ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

BETWEEN:

CHILDREN’S AID SOCIETY OF THE COUNTY OF RENFREW

APPLICANT

AND:

M.S.H. and S.H., and

THE CHILD AND FAMILY SERVICES REVIEW BOARD

RESPONDENTS

Counsel for the Applicant: Robert C. Morrow

Counsel for M.S.H. and S. H.: Thomas J. Prince

Counsel for The Child And Family Services Review Board: Crystal O’Donnell

Heard on an Urgent Basis: January 23, 2008

ENDORSEMENT

The matter before this Court is an Application brought by the Children’s Aid Society of the County of Renfrew (“the Society”) for judicial review of a decision of the Child and Family Services Act Review Board (“the Board”), dated December 9, 2008, finding that it had jurisdiction to hear the matter brought before it by M.S. H. and S. H pursuant to Section 144 of the Child and Family Services Act (“CFSA”). The Society seeks the following orders:

1. An order granting leave under s. 6(2) of the Judicial Review Procedur Act, R. S. O. 1990, c. J.1 for judicial review to be heard by a single judge of the Superior Court because of urgency;

2. If leave is granted, an order of Certiorari quashing the decision of the Board;

3. If leave is granted, an order of Prohibition preventing the Board from reconvening the hearing of the application for a review brought before it by M.S. H. and S. H.

4. An order for costs on a substantial indemnity basis, payable jointly and severally by the Respondents.

The Society also sought ,at the commencement of these proceedings ,to have admitted new affidavit evidence, an affidavit of Mr. Richard Dickinson, sworn January 8, 2009. The admission of this new evidence was contested by the other two parties. For brief reasons given orally, the admission of this new material was refused. It contained new evidence which was not before the Board and included legal arguments which counsel for the Society could make orally without reliance on this affidavit.

All of the parties were in agreement that the first order sought for leave under s. 6(2) of the Judicial Review Procedure Act should be granted. After being apprised of the circumstances of this case, the Court was also of the view that leave should be granted and it was so ordered.

This matter is clearly urgent. It concerns a decision touching on the Society’s plan of care for a very young child and it concerns an ongoing proceeding before the Board which is scheduled to resume next week, on Monday, January26, 2009.

FACTUAL BACKGROUND

It would be useful to outline the facts which have given rise to this matter, most of which were not contested. In rendering its decision on the question of jurisdiction on December 9, 2008, the Board also made a number of findings of facts which were not contested by the parties.

The female child C. C. (“the child”) was born on May16, 2007 and apprehended at birth by the Society. She was immediately placed with the married Co- Respondents, M. S. H. and S. H. and remained in their care until she was removed from their home by the Society some 16 months later on August 15, 2008.

The Society’s plan of care for the child was to make her a Crown Ward with a view to adoption. Because the child’s mother and grandparents were registered status Indians, the child’s Band, the Pine Creek First Nation Band were served with the Society’s Application for Crown Wardship. The Band did not oppose the Society’s Application. The child was indeed made a Crown Ward without access with a plan for adoption on consent by order of the Honourable Mr. Justice Radley-Waters dated January 2, 2008.

M. S. H. and S. H. were among a group of foster parents selected by the Society in accordance with its policy to endeavour to avoid changes in placement of young children when they become available for adoption. M.S. H. and S. H. were told by the Society, when they inquired about adopting another child, that if they wanted to adopt a child in Pembroke then they would have to foster with an intent to adopt a child. This is what they did. The couple became what the Board referred to at paragraph 15 of its decision, as “foster parents with a view to adopt”. It was not disputed that this is not a category of foster parent which is legislatively recognized or treated differently by the Child and Family Service Act (“CFSA”).

In preparation for M.S. H. and S. H to become foster parents approved by the Society, they had a Home Study done by the Society in the summer of 2006. They were told several weeks before the child’s birth that the child would be coming to live with them. At that time they were told that their home study did not need to be updated. The Society requested blood work for the child prior to her coming into the home of the M. S.H. and S. H. because they wanted an early indication should there be any problem. When the couple finally received the child into their care, they understood that the Society was planning for them to become the child’s adoptive parents. The Board also found that the couple understood that the Society was undertaking whatever steps were required in order to finalize the child’s adoption by them.

At paragraph 18 of its decision the Board found that in the course of its protection proceedings to obtain an order for Crown Warship for the child and after the order had been obtained the Society,

“submitted two Quarterly Plans of Care for the periods September 13, 2007 to December 13, 2007 and December 13, 2007 to March 13, 2007[note: this is probably a mistake and should be 2008} (Exhibits A1 and A2 respectively) prepared by the Society regarding the planning for [C.]. Both of these documents reflect a clear commitment on the part of the Society for the child to be adopted by the Applicants .”

Both those documents indicated that the objective of the Society was that the child” have a permanent home with the [H’s], progressing to adoption probation when court documents for Crown Wardship without access are completed.” The work required to be done by the Society was to “work with the [H’s] to perform adoption process, to ensure [C.] is a permanent member of the [H] family. The target date was to be January 2008.

M.S. H. and S. H arranged for the child’s baptism on November 25, 2007, asking family and friends to become God parents. The Board found that this was done with the knowledge and support of the Society.

The Society, however, did not carry out the required steps to formally finalize the placement of the child for adoption with M.S. H. and S. H. Firstly, although the order of Crown Wardship without access was obtained on January 2, 2008, the formal order from the Ontario Court of Justice was not taken out until July 14, 2008. Such a formal order is required for the preparation of the documents needed for the adoption placement registration. Furthermore, by the time it obtained the formal order of Crown Wardship without access the Society was not under any of the Limitations for the placement for adoption of this child provided for in section 141.1 of the CFSA ( i.e. no outstanding order of access to the child and expiration of the time for commencing an appeal of the order for Crown Wardship).

Secondly, even after this formal Crown Wardship without access order was obtained by the Society, the Society still did not move to complete the registration of placement for adoption as is mandated under section 140(6) of the CFSA which reads as follows,

“…(6) A society or licensee who places a child with another person for adoption shall register the placement in the prescribed manner within thirty days of placing the child.”

The Society never saw to completing and submitting the required documentation so as to effect registration. Those documents can be found in tab 4 G of The Child and Family Services Review Board Record of Hearing.

Finally, as is mandated by section 141.2(1) of the CFSA, the Society never notified, in writing or otherwise, the Pine Creek First Nations Band that it was planning for the adoption of the child. Consequently, the 60 days allowed to the Band to prepare or submit its own plan for the care of the child has never been triggered. (see section 141.2(2).

On August 15, 2008 the child was removed from the home of M.S.H. and S. H. and the H. home was closed by the Society as a resource for foster care.

On October 16, 2008 the Society wrote to M. S. H. and S. H informing them that the child would not be returning to their home. This letter can be found at tab 1 of the Child and Family Services Review Board Record of Hearing, The letter indicated that the Society had re-assed the current family situation of M. S. H. and S. H. as it pertains to fostering with a view to adopt and had found that “your current situation, family circumstances and the specific developmental needs of your own son prevent you from meeting the six PRIDE competencies required for foster and foster with a view to adopt parents.” The letter concluded by informing the couple of their right to appeal the Society’s decision to the Family and Children’s Services Review Board. M. S. H and S. H did exactly that.

The Board found the couple eligible to bring such a review under section 144(1) of the CFSA, which reads as follows:

144(1) This section applies if,

a) A society decides to refuse an application to adopt a particular child made by a foster parent, or other person; or

b) A society or licensee decides to remove a child who has been placed with a person for adoption.

At the commencement of the proceedings before the Board, the Society brought a motion challenging the jurisdiction of the Board to hear the application. The Board notified the Band about the proceedings before it including the motion brought by the Society on jurisdiction.

The argument made then by the Society before the Board on the question of jurisdiction is essentially the same one submitted to this Court. It is the position of the Society, that in view of the fact that the formal requirements for the placement of the child for adoption with M.S. H and S. H. have never be met, the child cannot be found to have “been placed with [M. S. H. and S. H.] for adoption. Section 144(1) b) does not, therefore, apply to the facts of this case.

The Board rendered it decision on the question of jurisdiction on December 9, 2008 and found that it did have jurisdiction to conduct a review and proceeded with the hearing. Since the rendering of that decision by the Board the Society has not participated in the proceedings before the Board and commenced these proceedings before this Court.

DECISION OF THE CHILD AND FAMILY SERVICES ACT REVIEW BOARD

The essence of the Board’s rational for finding that the child had been placed for adoption with M.S. H. and S. H., and hence giving the Board jurisdiction to hear the matter can be found in paragraphs 25 to 30 inclusive of its decision which I reproduce below:

“…[25] It is clear on the evidence that the Society engaged with the Applicants prior to the birth of the child with a clear intention that she be adopted by them. This was the Applicants’ understanding from the beginning. The processes undertaken by the Society support this. The Society clearly indicated to the Applicants that they were accepting fostering with a view to adoption. It conducted a Home Study with that purpose in mind. The Quarterly Plans of Care explicitly reflect the Society’s intentions. Further, the Society’s support of the Applicants in taking responsibility for [C’s] religious upbringing and of their planning generally for her permanent placement with them are consistent with the intent to place [C] with the Applicants for adoption. The Society’s intention to place [C] in the home of the Applicants for the purpose of adoption is evident from all of its actions, and not simply her physical placement in the Applicants’ home. As a result of this placement, the rights of the birth parents (referred to by the Society as ceasing on placement for adoption) would no longer apply.

[26] The Applicants’ participation in the Society’s processes regarding the child has been unambiguous and they have acted in the interests of permanent placement of the child with them. They have engaged in this process with the Society who was responsible for creating these conditions. It is clear that the Society failed to take the required steps to formally finalize the placement of the child. However, the Applicants should not have to bear the cost of the Society’s failure when the Society’s intention was clear from the outset. Moreover, the Society was responsible for creating the Applicants’ unambiguous commitment to adopt this child prior to and at the time of her placement and throughout the period of her placement with them.

[27] On this basis, the Board finds that the child was placed with the Applicants for adoption under subsection 144(1)(b) of the Act, which provides the Applicants with the right to a review where:

A society or licensee decides to remove a child who has been placed with a person for adoption

[28] This is so despite the fact that the Society failed to undertake the required steps to formally finalize the adoption placement of the child. A child can be placed for adoption without the formal requirement for registration having been completed. In any event, the registration requirement occurs post-placement and is not a pre-requisite to placement.

[29] In terms of the notice to the Band, this pertains to notice at the planning stage and should have been done immediately following the Crown Wardship order. Despite its statutory obligation to provide notice and the language in the statute that mandates the Society not to place without such notice, the Society did in fact place[C] for adoption. The rights of the Applicants crystallized despite any Band rights which might, but have not to date, been asserted. The question of whether the Applicants’ rights remain should the Band assert its rights is speculative and does not have to be determined at this time.

[30] The Society cannot now rely on their own failure to follow the legislative requirements. Nor can it rely on its own delay in obtaining the issued and entered order. The actions of the Society run counter to the legislative intent surrounding the best interests of the child which included early decision making to achieve permanency planning.”

POSITION OF THE PARTIES

Both Respondents, M.S.H and S. H and the Board contested the Society’s Application.

Because of the ongoing proceedings, counsel for the Board made no arguments on the merits of the substantive issue of jurisdiction. She argued, however, that the question of jurisdiction is one of mixed fact and law, and one which is within the prerogative of the Board to answer in controlling its own process.

Counsel for the Board argued that the question of jurisdiction is an interim procedural one. It is also, it was argued, a question which may become moot, from the perspective of the Society, once the Board has given its final decision in the proceedings. Furthermore, it was argued, that the dismissal of this Application for judicial review will not preclude the Society from raising the same issues in an Application for judicial review of the final decision of the Board.

Counsel for the CFSA Board argued that judicial review of interim preliminary rulings should be granted only in exceptional circumstances and no such exceptional circumstances exist on the facts of this case. For these reasons, counsel for the Board submitted, that the Application for judicial review in the middle of the Board proceedings was premature and should be quashed. Counsel for the Board relies on a number of cited cases in support of her arguments.

Counsel for M. S. H. and S. H. argued that the question of the Board’s jurisdiction turns on the meaning to be given to the words “placed with a person for adoption” found in section 144(1) of the CFSA. There is no legislative definition of the word “placement” . He argued that the question of whether the child had been placed with his clients for adoption is question of mixed fact and law. He further argued that the facts were found by the Board based on the evidence presented to it and the Board concluded that it had jurisdiction. Its conclusion was a reasonable one.

Counsel for M. S. H. and S. H. also argued that the decision of the Board is an interim one and may not be a final determination of the issue. Like counsel for the Board,he too submitted that the Society’s Application for judicial review was premature and ought to be quashed.

The Society submitted that its judicial review application is not premature. Counsel for the Society acknowledged that absent exceptional circumstances, administrative proceedings should not be fragmented. However, it was argued , that this rule ought not to apply to this case where time is of the essence for this young child who is the subject of these proceedings. Counsel for the Society further submitted that the question of jurisdiction is a fundamental issue that ought to be decided now in order to avoid a lengthy delay in the resumption of the hearing which he claims is in error on the face of the record.

While taking the position in his factum that the question of jurisdiction in this matter is a question of law only, in the course of his oral arguments, counsel for the Society conceded that it may indeed be a question of mixed fact and law, because of the necessary findings of fact which must be made in order to determine the ultimate question of jurisdiction.

Counsel for the Society submitted that the Board erred in law when it found that it had jurisdiction to entertain the proceedings before it by finding that there had been a placement for adoption with M.S. H. and S. H. It was the position of the Society that while there is no definition of “placement” found in the CFSA, it is clearly entails more than the physical act of placing the child in the care of M.S.H. and S.H. The various sections of the CFSA, notably section 141(registration of the placement for adoption in the prescribed manner);section 141.1 (no outstanding access order,and expiration of appeal period); and section 141.2 (written notice to the Band and expiration of time to present plan)require that certain formal requirements be carried out by the Society before “placement for adoption” within the meaning of the CFSA can be found to have taken place. Those section are mandatory (“shall”) and the Board was therefore in error when it concluded at paragraph [28] “A child can be placed for adoption without the formal requirement for registration having been completed.”

IS THE JUDICIAL REVIEW APPLICATION PREMATURE?

I am persuaded that this judicial review Application ought to be heard on its merits. I am cognizant of the fact that proceedings before administrative tribunals ought not to be fragmented(see Ontario College of Art. V. Ontario(Human Rights Commission), [1993] O.J. No. 61 (Div. Ct. ) (QL) and Re Governing Council of the University of Toronto and Canadian Union of Educational Workers, Local 2 (1988), 65 O. R. (2d) 268 (Div. Ct.). Nonetheless, the question of jurisdiction in the circumstances of this case is, in my view, a fundamental “bedrock” issue as was found by Mr. Justice O’Driscoll on the facts of his case in Metropolitan Toronto Housing Authority v. Godwin (2000), 50 O. R. (3d) 207, (Ont. Div. Ct.)which ought to be decided before the Board continues with the rest of its hearing so as to avoid any needless further delay in this matter.

The permanency planning for the young child who is the subject of these proceedings cannot go forward until the issue of jurisdiction is determined now that it has been raised by the Society. If the Board has erred and lacks jurisdiction the hearing is fatally flawed and would be a waste of time and money for all of the parties. Time is of the essence in this case. It weighs in favour of having this issue decided now rather than later.

STANDARD OF REVIEW

I agree with counsel that the question of jurisdiction in this matter is one of mixed fact and law. As indicated earlier there was no dispute raised concerning the Board’s findings of facts and they are therefore accepted for purposes of this Application. It was also not disputed that questions of law are to be determined by the correctness standard. The same standard applies to those questions where the legal and factual issues are intertwined and cannot be readily separated (see New Brunswick(Board of Management) v. Dunsmuir (2008) 2008 SCC 9, 1 SCR 190 (S. C. C.) In my view that is the case here.

ANALYSIS

On cannot find a definition of “placement for adoption” in the CFSA. The term appears as a subtitle to Part Vll of the CFSA which deals with adoptions and includes sections 140 to 143 inclusive. A reading of those sections indicates that their purpose is clearly to establish both the formal requirements and limitations accompanying any placement for adoption. The use of the word “shall” in those sections make the requirements and limitations found in those sections mandatory and not merely permissive.

There is little jurisprudence on the meaning of “placement for adoption” as found in the CFSA. What few cases exist are instructive. In K.M. (Re)[2000] O.J. No 5810 Kurkurin J. had to decide whether the adoption before him was a family adoption or not. He had the following to say about placement for adoption and its significance and implications at paragraph 32,

“Placement for adoption seems not only to be a physical act; it also seems to be a legal process contemplated by Part Vll of the Act. For example, subsection 140(2) outlines some situations where a children’s aid society is prohibited from placing a child for adoption. Subsection 140(3) obligates a children’s aid society to give a child’s band or native community 30 days written notice of its intention to place for adoption an Indian or native child. Subsection 141(6) requires a children’s aid society or a licensee who places a child for adoption to register that placement in the prescribed manner within 30 days of such placement. Placement is important, and equally so is the time of such placement. Placement for adoption by a children’s aid society or a licensee terminates outstanding domestic access orders. In some cases, under subsection 58(7) of the Act, it creates a bar to bringing applications dealing with access, and under subsection 143(2), it prohibits any person from interfering with the child or, for that purpose, even communicating or visiting with the child or the person with whom the child is placed.”

In the case of Larocque v. Fraser, [1998] O.J. No. 5459; 83 O.T.C. 225 the Court had to decide whether a placement for adoption had taken place on the facts before it where parents had placed the child with a non-related couple for adoption without the assistance of the Children’s Aid Society or a licensee.

The Court found that the “substantive law of adoption in Ontario is a creation of statute, namely Part Vll of the CFSA…” (page 4). Those sections were enacted to meet at least one of the CFSA’s primary objectives, namely the best interests of the child. Because of the “profound effect of an adoption order”, another objective of the CFSA adoption provision was the strict monitoring of any placement of a child for adoption. In considering the provisions of the adoption sections of the CFSA in light of these objectives, the Court concluded that the child in question had not been placed for adoption pursuant to the CFSA. To conclude otherwise would be to open up the adoption process to all sorts of mischief and misuse and would be going far beyond the intention of the legislation (page 7).

In Catholic Children’s Aid Society of Metropolitan Toronto (Municipality)v. S (T.), 20 R. F. L. (3d) 337 (Ont. C. A.), the Court was dealing with the adoption sections of the preceding legislation to the current one, the Child Welfare Act. The specific issue before the Court was whether a court could combine adoption with an order for continued access by the birth parents and whether an answer in the negative to that question offended the parents’ Charter right. The Court found that it did not. On the facts of that case adoption was in the best interests of the child justified terminating the access to the birth parents.

While the issue of Charter rights is not relevant to the facts before us, the Court in that decision did examine the meaning of the word “placement” in the legislation. The Court found that it did not merely refer to the physical placement of the child in a home but included as well a consideration of the intention and surrounding circumstances of the physical placement. It stated at paragraph 31,

“One of the reasons that Nasmith Prov. J. gave in finding an ambiguity in the C. W. A. is that , in a case such as the present one, there is no need for the physical “placement”, since the children are already placed with the prospective adopting parents [p. 384]: “the so-called adoption placement would be a mere formalization, if you will, or a deemed placement.” But I do not see why a placement cannot include a deemed placement. The word “placement” is not defined in the Act and, in the context in which it is used, does not necessarily indicate the moment of first physically placing a child in a particular home. It is more an abstract concept. Placement occurs when there is a coinciding of the decision that a child will be adopted with the time when the child is residing with the prospective adopting parents.”

Based on the absence of a legislative definition of the term “placement for adoption” and the above limited jurisprudence the following conclusions may be made. Because of the profound and significant legal consequences which accompany a placement for adoption of a child, it is important to be able to identify a point in time when such an event occurs. This is because the placement for adoption of a child effects the legal status of the child and crystallizes a number of parental, child and community rights and obligations, such as the right of the Band to put forward an alternate plan for an Indian or native child. Established parental access may be terminated in the best interests of the child.

The placement for adoption of a child cannot be done unilaterally and alone by any parent or person. The legal adoption process is a legislatively created and controlled process that must engage legislatively identified professionals such as the Society, accredited licensees and the involvement of the Director appointed under the CFSA. The legislation mandates that certain formal steps must be undertaken before a placement can take place and upon a placement taking place. Those section have already been alluded to. Those conditions and limitations to a placement for adoption exist to control and protect the integrity of the adoption process, to prevent mischief and misuse of the process and to respect the intention of the legislation. The paramount purpose of the adoption legislation, like the rest of the CFSA must always be considered as found in section 1 of the CFSA.

The meaning of the term “placement for adoption” does not merely refer to the physical placement of a child in a home . It is a wider concept which includes an examination of the factual and legal circumstances under which the child was placed in a particular home. It also includes an examination of the intentions and actions of all of the professionals and individuals involved in the physical placement of the child in a home. Only if all of these factors are properly aligned can it be said that a “placemnt for adoption” within the meaning of the CFSA has taken place.

I find that on the facts of this case as found by the Board, the Board was correct in finding that the “Society’s intention to place [C] in the home of the Applicants for the purpose of adoption is evident from all of its actions, and not simply her physical placement in the Applicants’ home.” It is also correct to find that M.S. H and S. H very much wanted the adoption and relied on the Society to carry out all of the required steps to make the legal adoption a reality.

However, because of the existence of the legislative requirements of the adoption process the above alone cannot effect a legal “placement for adoption” I find that the Board erred in the little weight it gave to this formal aspect of the process. In my view it is contrary to the intention of the legislation and its purposes to conclude, as the Board has done, that a child can be placed for adoption without the formal requirement for registration having been completed nor without the formal written notice of the plan for adoption having been given to the child’s Band to allow the Band to present an alternative plan. This latter formal requirement directly speaks to one of the stated section 1 purposes of the CFSA, namely , section 1(1)5. Which reads as follows,

5. To recognize that the Indian and native people should be entitled to provide wherever possible, their own child and family service, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family

In the best interests of this child and all children undergoing an adoption process, every step of the process must be clear and unambiguous. All rights that crystallize must be resolved before the process can go forward and finalized. No speculation must remain. Permanency planning in the best interests of children is exactly that and demands no less.

The term foster parents with a view to adopt is a practical one and not a legal one. It is a policy undertaken by the Society in the best interests of the children in its care which may become eligible for adoption. It is meant to cause as little change and disruption to these children as is possible. Without the formal requirements of the CFSA having been met, however, legally speaking those parents remain foster parents only. Reluctantly, I must conclude that M. S. H. and S. H. retained the status of foster parents under the Act when the Society decided to remove C. from their home on August 15, 2008 and the child had not at that point in time been placed with them for adoption within the meaning of the CFSA. Section 144 of the CFSA therefore cannot apply to the facts of this case.

Consequently the Society misled them when it wrote to them on October 16, 2008 indicating that they could appeal the Society’s decision to remove C. from their home to the Board. Despite the submissions of counsel to the contrary, this reference could only have meant a review to the Board pursuant to section 144 of the CFSA.

DISPOSTION

For all of these reasons I find that the Board lacks jurisdiction to conduct a hearing in this matter. An order for Certiorari is granted quashing the decision of the Board dated December 9, 2008 and an order of Prohibition preventing the Board from reconvening the hearing of the Respondents’ M. S. H. and S. H. application to the Board for a review.

While the mandate of this Court in these proceedings cannot go beyond the above order, I am compelled by the sad circumstances of this case, to make the following comments and suggestions. There is no question that the Society by its conduct in this matter has failed this child. I has failed C. by not meeting in a timely and efficient manner the legislative requirements of the adoption process of C. In the case of C. it has not met one of the legislation’s purposes, consistent with the best interests of the child which is to provide early “planning and decision-making to achieve permanent plans” for this child. It has committed the most serious fault that one can commit in child protection proceedings, and that is conducting this case as if there was no urgency to the final and complete resolution of this child’s plan of care. In this they have seriously erred.

The Band has failed this child by remaining silent throughout these proceedings. It has a privileged right and obligation under the CFSA in the best interests of the child but has not bothered to respond.

In my view, the 16 months which the child has spent in the care of M. S. H. and S H. should not be ignored in the best interests of this child. It continues to be a factor specified in the definition of best interests of the child found under the Adoption Part Vll of the CFSA (see 136(2)5. And 7.). The Society ought to obligate itself to complete the formal requirements to make M.S. H. and S.H. come within the operation of section 144 of the CFSA. The parties ought to attempt mediation forthwith to resolve their differences in the best interests of the child. Mediation is provided for in other parts of the CFSA. Doubtless, the Society has the resources to effect this process forthwith and owes it to the child to do it. Failing mediation, if M. S. H. and S. H. have come within the operation of section 144 then they ought to be able to continue their proceedings before the Board.

The last issue to be dealt with is costs. If the parties cannot otherwise resolve the issue, they shall have two weeks from the date of this endorsement serve and file their written submissions on the question of costs.

Released: January 26, 2009

M. Linhares de Sousa J.