These form the basis of the procedural fairness, natural justice and Charter values arguments on the appeal. Given the tight timelines, no new issues are to be raised by the appellant on the appeal.

[15] In her affidavit of June 13, 2019, the appellant makes reference to portions of the transcript of the summary judgment proceeding, as well as to an exchange in court which she says is not on the transcript. If the appellant wishes to make reference to the transcript (or alleged omissions from the transcript) in her fresh evidence on the appeal, then the appellant must file the transcripts, and she may file an amended or supplementary affidavit attaching the transcripts.

Terms of Intervention and Schedule to the Appeal

[16] Both the PGT and Ms. Austin are granted to leave to intervene pursuant to Rule 13.01 of the Rules of Civil Procedure.

[17] The intervention of both parties is restricted to responding to the issues raised by the appellant as set out above, as well as issues raised in paras. 112-113, 124, 125-128 of the JFCS factum, relating to:

• the actions and conduct of the PGT and Ms. Austin in this case, including responding to claims that the appellant was adversely affected by her inability to direct or give instructions about her case, and that PGT counsel concealed information from the court with respect to the appellant’s special party status, as well as ineffective assistance of counsel;
• statements of fact and law advanced by the appellant about the role and actions of the PGT and Ms. Austin on the application and the summary judgment motion, including communications with E.K.B., observations or knowledge of E.K.B.’s capacity, and the existence of a solicitor-client relationship or duty of confidentiality;
• the roles, duties and obligations of the representative of a special party and counsel appointed by a special party, in general;
• the roles, duties and obligations of the PGT as a representative for a special party in child protection proceedings and of counsel appointed by the PGT for a special party in child protection proceedings, in general;
• alleged breaches of procedural fairness, Charter values and the Ontario Human Rights Code as they relate to the roles and actions of the PGT and Ms. Austin;
• the alleged obligations of the PGT, counsel, and/or the judge to assess or raise the issue of incapacity or special party status during proceedings, as this relates to procedural fairness/ Charter values arguments in this case or generally.

[18] JFCS is to include the oral reasons of Justice Sherr of December 20, 2017 on the special party motion in the appeal record if it is not already in the appeal record.

[19] Either the appellant or the respondent may include the transcript of the December 20, 2017 hearing with an affidavit as fresh evidence.

[20] The PGT is to disclose to E.K.B. direct communications by PGT staff (not including Ms. Austin) with E.K.B. by June 28th (e.g, e-mails sent to or from E.K.B., notes which record statements made to the PGT by E.K.B.).

[21] All of the parties seek to bring motions to admit fresh evidence, given that the appellant is raising procedural fairness breaches relating to the summary judgment hearing.

[22] I am amending Justice Stevenson’s order regarding filing deadlines.

[23] The appellant, the PGT and Ms. Austin are to serve their fresh evidence affidavits by 4 pm on July 8th. The JFCS is to serve their affidavit(s) by July 10th, 4 p.m., or earlier if possible.

[24] All reply fresh evidence is to be served by July 12th, 4 p.m.

[25] Factums on the appeal are to be served and filed by July 18th, together with factums for fresh evidence motion (if not combined) and the motion records for the fresh evidence motions. Parties may combine the factums on the appeal with the factums on the fresh evidence motions, or may file them separately. Parties are to put Word versions of the factums and affidavits on USB keys when they file their material.

[26] Both the appellant and JFCS have filed factums on the appeal. They have leave to file fresh as amended factums or supplementary factums on the appeal.

[27] The appellant raises a concern with respect to a duty of confidentiality which may be owed to her by both the PGT and Ms. Austin. The appellant is to advise the parties whether they will object to the filing of the affidavits of the PGT and Ms. Austin on the grounds of confidentiality by July 12th. If there is objection, this will be the subject of argument on the fresh evidence motions. As a result, if the appellant objects to the evidence on the basis of breach of confidentiality, then the affidavit evidence must be filed in sealed envelopes, and if the factums of any of the parties refer to the disputed affidavit evidence, the factums (and USB keys) should be filed in sealed envelopes.

[28] The fresh evidence motions will be argued at the outset of the appeal. The appeal is set for two days, July 23 and 24.

[29] Costs are reserved to the appeal judge.

Justice Freya Kristjanson Released: June 24, 2019