Court Information

Court File No.: C51343/10 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. 11

And in the Matter of:

• M. G., born […] 1996
• J. S., born […] 2006
• N. S., born […] 2007

Between:

• Catholic Children's Aid Society of Toronto (Applicant)

And:

• N. A. (mother)
• R.B. (father of J.S. and N.S.)
• C. G. (father of M.G.)

(Respondents)

Judicial Information

Before: Justice Robert J. Spence

Argued on: 4 February and 7 February 2013

Reasons for Ruling released on: 11 February 2013

Counsel

• Mr. Alec Duncan — for the applicant society
• Ms. Nancy Thompson — for the respondent mother
• Mr. Alex Novak — for the respondent father
• No one appearing for C.G., the respondent father, previously noted in default and not participating at the trial

Reasons for Judgment

Justice Robert J. Spence:

Nature of Evidentiary Ruling

[1] The trial now ongoing before me is about whether the children[1] should be made Crown wards, for the purpose of adoption. As a preliminary matter at the outset of trial, mother's counsel sought a ruling on the admissibility of reasons for decision of the Child and Family Services Review Board ("Board") following an application to that Board by the mother in December 2010, pursuant to section 68.1 of the Child and Family Services Act ("Act"). [2] The mother sought to have the Board's decision admitted into evidence in this trial.

[2] The Catholic Children's Aid Society of Toronto ("society") objected to the admissibility of the decision. After hearing submissions on the first day of trial, I initially ruled that the decision of the Board was not admissible. I subsequently advised the parties that if the mother still wished to have the decision admitted into evidence, I was prepared to hear further submissions and consider the issue again. I did hear further submissions on February 7, 2013, following which I ruled that the Board's decision is admissible. I advised the parties that my reasons for that ruling would follow in due course. These are my reasons.

Brief Background Leading to the Board Hearing

[3] The children were apprehended by the society in June 2010. They have been in the society's care continuously since that date. In December 2010, by which time the children had been in the society's care for about six months, the mother launched her application to the Board, complaining that the society had failed to comply with its statutory obligations in a number of respects, including generally, in respect of how the society serviced the family and how the society treated the mother.

[4] The Board conducted a hearing, which included testimony from witnesses, and concluded that some of the mother's complaints were unfounded, but other complaints were meritorious in that the society failed to meet a number of its obligations under the Act, specifically, those obligations pertaining to:

• The reunification of her family between the time of apprehension and the court date;
• The care of the two younger children in foster care including with respect to [x religion];
• Allegations of disrespectful treatment by society personnel;
• Safety of [the child] in the group home;
• Some missed supervised access visits with two younger children; and
• The location of the access visits

[5] The Board issued a 25-page decision detailing its findings and conclusions in respect of the various matters at issue, all of which were addressed in the course of the hearing.[3] The Board's decision is reported at N.A. v. Catholic Children's Aid Society of Toronto 2011 CFSRB 46.

Society's Objections to Admissibility

[6] The society's argument against the admissibility of the Board's decision can be summed up essentially as follows:

1. The decision is not relevant.
2. Alternatively, if it is relevant, it is inadmissible hearsay.

I will discuss each of these objections.

Relevance

[7] In the case of Catholic Children's Aid Society of Toronto v. A.M. (2007), 2007 ONCJ 743, 89 R.F.L. (6th) 209 (Ont. C.J.), Justice Stanley B. Sherr was considering a summary judgment motion brought by the society for a Crown wardship order, for the purpose of adoption. In the course of his reasons for judgment, Justice Sherr commented on the society's obligation to comply with its statutory obligations and to appropriately service the family. At paragraphs 61 and 62, Justice Sherr had this to say [my emphasis]:

The evidence raises issues in this case whether the society has taken a rigid approach in dealing with access, or provided appropriate assistance to this family; whether it complied with its statutory obligations to assist the family and explored the least disruptive alternative for this child (consistent with his best interests) and whether it has given the mother a proper opportunity to show that she can parent the child.

The case law has established that the court should consider if the society has given the parent a reasonable opportunity to parent. Where the society frustrates contact with the parent and offers no services, this consideration must come into the equation.

[8] As I noted above, the Board's decision dealt with a number of failures by the society, which failures included the society's efforts to reunify the family, "disrespectful treatment" by society personnel, and failures pertaining to access visits. The Board specifically found that the society had failed to meet its statutory obligations, upholding the mother's complaints in respect of those matters.

[9] In my view the issues which were before the Board, and the Board's ultimate findings are directly connected to the society's:

• "statutory obligations to assist the family" and
• "whether or not they have given the mother a proper opportunity to show that she can parent the child".[4]

[10] Because this court is required to take these considerations into account in exploring the least disruptive alternative for children (and what is in the best interests of children), I am forced to conclude that the Board's decision is relevant.[5]

Hearsay

[11] I agree with the society that the Board's decision, and its reasons, as set out in the document sought to be tendered into evidence, are hearsay. However, there are a number of well-established exceptions to inadmissible hearsay. I have concluded that the document is admissible under two exceptions to the hearsay rule. First, it is admissible as a public document and, second, it is admissible under the modern exception to the hearsay rule, namely, necessity and reliability.

a. Public Document

[12] At section 6.295 of Sopinka, Lederman & Bryant in The Law of Evidence in Canada (Third Edition, 2009), the authors state:

Where an official record is necessarily subject to public inspection, the facility and certainty with which errors would be exposed and corrected provides an additional guarantee of accuracy. Before this exception to the hearsay rule comes into play, however, the following preconditions, cumulatively providing a measure of dependability, must be established:

1. The subject matter of the statement must be of a public nature.
2. The statement must have been prepared with a view to being retained and kept as a public record.
3. It must have been made for a public purpose and available to the public for inspection at all times.
4. It must have been prepared by a public officer in pursuance of his or her duty.[6]

[13] The society argued that the Board's decision is not a public document, for two reasons: first, because the document is not intended to be seen by the public and, second, because the document uses initials rather than full names of the parties and the children. In other words, the society argued, the document the mother seeks to introduce into evidence has been redacted.

[14] Dealing first with the objection that the document was not intended to be seen by the public, in fact, as I noted earlier, the Board's decision is posted on the internet at http://www.canlii.org/en/on/oncfsrb/doc/2011/2011cfsrb46/2011cfsrb46.html for the entire world to see. It has a legal citation, in the same way as decisions of the courts are cited when those decisions are reported in legal texts or on the internet. This very public posting of the Board's decision undercuts the society's argument that the decision was not intended to be seen by the public.

[15] As to the objection over initialization, decisions of courts are often initialized in their reporting for the purpose of protecting the privacy of the individuals in the litigation. However, this initialization does not detract from the public nature of the courts' decisions and reasons for judgment. Again, if the decisions were not intended as public documents, they would not be published in legal texts, on the internet and in other publications, for the world at large to access and to read. More specifically, reasons for judgment in child protection cases have long been initialized for privacy reasons, in the very same way that these reasons are being initialized. In my view, despite initialization, all of these decisions are "public documents".

[16] Furthermore, while it may be correct to suggest that the parties' names have been redacted, for privacy reasons, this does not mean that the substance of the Board's decision has been redacted. In fact, as I review the decision, there is no suggestion whatsoever that any of the Board's reasoning or conclusions have been redacted.[7] And in assessing the value of any reasons for decision of a court or quasi-judicial tribunal, the essence of those decisions is in the reasoning. It is not about whether the names of the litigants or the children have been used in full or initialized.

[17] The society also referred to the last paragraph in the Board's reasons as further support for its argument that the decision is private in nature. That paragraph reads [my emphasis]:

This hearing was conducted in private and was not open to the public. Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone, including the media or through the internet.

[18] I do not take that proscription as intending to include the Board's decision itself. I take it to mean exactly what it says, namely, that the "documents" and "information provided" . . . in the application" are private. The fact that the Board has specifically stated that the "private" things ("documents" and "information provided") are not to be posted on the internet must, by necessity, preclude the Board's decision from that prohibition, as that decision has in fact been posted on the internet, presumably with the explicit or implicit permission or acquiescence of the Board.

[19] For all of these reasons, I conclude that the Board's decision is a public document and, therefore, is admissible as an exception to the hearsay rule.

b. Necessity and Reliability

[20] The traditional hearsay rules were brought into line with modern judicial thinking in the decision of the Supreme Court of Canada in R. v. Starr [2000] S.C.R. 144. That case re-vamped the old hearsay rules by permitting a new hearsay exception[8] based on the principle of "necessity and reliability". The society argued that the Board's decision is neither necessary, nor is it reliable. I will address the necessity issue first.

[21] The society submitted that it is possible to summons to this court those persons who were at the Board hearing, including the Board members, to verify the accuracy of the decision so that reliance on the written decision, which is hearsay, is not necessary. I disagree. "Necessity" can come in various forms. It ranges along a spectrum, from the death of the declarant at one end, to the impracticality of calling the declarant (in the sense that there is nothing to be gained by requiring the declarant to attend court to testify) at the other end. In short, "necessity" does not mean absolute necessity.[9]

[22] In this case, there is nothing to be gained from calling the Board members to court to testify as to the accuracy of their decision, or the circumstances surrounding the making of that decision.

[23] I conclude that the Board's reported decision meets the threshold requirement of necessity.

[24] As to reliability, the society argued that the decision is not reliable, for a number of reasons, including: the society strenuously disagrees with the Board's conclusions (the society has sought judicial review which, I am told, has yet to be heard), the Board hearing was conducted by one or more lay persons (rather than legally trained judges), the witnesses who testified at the Board hearing were not under oath, and there was no official transcript or recording of the Board proceedings.

[25] With respect, the society's arguments regarding reliability confuse "threshold" reliability with "ultimate" reliability. By pointing to what the society says are the weaknesses in the Board's decision, the society is arguing about the "ultimate" reliability of the decision itself. The society's argument is really about whether the Board's conclusions ought to be relied upon by this court, given what the society says are all the inherent weaknesses in the way in which the Board is constituted and the manner in which it conducts its hearings. As with any piece of evidence which is tendered throughout this trial, the court will give whatever weight is appropriate to the Board's decision; and in deciding the weight to be given, the court may consider those inherent weaknesses to which the society refers. However, in order to find the document admissible, this court needs only to conclude that it meets the test of threshold reliability.[10]

[26] In considering threshold reliability, the court is asking itself, in essence, the following question: Are the circumstances surrounding the making of the document or statement sufficiently reliable, such that the court can have confidence that the document or statement was likely made in a manner that can assure its accuracy? In this case, the Board was a statutorily comprised quasi-judicial tribunal, which was empowered to hear witnesses, in the presence of the parties or their representatives, with the power to permit cross-examination and, I expect, with all of the other minimum requirements necessary to afford the parties a fair hearing, including all of the protections normally required in a hearing conducted under the Statutory Powers Procedure Act. In deciding threshold reliability, these are the factors the court must consider. I have concluded that the Board's decision meets the test of threshold reliability.

[27] Having found that the Board's decision is both necessary and reliable, I conclude that it is admissible in evidence in this trial.

Conclusion

[28] For all of the foregoing reasons, I conclude:

1. The Board's decision is relevant.
2. The Board's decision is admissible as an exception to the hearsay rule because it meets the requirements of being a public document.
3. In addition (or if I am mistaken about the public document determination) the Board's decision is admissible on the principled exception to the hearsay rule of necessity and reliability.

Justice Robert J. Spence

February 11, 2013

Footnotes

[1] Except the eldest child M.G., for whom no order is being sought by the society or by either of the parents

[2] Complaints to the Board are provided for under section 68.1 of the Act

[3] It was not clear from the submissions how long the hearing took, but it appears to have taken somewhere between one and two days

[4] Justice Sherr's wording in A.M., supra

[5] "relevant" in the sense that it goes to a fact in issue in this case, albeit it is a single piece of evidence to be given whatever weight the court deems appropriate in all the circumstances of this case

[6] Citing R.W. Baker, The Hearsay Rule (London: Pitman, 1950), at 138

[7] Nor was this suggested by the society in its argument against admissibility

[8] Once that evidence is first found to be relevant

[9] See Sopinka, supra, at section 6.108

[10] See, for example, the discussion in Children's Aid Society of Toronto v. L.L. (2010), 2010 ONCJ 48, 83 R.F.L. (6th) 431 (Ont. C.J.), at paragraphs 14 and 26