CITATION: Denham v. Ontario College of Social Workers 2021 ONSC 5149
DIVISIONAL COURT FILE NO.: 597/21
DATE: 20210722
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Penny, Grace and Kurz JJ.
BETWEEN:
KELLEY DENHAM
Appellant
– and –
ONTARIO COLLEGE OF SOCIAL WORKERS AND SOCIAL SERVICE WORKERS
Respondent
Self-represented
M. Jill Dougherty and Alyssa Armstrong for the Respondent
HEARD: June 28, 2021
KURZ J.
Introduction
[1] The Appellant, Kelley Denham, appeals the October 7, 2019 and February 4, 2021 decisions of the Discipline Committee (the “Committee”) of the Ontario College of Social Workers and Social Service Workers (the “College”). On October 7, 2019 the Committee found the Appellant guilty of three counts of professional misconduct related to her role in the unauthorized disclosure of confidential information on the website of a children’s aid society. On February 4, 2021, the Committee imposed a penalty that included a reprimand and a six-month suspension, as well as various remedial terms, conditions and limitations. The six-month suspension will be reduced to five months if the Appellant complies with the Committee’s stipulations. The Committee ordered the Appellant to pay $7,500 in costs over a 36-month period.
[2] The Committee found that the Appellant had engaged in professional misconduct contrary to the Professional Misconduct Regulation (the “Regulation”) under the Social Work and Social Service Work Act, 1998, S.O. 1998, c. 31, in that she:
a. failed to comply with applicable privacy and other legislation;
b. violated the privacy provisions of the Child and Family Services Act of Ontario (the “CFSA”)[^1] where the contravention is relevant to her suitability to practice; and
c. engaged in conduct or performed an act relevant to the practice of the profession that, having regard to all circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
[2] The Appellant was also charged with offences under the Criminal Code, R.S.C. 1985, c. C-46, and the CFSA, the applicable child protection statute at the time of the charges.[^2] She was ultimately acquitted after a trial before the Ontario Court of Justice. Her primary argument in this appeal is that the Committee erred in finding her guilty of professional misconduct when the Ontario Court of Justice acquitted her of all charges arising from the same conduct. She adds that any findings by the Committee that are inconsistent with the Ontario Court of Justice ruling constitute palpable and overriding errors. She asserts that she was subjected to procedural unfairness. She further contends that the Committee erred in finding that her conduct was “disgraceful, dishonourable or unprofessional”. Her arguments against penalty echo those made on the merits.
[3] The College argues that the Committee made no errors in law and that it had before it sufficient evidence to make its findings of professional misconduct. The Committee is not bound by the findings of the Ontario Court of Justice, which ruled on a somewhat different set of facts, considered different issues and did so upon a different legal standard than the Committee. In any event, the third violation (related to conduct or an act that is “disgraceful, dishonourable or unprofessional”) is independent of any finding of violation of any statute. That misconduct allegation was clearly not before the criminal court and, in the submission of the College, is fully made out in the facts of this case.
[4] For the Reasons that follow, I would dismiss this appeal.
Background
[5] The facts that give rise to the College’s charges against the Appellant are contained in an agreed statement of facts (the ”ASF”) which is attached as Schedule “A” to these reasons.
[6] In brief, the Appellant is a registered social service worker and a member of the College. At the time of the events that led to her disciplinary proceedings, she was in conflict with Family and Children’s Services of Lanark, Leeds and Grenville (“FCSLLG”) regarding its involvement with her and her family.
[7] On February 3, 2016 the Appellant met and, using a camera pen, surreptitiously recorded a meeting with a former Director of Services and an Intake Manager of FCSLLG. She did so without the permission of the FCSLLG or the staff that she recorded. On February 17, 2016 the Appellant posted a video of that meeting onto an internet website: “liveleak.com”. The video that she posted included confidential FCSLLG Board of Directors documents. The video was then posted to both YouTube and about 80 Facebook accounts/groups.
[8] In February 2016, the Appellant used her computer to access the FCSLLG’s public website. After finding a document on the public website, she then deleted a portion of the URL associated with the document. Using the resultant URL (the “URL”), the Appellant was able to access a directory of FCSLLG folders, some of which were private and confidential. The Appellant accessed the FCSLLG public website approximately 378 times and successfully viewed and/or downloaded approximately 171 of its files. Many of these files contained confidential information about FCSLLG and its clients. The Appellant did all of this without the consent or authorization of FCSLLG or the clients.
[9] On April 18, 2016, the Appellant posted a screen shot of the URL to a Facebook group with 11,000 members. The URL linked to an Excel spreadsheet (“the spreadsheet”), containing the names of 285 clients involved with the FCSLLG (with cases opened between April and November 2015). One of those families was that of the Appellant. The information contained in the spreadsheet was:
client’s name (likely a parent or guardian);
whether the client had a child under five;
the caseworker assigned;
the response time needed and the actual time it took to respond to the child protection complaint;
notes of explanation as to why some response times were not reached; and
Eligibility Spectrum Codes (the “Codes”).
[10] The portion of the spreadsheet with the Codes indicated the type and severity of abuse (physical abuse, neglect, parent capacity, etc.) alleged against the family in question. The interpretation of the Codes could be found by members of the public on the Ministry of Children and Youth Services website. A printout of the Ministry document that interprets the Codes was filed on consent as an exhibit at the hearing before the Committee.
[11] Along with the URL, the Appellant posted a message stating: “Freedom of speech allows for the sharing of publicly available information. My name is on this list. If your name is on this list too. please message me [sic]” She also posted a Toronto Star article entitled “Children’s Aid Families’ Names Posted Online” to her Facebook page, along with the comment “this might have been me”. The posting attracted some critical comments from members of the public, objecting to the disclosure of confidential information.
[12] As mentioned, as result of the Appellant’s posting of the video and the URL, she was charged with a number of offences under the Criminal Code and the CFSA. The CFSA charges were prosecuted under the Provincial Offences Act, R.S.O. 1990, c. P.33. While she was originally charged with three Criminal Code offences, she was tried on only one: “that between 31 January 2016 and 18 April 2016, she did fraudulently and without colour of right, use, or cause to be used, directly or indirectly a computer system with intent to commit an offence under s. 430 [mischief to computer data] in relation to computer data”, contrary to s. 342.1(1)(c) of the Criminal Code.
[13] The CFSA charges alleged breaches of sections 45(8) and 76(11) of that Act. Those provisions prohibited anyone from “publish[ing] or mak[ing] 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” (s. 45(8)); or
• “a witness at or a participant in a hearing, or a party to a hearing other than a society” (s. 76(11)).
[14] While not cited by the presiding judge at the Appellant’s trial, CFSA s. 76(11) is inapplicable to the facts of this case. It relates to a hearing regarding the inclusion of an alleged abuser in the Child Abuse Registry. The Committee did not rely on s. 76(11) in its decision.
[15] On July 10, 2019, the Committee heard the College’s complaint about the Appellant’s conduct. At that time, her Criminal Code/CFSA proceedings were still pending. On October 7, 2019, the Committee found the Appellant guilty of all three allegations of professional misconduct with which she stood charged (the “discipline decision”).
[16] The Committee concluded, on a balance of probabilities, that the Appellant had contravened CFSA s. 45(8). It held that she had published the spreadsheet by posting the URL, along with comments encouraging people to go to the spreadsheet and to determine whether their names were on the “list”. The Committee also held that this had the effect (on a balance of probabilities) of identifying a child, parent, member of the family or guardian involved in a child protection proceeding.
[17] The findings of the Committee were summarized at para. 49 of its penalty decision, as follows:
Conclusion
[49] For the reasons set out above, the Panel finds on a balance of probabilities that the Member is guilty of professional misconduct as alleged in the Notice of Hearing. The Member used a computer to access documents on the FCSLLG website that were sensitive and confidential in nature, and the Member understood that the information contained in those documents was sensitive and confidential. The Member accessed the documents deliberately, as evidenced by the number of times she accessed the website (378) and the number of files she viewed or downloaded (171). The Member posted the URL to Facebook, which allowed members of the public to access those sensitive and confidential documents. The Member did not simply post the image of the URL without any context; rather, she included a statement encouraging people to view the document, saying: “My name is on this list [referring to the Report accessible on the URL]. If your name is on this too. Please message me”. The Panel finds that the Member contravened s. 45(8) of the CFSA; that the contravention was relevant to the Member’s suitability to practice; that the Member failed to meet the standards of the profession; and that the Member’s conduct would reasonably be regarded as disgraceful, dishonourable or unprofessional.
[18] The Appellant’s Criminal Code/CFSA trial took place on April 18 and December 17, 2019. On May 1, 2020, Justice Charles D. Anderson of the Ontario Court of Justice released his decision, acquitting the Appellant of all charges. Regarding the criminal charge of mischief to data, Anderson J. found that “there was here no obstruction, interruption or interference with the data” on the FCSLLG website. She did copy “252 documents from the FCSLLG website and the hyperlink which, if followed by others by a simple click, would lead them directly to and open [the] spreadsheet… information that FCSLLG intended to be private”. However, she did not “alter or destroy any computer data on the website of the FCSLLG. The documents remained available and unaltered at all times.” Further, the FCSLLG website always remained in its control and there was no fraud involved. Moreover, the Appellant did not alter or destroy any computer data on the website. The documents on the website remained available and unaltered at all times.
[19] Regarding the CFSA charges, Anderson J. relied on the decision of the Supreme Court of Canada in Crookes v. Newton, 2011 SCC 47, [2011] 3 S.C.R. 269, an internet defamation case. He found that the Appellant did not “publish” the FCSLLG documents. She merely provided the URL reference to their existence. Even though the Appellant posted the URL, she did not control its contents. This lack of control meant that she did not publish them.
[20] Further, Anderson J. cited the decision of this court in Children’s Aid Society of Hamilton-Wentworth v. D.-G. (E.) (1995), 1995 10671 (ON SC), 21 O.R. (3d) 643 (Div. Ct.), in support of a finding that ss. 45(8) and 76(11) required “a link or coupling between the identification of an individual and their involvement in a proceeding or hearing”. Anderson J. found that the Crown failed to prove that “necessary link”.
[21] After the decision by Anderson J. was released, the Appellant provided it to the Committee, which had yet to decide on her penalty. The Committee considered those reasons, but did not change its earlier findings.
[22] On February 4, 2021, the Committee released its reasons on penalty and costs, set out above. It found that:
the Appellant’s misconduct in disregarding confidentiality was serious and called for a suspension, to meet the goals of public protection and specific and general deterrence;
a six-month suspension (with one month remitted) fell within the range of appropriate penalties in its previous decisions;
the terms, conditions and limitations served a remedial and rehabilitative function and were also in line with previous penalties that it had imposed; and
its findings of misconduct were linked directly to the Appellant’s conduct of posting and encouraging others to view confidential and private information of 285 families. Further, even if its findings that the Appellant contravened the CFSA and privacy legislation were open to question as a result of her acquittal in the criminal proceedings, it also found that by disclosing confidential records and encouraging others to access to the records, the Member engaged in conduct that other members of the profession would regard as disgraceful, dishonorable or unprofessional. The Committee concluded that this finding alone supports the penalty that it imposed.
[23] The Committee imposed the following penalty:
(a) a reprimand;
(b) a six-month suspension (one month of which would be suspended and remitted upon proof of compliance with certain of the terms and conditions imposed as part of the penalty);
(c) remedial terms, conditions and limitations, including completion of an ethics course prescribed by the College, reviewing the College’s Privacy Toolkit for Social Workers and Social Service Workers, and meeting with the Registrar and/or an expert designated by the Registrar to discuss the Appellant’s misconduct, identify strategies for preventing recurrence and develop a learning plan; and
(d) additional terms, conditions and limitations when the Appellant returns to the practice of social service work. The Appellant will be required, during the first 12 months following her return to practice, to notify the Registrar of her place(s) of employment and notify the employer(s) of the Committee’s decision. If the Appellant operates a private practice, she shall arrange supervision by an approved supervisor for a two-year period).
[24] The College’s costs award of $7,500, payable within 36 months, was the amount requested by the College even though its actual costs exceeded $40,000. It reduced its costs request to recognize the Appellant’s financial circumstances.
Standard of Review
[25] Subsections 31(1) and (4) of the Social Work and Social Service Work Act allow a statutory right of appeal from the decision of the Committee. Under s. 31(4):
(4) An appeal under this section may be made on questions of law or fact or both and the court may affirm or may rescind the decision of the committee appealed from and may exercise all powers of the committee and may direct the committee to take any action which the committee may take and that the court considers appropriate and, for the purpose, the court may substitute its opinion for that of the committee or the court may refer the matter back to the committee for rehearing, in whole or in part, in accordance with any directions the court considers appropriate.
[26] As the Supreme Court of Canada stated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37 (“Vavilov”), when the legislature has provided a statutory right of appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. Questions of law are subject to the standard of correctness, while questions of mixed fact and law are subject to the palpable and overriding error standard unless there is an extricable issue of law: Vavilov, at para. 37; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 19 and 26-37.
[27] A palpable error is one that is readily or plainly seen. An overriding error is one that must or may well have altered the result. "Where an appeal raises a pure or an extricable issue of law, that issue is reviewed on a correctness standard: Dr. Jonathan Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 (Div. Ct.), at para. 16.
Issues
[28] This appeal raises the following issues:
Was the Committee procedurally unfair to the Appellant?
Was the Committee bound by the findings of Anderson J. in the Criminal Code/CFSA proceedings?
Did the Committee commit any extricable errors of law or palpable and overriding errors in finding that the Appellant breached s. 45(8) of the CFSA?
Did the Committee commit any extricable errors of law or palpable and overriding errors in finding that the Appellant’s conduct was disgraceful, dishonourable or unprofessional?
Was the penalty that the Committee imposed on the Appellant based on a wrong principle or was it “clearly unfit”?
Issue No. 1: Was the Committee procedurally unfair to the Appellant?
[29] The Appellant argues that the Committee was procedurally unfair to her in two ways. First, it did not allow her to offer evidence at the hearing, even when asked a factual question by a Committee member during the hearing. Second, it allowed the College’s last-minute request to file the print-out of the Codes from the Ministry of Children and Youth Services website as an exhibit to supplement the Agreed Statement of Facts (the “ASF”). She argues that both of these decisions were prejudicial to her.
The Appellant Advised the Committee that the only Evidence before it would be the ASF
[30] The Appellant signed the ASF approximately two weeks before the commencement of the Committee hearing. According to the transcript of the hearing, at the commencement of her submissions, the Appellant advised the Committee as follows:
The facts of this case are agreed on. The area of contention is whether these facts constitute publication under CFSA, which is the Child and Family Services Act, so as whether my conduct outside of the practice of social service work reflects negatively on the---
[31] At that point a Committee member asked the Appellant to speak up. When she resumed, she moved on to other aspects of her submissions. She soon verbally referred to alleged facts that were not in the ASF, leading College counsel to object. When requested to stick to the ASF, Ms. Denham’s response was that she was just getting to the ASF. After she completed making her submissions, Committee member Mak decided to ask a question, while acknowledging that he may not be entitled to do so. His initial exchange with the Appellant went as follows:
MR. MAK: I do have a question for you. And, ILC [independent legal counsel] please stop me if I’m making a mistake through these questions. My question to you is, earlier, you mentioned that, you know, when you were posting this was to encourage other users so that they could report the content to have it removed. How did you come across the content initially of this?
MS. DENHAM: On the website?
MR. MAK: Of the website.
MS. DENHAM: So, I was researching for my complaint. I Googled -- I think I was looking at annual reports of the agency over the last years to look for changes. And so, I was viewing a PDF of an annual report, and I wanted to see what other documents were on the website. So, I went to my URL address bar, and I deleted just the name of the document to bring me to where on the website the document was located. And, that’s how I found this directory of other documents.
[32] At this point, Mr. Mak sought to ask a “follow-up” question. Counsel for the College objected, stating “the challenge that we have is we have an Agreed Statement of Facts --- and so we shouldn’t really, in my submission, go outside the Agreed Statement of Facts.” The Chairperson agreed and College counsel continued:
it becomes problematic because some of the information that might be given in response to the questions might be disputed, but I don’t have witnesses here, or other evidence here to address it. So, I have---
[33] Mr. Mak then withdrew his question without objection.
[34] Despite the claim of unfairness, the Appellant also argued before this court that the only evidence before the Committee should have been the ASF. It is hard to square those two submissions.
[35] I see no error or unfairness. The parties had agreed that the evidence would go before the Tribunal by way of the ASF. The Appellant herself confirmed that method of proceeding to the Committee. She did not take the position before the Committee that she was entitled to call evidence to supplement the ASF. She did not dispute College counsel’s argument on either of her two objections that the evidence before the Committee should not stray outside the bounds of the ASF.
[36] The Appellant also now alleges that the College’s consent filing of the print-out of the Codes was improper. She claims that she had no notice of them, that the issue only arose the day before the hearing and that she was taken by surprise.
[37] I find no impropriety or unfairness in the filing of the Codes. They were cited in the ASF, which the Appellant signed some two weeks before the hearing began. She agreed in the ASF that she was familiar with the Codes. There is no evidence that the Appellant was taken by surprise or prejudiced by them. She did not object to their use at the hearing.
[38] In sum, there was no procedural unfairness in the Committee’s hearing process.
Issue No. 2: Was the Committee bound by the findings of Anderson J. in the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)/[CFSA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html) proceedings?
[39] The Appellant argues that the findings of Anderson J. override those of the Committee, so that any findings by the Committee which are inconsistent with those of Anderson J. constituted palpable and overriding errors. Thus, the trial judge’s finding that she did not commit an offence under s. 45(8) of the CFSA is binding in these proceedings.
[40] The College argues that the Committee is not bound by Anderson J.’s findings for three reasons. First, the evidentiary standard in criminal and quasi-criminal offences (like those prosecuted under s. 45(8) of the CFSA), require proof beyond a reasonable doubt. Civil proceedings, like those before the Committee, require proof on the lower balance of probabilities standard: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras 49-53. Thus, the fact that Anderson J. could not find beyond a reasonable doubt that the Appellant published the URL and the documents to which it linked for the purposes of a quasi-criminal proceeding does not preclude the College from making that finding on a balance of probabilities.
[41] Second, the College argues that the evidence before Anderson J. was different than that before the Committee. On the one hand, the Anderson J. decision makes no reference to the ASF. It does not appear to have been in evidence at the Criminal Code/CFSA trial. However, the ASF, along with the attachments to it and the Codes, were the only evidence before the Committee. The ASF contains admissions by the Appellant as to her conduct. Attachments to the ASF include printouts of the Appellant’s comments accompanying her posting of the URL and disapproving comments by two members of the community. They were very critical of the posting of the URL and the resulting disclosure of the confidential information concerning FSSLLG clients.
[42] Further, while the spreadsheet was in evidence before him, Anderson J. makes no reference to the Codes. The spreadsheet named families and used a letter code to delineate the severity of the family’s alleged abuse. However, those letter codes could only be interpreted with the document available on a government website. That documentation was not cited in Anderson J.’s decision and does not appear to have been placed in evidence before him. For its part, the Committee had the Codes before it and was aware of their meaning.
[43] On the other side of the coin, Anderson J. heard from live witnesses, who were the basis of a great deal of his factual findings. The evidence of those witnesses was not presented to the Committee.
[44] Third, the decision of Anderson J. dealt only with offences under the Criminal Code and the CFSA, not whether or not the Appellant’s conduct breached her professional obligations. In particular, even if she did not technically breach the CFSA, that finding does not determine whether the Appellant engaged in conduct that members of the College would reasonably perceive as dishonourable, disgraceful or unprofessional.
[45] I agree with the arguments of the College. The proceedings before the Ontario Court of Justice were based on a different evidentiary standard than those before the Committee, involved different evidence and considered different issues.
[46] That being said, it is open to this court to consider Anderson J.’s findings of law regarding the elements of s. 45(8) of the CFSA without being bound by them.
Issue No. 3: Did the Committee commit any extricable errors of law or palpable and overriding errors in finding that the Appellant breached [s. 45(8)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html#sec45subsec8_smooth) of the [CFSA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html)?
[47] Section 45(8) of the CFSA reads as follows:
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.
[48] The Appellant argues that the Committee’s finding that she breached s. 45(8) was based upon two erroneous findings, namely:
It found that she published the URL and the documents to which it linked, including the spreadsheet; and
It found that by doing so, she identified “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”, per s. 45(8).
The Appellant’s Posting of the URL was Publication
[49] The first and key error alleged by the Appellant is that the Committee found that she published the spreadsheet and other materials that could be accessed through the URL link. Like Anderson J., she relies on the decision of the Supreme Court of Canada in Crookes v. Newton to support her contention. In Crookes, the Supreme Court set out the rules to determine whether the posting of a hyperlink to defamatory materials on the internet constitutes publication for defamation law purposes. Since the term “publish” found in s. 45(8) is not defined in the CFSA, the Appellant argues that the Crookes analysis of publication in the internet defamation context applies to it.
[50] In Crookes, the Supreme Court of Canada found that the mere publication of a hyperlink to defamatory content was not sufficient to prove publication of that content under defamation law. Writing for the majority, Abella J. described hyperlinks as being “in essence, references”. They direct readers to other sources. Those sources are often produced by someone other than the person who inserted the hyperlink in the primary article (the one that links to the defamatory content). While the author of the primary article has control over the existence of the hyperlink and what content the link is attached to, she or he has no control over the content of the secondary article to which they have linked: at paras. 27, 30. That control resides in the hands of the person controlling the site where the secondary article is located.
[51] Abella J. and the majority in Crookes worried about the potential of libel “chill” on the internet arising if a person who merely posts a link to a potentially defamatory article is liable for its contents: at para. 36. However, Abella J. continued, stating that there are instances where the person who hyperlinks to defamatory content may be liable for defamation. That would occur “if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually expressed something defamatory”: para. 40, emphasis in original.
[52] In their brief concurring opinion, McLachlin C.J. and Fish J. put the matter succinctly: “In sum, in our view, a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to”: at para. 50.
[53] In other words, establishing whether the person who posts a hyperlink to defamatory content publishes it for the purposes of defamation law requires a contextual determination. The court must examine whether an expression which accompanies the posting of the hyperlink adopts or endorses the defamatory content of the materials that are being linked.
[54] Relying on Crookes, the Appellant argues that in order to publish the URL and the documents to which it linked, she had to have control of the confidential information accessible through the URL, adopt it or endorse it.
[55] The College responds that the balancing process in which the Supreme Court engaged in Crookes came within the framework of the law of defamation. That law attempts to balance the rights of the individual to protect and vindicate their reputation on the one hand and the right of free expression on the other, all seen through the lens of the need to protect internet expression from libel “chill”. That framework does not necessarily apply within the context of child protection.
[56] I agree. Section 1(1) of the CFSA proclaims that “[t]he paramount purpose of this Act is to promote the best interests, protection and well-being of children.” In Children's Aid Society of Hamilton-Wentworth v. D. (1988), 1988 4747 (ON SC), 63 O.R. (2d) 352 (U.F.C.), Mendes da Costa J. considered the paramount purpose provision of the CFSA in interpreting a section of the CFSA that is identical to s. 45(8) (but differently numbered). He wrote that the provision:
mandates a comprehensive and overriding prohibition on the publication of identifying criteria: no person shall "publish or make public" information that has the "effect of identifying" the parties designated. It is clear that the subsection is designed for the "protection of the innocent", and that the interests of a child in a child protection application have been recognized as social values of "superordinate importance", values which justify a departure from the principle of "openness". Moreover, as these interests require protection at all stages of a child protection proceeding, s. 41(8) is general in its terms.
[57] In other words, the balancing of factors that applies to the law of defamation is not identical to the balancing process in child protection law. The key difference is the paramount concern for the protection of children found in the CFSA, which is a critically important societal concern that was not broached in Crookes. It allows an interpretation of the term “publish” in s. 45(8) that is broader than that in Crookes; one that would cover the conduct of the Appellant in this case.
[58] Moreover, even if the Crookes decision is binding in regard to s. 45(8), the Committee was alive to its requirements. Both parties cited Crookes in their submissions. The Committee found that it could not rely on mere hyperlinking to the FCSLLG website to find that the Appellant had published the materials accessed by the URL. It found that she did more, referring to the type of situation hypothesized in Crookes, in writing the following:
In this case, the Member did more than simply publish a hyperlink “by itself”. She actively encouraged people to follow the URL. This is more akin to the situation discussed in the concurring reasons of McLachlin CJ and Fish J at paragraph 50 [of Crookes]: “a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.” The Member knowingly published the information.
There is no suggestion that the Member adopted the content or endorsed the information. However, she expanded the audience of people who could access the confidential information in the Report by posting the URL on Facebook and encouraging individuals to go to the site.
[59] In sum, the Committee made no errors of law or palpable and overriding errors in its finding regarding the Appellant’s breach of s. 45(8). Assuming Crookes applies to the definition of s. 45(8), the Committee had evidence before it which allowed it to come to the conclusions cited above. I also note that the Appellant continued posting the URL even after some community members complained about her breach of the privacy of FCSLLG clients.
The Appellant identified “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” per [CFSA s. 45(8)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html#sec45subsec8_smooth)
[60] The Appellant contends that the Committee erred in finding, under s. 45(8), that she identified “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.” She argues that she said nothing in her internet posts about court proceedings and that the spreadsheet made no reference to them. Even the references to the Codes in the spreadsheet dealt with a spectrum of alleged abuse, rather than court proceedings. A child protection agency is not required to commence court proceedings for every allegation of abuse, even if severe. While she did not specifically refer to it, s. 1(2)(2) of the CFSA provides that an additional purpose of the Act is “[t]o recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.”
[61] Evidence was called at the criminal trial that was not placed before the Committee as to the difficulty of determining whether any of the cases mentioned in the spreadsheet were the subject of court proceedings. That evidence also disclosed that six cases were the subject of court proceedings. Of course, that evidence could not be relied upon by the Committee and cannot be considered by this court.
[62] That being said, the College argued before the Committee and this court that at least some of the names on the spreadsheet were associated with allegations of “extremely severe” or “moderately severe” child abuse. The College contends that it was open to the Committee to infer that, on a balance of probabilities, the publication of the spreadsheet had the effect of identifying at least one child, parent or foster parent who was involved in a child protection proceeding, contrary to CFSA s. 45(8).
[63] The Committee accepted that reasoning, writing:
[34] The publication of the URL where the Report, including client names, could be accessed, along with information about the Eligibility Spectrum Codes informed the public of the severity of abuse and neglect alleged in each case. The Panel agrees with the College that, for at least some of the clients listed on the Report, the Eligibility Spectrum Codes indicate that it was more likely than not that the children involved were the subject of a child protection proceeding under the CFSA. The Member argued that the Report contained information about newly opened files and that the clients named were “only under investigation” and with no evidence or guarantee that they were participants at a hearing. Even if the Report contained only intake information, it included cases where the Eligibility Spectrum Code indicates “Extremely Severe” abuse or neglect, where a child protection proceeding likely would have been initiated (even if there was never a “hearing” under s. 45 of the CFSA). The Panel finds on a balance of probabilities that the Member published information that had the effect of identifying a child that is the subject of a protection proceeding or the child’s parent or foster parent.
[64] Here, the spreadsheet included letter references to the level of alleged abuse for each family, as described in the Codes. Those letter references could be interpreted by any member of the public who looked them up on the Ministry of Children and Youth Services website. The ASF sets out that the Appellant was aware of that information as well. Thus, the Committee had evidence before it that a member of the public who compared the letter references to the Codes in the Spreadsheet to the Codes themselves would understand the severity of the alleged abuse. It was more likely than not that some of those families would be involved in child protection court proceedings.
[65] The Committee is a specialized tribunal, with expertise in social work and social services work. It was open to the Committee to infer that the most severe cases of alleged abuse among the spreadsheet’s 285 families would likely include the names of some children, their parents or foster parents who were involved in a child protection court proceeding.
[66] Following the decision in Children's Aid Society of Hamilton-Wentworth v. D., and the reference to the paramount purpose provision of the CFSA, the Committee made no error in law in interpreting s. 45(8) in a manner that maximized the privacy of children, their families and their foster parents.
[67] In considering s. 45(8) in Children's Aid Society of Hamilton-Wentworth v. D.-G. (E.), Rosenberg J. said that “[i]t must, to offend the Act, require disclosure that there are proceedings either directly or impliedly and couple the person identified with those proceedings” (emphasis added).
[68] It was open to the Committee, on the evidence before it, to find that the Appellant’s posts impliedly disclosed the type of information forbidden to be disclosed by s. 45(8).
[69] In sum, the Committee made no errors of law or palpable and overriding errors in finding that the Appellant breached s. 45(8).
Issue No. 4: Did the Committee commit any extricable errors of law or palpable and overriding errors in finding that the Appellant’s conduct was disgraceful, dishonourable or unprofessional?
[70] The third charge against the Appellant was that she engaged in conduct or performed “an act relevant to the practice of the profession that, having regard to all circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.” The terms “disgraceful”, “dishonourable” or “unprofessional” were defined by the Committee as follows:
Disgraceful – this term is used to describe the most serious type of misconduct involving a moral failing on the part of the Member. It describes conduct that is so shameful that it casts doubt on the Member’s fitness to practice the profession.
Dishonourable – this is typically describes [sic] conduct with an element of moral failing. A member who engages in dishonourable behaviour knows or ought to know that the conduct is unacceptable.
Unprofessional – this term can be used to capture conduct that does not necessarily represent a moral failing, but involves conduct that falls below the standards expected of professionals.
[71] The test is not merely whether the public at large would consider the Appellant’s conduct to be disgraceful, dishonourable or unprofessional, but whether members of the College would reasonably find it to be.
[72] The Appellant’s main argument is that the Committee’s decision was infected with the same legal error as its findings regarding her breach of the CFSA. In other words, since she did not publish the URL or the confidential documents to which it was linked, she could not have acted in a manner that could reasonably be regarded as disgraceful, dishonourable or unprofessional.
[73] Given my conclusion concerning the breach of s. 45(8), this argument must fall. Even if I am in error, there was sufficient evidence that the Appellant, a social services worker, knowingly disclosed confidential information of hundreds of clients of the FCSLLG. She did so without the consent of the child protection agency, or the families involved and without colour of right. She knew the significance of the information that she posted but showed no concern for the confidentiality of the affected families. She also surreptitiously recorded a meeting with two employees of FCSLLG and posted the video, along with confidential FCSLLG documents, on the internet without the society’s consent.
[74] The Appellant raises two further arguments to challenge the Committee’s finding, claiming that she acted:
in her own capacity, as a parent involved with FSCLLG, not as a social services worker, and
in good faith and on behalf of the public so that FCSLLG’s website vulnerabilities could be remedied.
[75] The College acknowledged that the Appellant was acting in her own personal rather than professional capacity. But it argued that even so, her manner of treating the confidentiality of the records of FCSLLG and the affected families reflects poorly on her suitability to practice social services work. The Committee agreed. It stated that her conduct:
sends a broader message about her respect for confidential information…. [it] does not generate confidence in her approach to confidential and sensitive information within the scope of her practice as [a] social service worker.
[76] The Committee’s conclusions were open to it on the evidence. The applicable regulation does not require that the act in question be in a professional capacity, only that it be “relevant to the practice of the profession”: at s. 2(36). The Committee did not make a palpable and overriding error in finding that the Appellant’s conduct in dealing with an agency engaged in the practice of social work and the records of hundreds of families was relevant to the practice of the profession.
[77] I turn next to the argument of good faith. The problem with that argument is that the Appellant has offered no evidence that she ever attempted to inform FCSLLG of the weakness of its website security before publicly disclosing its confidential records and those of the affected families. Her freedom of speech statement accompanying the posting of the URL said nothing about FCSLLG’s lax security. Instead, as the Committee noted, she defended the “sharing” of the confidential information with the statement “people should know”. Further, as the Committee noted, other people in the community commented on the Appellant’s posting of the URL, “indicating that the information should not be posted on Facebook and making comments about the private nature of the information being shared, indicating that at least one person must have looked at the URL and seen the Report.” In sum, the Committee’s finding that the Appellant’s “main purpose was to disseminate the confidential information to the public” was available to it on the evidence.
[78] During the argument of this appeal, the Appellant stated that she had supplied evidence of her attempts to notify FCSLLG of its poor website security. It was contained in an affidavit submitted to the Committee in support of an unsuccessful request to stay the discipline proceedings until after the Criminal Code/CFSA proceedings were completed. It was not part of the evidence at the discipline hearing. Nonetheless, at the Appellant’s request, and with no objection by the College, the court reviewed that affidavit.
[79] The Appellant’s affidavit, dated November 18, 2017, was originally prepared in the context of a motion in a class action lawsuit. The lawsuit was commenced by a number of affected families against FCSLLG, some of its employees, the Crown and others, including the Appellant, as a result of her posting the URL. In that affidavit, the Appellant offers her account of how she “came into possession of sensitive and confidential documents created by [FCSLLG], as well as the steps [she] took to bring this to the attention of FCSLLG , the news media and the Government.” She begins by stating that when she discovered she could access the documents in question, she downloaded and reviewed them.
[80] Under the heading of “The Steps I Took to Call Attention to the FCSLLG Website Vulnerability”, the Appellant begins by stating the following:
I wanted to bring to the public’s attention that FCSLLG was making sensitive and confidential documents available on its public website. I did this in several ways. [Emphasis added.]
Taking the Appellant literally and in her own words, her motivation was to bring the vulnerability to the attention of the public, not FCSLLG.
[81] The Appellant then recounted the steps that she took to publicize the “FCSLLG Website Vulnerability”. It is clear that she posted her video to a file sharing website and to various media outlets before attempting to provide it to FCSLLG. She began by describing a “satirical video” she had created and posted, which is the video that she surreptitiously recorded with her camera pen in her meeting with FCSLLG staff. She stated that she first posted this video to a video sharing platform called LiveLeak on February 10, 2016, the day that she recorded the meeting. That same day, she sent the video to three news agencies, the Ottawa Citizen, the CBC and the Toronto Star. Three days later, she emailed the video to her local newspaper, along with her description of its contents as containing “snips of FCSLLG documents that were available to the public.” She continued, stating that she emailed the video to the FCSLLG board of directors, the Minister of Children and Youth Services, her two local MPPs, and various other news agencies.
[82] In other words, the video, with confidential FCSLLG documents, was available to the public on the internet and to a number of media outlets before the Appellant notified FCSLLG of its contents or any alleged concern with its privacy. A few days later, the Appellant surreptitiously recorded a telephone conversation with a FCSLLG employee who confirmed receipt of the video. The Appellant then posted that recording to the internet.
[83] The Appellant then recounted that on April 11, 2016, she emailed three other news services and “misrepresented” (her word) the source of the FSCLLG documentation in her possession. She claimed that the FCSLLG gave her the documents when she had actually downloaded them from the FCSLLG website.
[84] The Appellant then explained that she posted an image of the URL on April 18, 2016 on a Facebook site “after knowing that the FCSLLG site was unsecured for the past two months”.
[85] What is notable in the Appellant’s entire narrative is an absence of evidence that she ever wrote to FCSLLG, warning that she would post either the surreptitiously recorded video with documentation or the image of the URL before she did so. While she claimed in her affidavit that she expected the FCSLLG to be aware of its breaches, she did little to nothing to directly inform it of those breaches.
[86] In sum, the Committee was entitled on all of the facts before it to find that:
the Appellant had demonstrated her disregard for the importance of the rights to privacy and confidentiality of 285 families involved with FCSLLG and the potential adverse impact that publication or dissemination of their confidential information could have on them; and
she should have known better than to act as she had with regard to the confidential information of FCSLLG and the 285 families.
[87] As a tribunal with expertise in the standards of social work and social services work, the Committee was entitled to find that the conduct of the Appellant would reasonably be regarded by members of the College as disgraceful, dishonourable or unprofessional. That finding is entitled to deference. I find no extricable error in law or palpable and overriding error in that finding.
Issue No. 5: Was the penalty that the Committee imposed on the Appellant based on a wrong principle or was it “clearly unfit”?
[88] The standard of review on an appeal from a penalty decision accords deference to the tribunal below. To reverse the Tribunal’s penalty decision, it must be shown that the exercise of discretion was based on a wrong principle, a failure to consider a relevant principle, a misapprehension of the evidence or that the penalty was clearly unfit. As this court stated in Dr. Jonathan Mitelman v. College of Veterinarians of Ontario, at para. 18:
To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances. A fit penalty is guided by an assessment of the facts of the particular case and the penalties imposed in other cases involving similar infractions and circumstances. [Citations omitted.]
[89] In this case, the Committee’s penalty decision cited a number of its relevant precedents regarding similar breaches of the College’s regulations. The College argues that the Committee’s penalty decision was proportionate and in line with its previous decisions in similar circumstances. This court has been offered no authorities that contradict that position.
[90] The Appellant’s argument regarding penalty is twofold, and generally recounts arguments cited above. First, she says that the Committee should have been guided by the decision of Anderson J. and found that she committed no professional misconduct. I have already dealt with that argument.
[91] She further argues that in its penalty decision, the Committee incorrectly states that she could have taken steps other than posting the video and URL image if she were concerned with FCSLLG’s website security. As noted earlier, there was plenty of evidence to support the Committee's conclusion.
[92] In sum, there is no reason to find that the penalty that the Committee imposed on the Appellant was based on a wrong principle or was clearly unfit.
Conclusion
[93] For the reasons cited, this appeal is dismissed.
Costs
[94] In its costs outline, the College requests costs of $5,000 for this appeal if it is successful. Its partial indemnity costs are $57,329.11 and full indemnity costs are $93,740.54. However, counsel for the College indicated that she would only be seeking costs of $1,000. Costs are awarded to the College in the requested amount of $1,000 all inclusive. The costs shall be paid within 3 months.
M. Kurz J.
I agree _______________________________
M.A. Penny
I agree _______________________________
D. Grace
Released: July 22, 2021
Schedule “A”
Agreed Statement of Facts (with schedules omitted).
Now and at all times relevant to the allegations, Kelley Jean Denham (the “Member”) was a registered social service work member of the Ontario College of Social Workers and Social Service Workers (the “College”).
At all times relevant to the allegations, the Member was a client of the Family and Children’s Services of Lanark, Leeds and Grenville (‘FCSLLG”), and had had interactions with them with respect to her children. The Member had never worked with FCSLLG in the course of her professional employment or scope of practice.
In the context of a dispute with FCSLLG, on or about February 2016, the Member used her computer to access the FCSLLG website. After finding a document on the public website, the Member then deleted a portion of the URL associated with the document and was able to access a Directory of Folders. The documents were organized by year and month within the year. The Member then accessed documents that were stored in the April and May folder of 2013 and 2015.
In total, the Member accessed the public website approximately 378 times and successfully viewed and/or downloaded approximately 171 files. Many of these files contained confidential information about FCSLLG. One document in particular contained confidential information about 285 clients of FCSLLG. The Member was not involved in providing care for those clients, nor did the Member have consent or authorization to access their information. This document was [an] Excel Spreadsheet containing the names of new clients to FCSLLG with cases opened between April 2015 and November 2015 (“the Report” attached [to the Agreed Statement of Facts] as Schedule “A”). The Report included the following information:
a. client’s name (likely a parent or guardian);
b. whether the client had a child under five;
c. the caseworker assigned;
d. the response time needed and the actual time it took to respond to the child protection complaint;
e. notes of explanation as to why some response times were not reached; and
f. Eligibility Spectrum Codes.
The Member was familiar with the Eligibility Spectrum Codes, which could be found in the Ministry of Children and Youth Services website. The codes indicate the type and severity of alleged abuse (physical abuse, neglect, parent capacity etc.)
In addition to the Report, the Member found other documents with more client-identifying information. The Member accessed documents that were summaries of insurance claims which identified sexual abuse survivors, as well as a report from the Provincial Advocate for a child whom the Member was familiar with, a Coroner’s Pre-Inquest Report, identifiable information in Board Meeting Minutes and some resumes.
The Member took a screenshot of the URL which led the user to the Report and posted it on the wall of the Facebook group, “Smith Falls Swap Shop”. This Facebook group was a members-only group of about 11,000 for the Smith Falls community where FCSLLG carried out services. The Member posted the screenshot along with the message “Freedom of speech allows for the sharing of publicly available information. My name is on this list. If your name is on this list too. please message me [sic]” (a copy of screenshot attached [to the Agreed Statement of Facts] as Schedule “B”).
The Member also posted a Toronto Star article entitled “Children’s aid families’ names posted online” to her Facebook page with the comment “this might have been me” (A copy of screenshot attached [to the Agreed Statement of Facts] as Schedule “C”).
On February 3, 2016 the Member had a meeting with [redacted], former Director of Services and [redacted], Intake Manager, both of FCSLLG. The Member surreptitiously firmed the interview using a camera pen, without the permission of the FCSLLG or the staff that appeared in the video. The video contained confidential FCSLLG Board of Directors documents. The video was first posted on February 17, 2016 to the website “liveleak.com” under the channel “Space Coyote”. The video was then posted to both YouTube and in or around 80 Facebook accounts/groups.
The Member was charged with a number of offences under the Criminal Code and Provincial Offences Act by reason of the conduct described above. While some of those charges have been withdrawn, the Member is currently charged under the Criminal Code with the following offences:
a. Section 430(1.1)(c) – interference with lawful operation of the Family and Children’s Services of Lanark, Leeds and Grenville;
b. Section 430(5) – committing mischief in relation to computer data by wilfully without legal justification or excuse and without colour of right denying access to any person, computer data to wit: the website of Family and Children’s Services of Lanark, Leeds and Grenville; and
c. Section 342.1(1)(c i) – the indirect or direct use of a computer to fraudulently and without colour of right to obtain directly or indirectly a computer service, to wit: the data storage contained on the computer service of Family and Children’s Services of Lanark, Leeds and Grenville.
- In addition, the Member is currently charged with the following Provincial Offences Act charges:
a. Publishing information that has the effect of identifying a witness or a participant in a hearing or a part to a hearing to wit: the names of 285 clients of Family and Children’s Services, contrary to sections 76(11) and 85(3) of the Child and Family Services Act of Ontario; and
b. Publishing information that has the effect of identifying a child who is a witness at or a participant in a hearing for the subject of a proceeding or the child’s parent or foster parent to wit: the names of clients of the clients of Family and Children’s Services, contrary to section 45(8) of the Child and Family Services Act of Ontario.
[^1]: Child and Family Services Act, R.S.O. 1990, c. C.11, as repealed by Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, s. 350, on April 30, 2018.
[^2]: As noted above, the CFSA has since been repealed on April 30, 2018.