CITATION: Segura Mosquera v. Child and Family Services Review Board, 2023 ONSC 5142
DIVISIONAL COURT FILE NO.: DC-21-2685
DATE: 20230926
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J.R. McCarthy, Sheard and Schabas JJ.
BETWEEN:
Gladys M. Segura Mosquera
Applicant
– and –
Children’s Aid Society of Ottawa (CASOTT)
Child and Family Services Review Board (CFSRB)
Ottawa Police Services Board
Respondents
Self-Represented
Brian Fisher for the Respondent, CASOTT
Brian A. Blumenthal for the Respondent, CFSRB
Vanessa Stewart for the Respondent, Ottawa Police Services Board
HEARD at Ottawa, by hybrid hearing,
on September 12, 2023
REASONS FOR JUDGMENT
SHEARD J.
[1] The applicant, Gladys M. Segura Mosquera (“Segura”), brings two matters before this court:
A motion to set aside the Order of Ryan Bell J. dated June 12, 2023, made under r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, dismissing the judicial review application as against the respondent, the Ottawa Police Services Board (“OPS”) (the “Dismissal Order”); and
An application for judicial review (“JRA”) of the following:
a) decisions made by the Children’s Aid Society of Ottawa (the “Society”) and the Child and Family Services Review Board (“CFSRB”) in respect of “the applicant’s general and particular complaints against” the Society;
b) the “OPS’s policies and procedures that allow its staff to base their investigations on outdated information and enter them in their reports”;
c) “the policies and procedures that allow The Children’s Aid Societies to harass and persecute a parent or guardian endlessly” and “deprive guardians labelled as having mental health issues of the opportunity to defend themselves and being screened, free of charge, by a competent and independent institution”; and
d) the “violation of the constitutional rights of the applicant by the respondents’ decisions, policies and procedures.”
[2] At para. 3 of the JRA, Segura identifies evidence on which she relies: Segura’s formal complaint to the Society’s Internal Complaints Review Panel (“ICRP”); the Society’s decision dated March 16, 2021; the decision of the CFSRB dated June 3, 2021; and Segura’s Appeal MA19-00173 against the OPS before the Information and Privacy Commissioner of Ontario (“IPC”).
[3] For the JRA to proceed as against the OPS, Segura must first be successful on her motion to set aside the Dismissal Order.
Motion to set aside Dismissal Order
[4] Segura lists as the following grounds for her motion to set aside the Dismissal Order: that the motion judge,
(1) erred in her analysis of r. 2.1.01;
(2) erred in her assessment of Segura’s record before her;
(3) gave insufficient weight to relevant considerations;
(4) erred in law by denying the court’s jurisdiction; and
(5) was wrong in her decision, which amounted to an injustice.
Chronology of Events
[5] The chronology of events set out below is taken from Segura’s affidavit signed August 20, 2023, and from the June 12, 2023 Endorsement of Ryan Bell J., made in respect of the Dismissal Order.
[6] In December 2018, Segura contacted police about a break-in in her apartment. Officers with the OPS attended at her home, following which, a report was made to the Society concerning Segura’s young child. A Society worker met with Segura in early December 2018 following which, the Society determined that there were no protection concerns. The Society closed its file in February 2019.
[7] In early 2019, pursuant to the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, Segura requested the OPS to provide her with copies of its records of complaints made to the police initiated by or against Segura. The OPS requested payment of a fee for each occurrence report and declined to produce some of the records requested.
[8] Segura appealed the OPS decision to the IPC. Although the OPS twice revised its decision, Segura’s appeal proceeded to the IPC for adjudication. On October 27, 2021, the IPC adjudicator issued Order MO-4118, which, in part, upheld the OPS’ decision to refuse production, and also directed the OPS to release some information not produced without charging a fee.
[9] In her decision, the motions judge states that Segura acknowledges that as of March 2023, the OPS had complied with MO-4118.
[10] The JRA was brought on December 21, 2021. In it, Segura does not seek judicial review of Order MO 4118.
[11] The OPS submitted a requisition for the dismissal of this application as against the OPS pursuant to r. 2.1.01.
[12] Segura was provided with notice of the requisition and filed written submissions as well as “supporting documents” in response to the notice. The OPS declined to provide written submissions.
Disposition of the r. 2.1.01 Motion
[13] In her Endorsement, the motion judge reviewed and considered the case law applicable to motions to dismiss a proceeding under r. 2.1.01 (at paras. 9-10). She noted that the JRA does not identify a decision of the OPS for which Segura seeks judicial review.
[14] Citing Currie v. Halton Regional Police Services Board (2003), 2003 7815 (ON CA), 233 D.L.R. (4th) 657 (Ont. C.A.), at para. 14, the motion judge determined that the JRA was, on its face, frivolous, because it lacked a legal basis or merit and was not “reasonably purposeful”.
[15] In reaching the above conclusion, the motion judge noted that the jurisdiction of this court to hear an application for judicial review is found at s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”), which jurisdiction rests on the existence of the exercise of a statutory power of decision. At para. 12 of her Endorsement, Ryan Bell J. notes that “[i]n order to be subject to judicial review, a statutory power of decision ‘must be a specific power or right to make the very decision in issue’”, referencing Paine v. University of Toronto et al. (1981), 1981 1921 (ON CA), 34 O.R. (2d) 770 (C.A.), at p. 772, leave to appeal to S.C.C. refused, 35 O.R. (2d) 528.
[16] The motion judge concluded the JRA as against the OPS to be frivolous because the decision that Segura sought to challenge was made by the IPC, not by the OPS.
[17] The motion judge also considered that the relief identified in Segura’s written submissions on the r. 2.1.01 motion included whether the OPS erred by keeping outdated databases and record systems. The motion judge concluded that Segura was seeking judicial review of unspecified “policies and procedures”, or, in essence, an audit of the OPS’s policies and procedures, which does not fall within the purview of this court under the JRPA.
[18] For the reasons given, Ryan Bell J. dismissed the JRA as against the OPS.
Standard of Review of the Dismissal Order
[19] A decision made under r. 2.1 is discretionary and, as such, is entitled to deference. Discretionary decisions may be set aside where the court misdirects itself or comes to a decision that is so clearly wrong that it amounts to an injustice: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27; Khan v. Law Society of Ontario, 2020 ONCA 320, 446 D.L.R. (4th) 575, at para. 10, leave to appeal to S.C.C. refused, 39321 (January 28, 2021).
Analysis
[20] The heart of the motion judge’s findings is that, as pleaded, the relief sought as against the OPS lacks a legal basis or legal merit. On its face, the JRA refers to a decision made by the OPS, which was reviewed by the IPC. The motion judge observes that no reviewable OPS decision is identified in the JRA.
[21] I see no error in law or in fact in the reasons for the Dismissal Order, given by the motion judge. The motion judge properly directed herself on the law and, on the pleadings before her, her decision was neither clearly wrong, nor was there no, nor insufficient, weight given to relevant considerations.
[22] In addition, I conclude that the motion judge was correct in concluding that the relief apparently sought by Segura was not judicial review of a decision but, rather, a review or “audit” of the OPS’s policies and procedures. Such a review or audit is not within the purview of a judicial review application brought under the JRPA; as such, as to the relief sought as against the OPS, the motion judge properly exercised her discretion in concluding that the JRA had no merit and could be properly classified as “frivolous, vexatious or an abuse of process”.
Disposition of the Motion
[23] For all the above reasons, Segura’s motion to set aside the Dismissal Order is dismissed. As a result, the JRA as against the OPS has already been dismissed.
Balance of the JRA as against the Society and the CFSRB
[24] The JRA raises the following issues to be decided:
#1 Is the JRA brought out of time? If so, should an extension of time be granted?
#2 Are the decisions identified in the JRA subject to judicial review?
#3 What is the standard of review?
Issue #1: Is the JRA brought out of time? If so, should an extension of time be granted?
[25] Section 5(1) of the JRPA requires an application for judicial review to be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occurred. This is subject to s. 5(2), which gives the court authority to extend the time for making the application if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.
[26] The respondents take the position that the Application is statute-barred pursuant to s. 5 of the JRPA.
[27] The respondents also submit that Segura failed to perfect the JRA within the timelines prescribed by r. 68.04.
[28] Segura first attempted to file a Notice of Application for judicial review on November 3, 2021. It was rejected by the court. On December 21, 2021, Segura served and filed an amended Notice of Application. The Society’s decision referenced in the Application is dated March 16, 2021 (the “ICRP Letter”), and the decision of the CFSRB referenced in the Application is dated June 3, 2021 (the “CFSRB Decision”).
[29] In its factum, the CFSRB acknowledges that it was first served with the Notice of Application on November 3, 2021, five months following the CFSRB decision dated June 3, 2021. However, the application record and other materials, excluding a factum, were not served until February 17, 2023, or 15 months following service of the Notice of Application. The CFSRB submits that the delay is excessive.
[30] In its factum, the Society submits that Segura failed to perfect the JRA for over one year.
No Motion to Extend Timelines
[31] In her factum, Segura acknowledges that she had not met the prescribed timelines, but chose not to bring a motion to seek an order to extend the timelines: Applicant’s Factum, at para. 47.
[32] In her factum, Segura purports to offer explanations for her delay (at paras. 42-47). These include: disruptions, and court delays and backlogs caused by COVID-19; the closing of libraries and resource centres; the illness of Segura’s mother in Colombia, to where Segura travelled in October 2021, not returning to Canada until February 7, 2023; the respondents’ alleged “implicit consent to extend the time” for Segura to perfect the JRA – for which Segura offers no evidence; and the deadline of February 17, 2023, set by the Society for Segura to perfect the JRA.
[33] Segura’s factum does not constitute evidence.
[34] Evidence put forth by Segura that might be seen as addressing her delay in bringing and perfecting the JRA can be seen in Segura’s affidavit signed August 20, 2023, and filed in support of her motion to set aside the Dismissal Order. At paras. 7-8 of her affidavit, Segura asserts that between October 28, 2021, and July 20, 2023, she had to care for her ill mother, while also homeschooling her son, and that she lacked resources and “finally managed to perfect” the JRA in February 2023.
[35] In its factum, the Society states that the Society’s ICRP held a hearing on March 8, 2021, following a complaint made by Segura relating to events that took place between December 2018 and February 2019.
[36] The ICRP sent its decision to the Applicant on March 16, 2021. Thereafter, the Applicant filed a complaint with the CFSRB. On May 25, 2021, the Society responded in writing to the Applicant’s complaint and on June 3, 2021, the CFSRB released its written decision.
[37] Respecting the deadline set by the Society, Segura provided copies of an email exchange with counsel for the Society in January 2023 alerting Segura to the fact that:
(a) the decision she seeks to review was made by the CFSRB on June 3, 2021, and that she did not advise of her intention to seek judicial review of that decision until August 2, 2021;
(b) the JRA was not issued until December 21, 2021;
(c) more than one year had passed since the JRA was issued and Segura had not sought an extension of time under s. 5(2) of the JRPA to issue the JRA or the deadline under the Rules to perfect the JRA; and
(d) if the JRA was not perfected by February 17, 2023, the Society would move to dismiss it for delay but that even if the JRA were perfected by that date, the Society would still take the position that the JRA was statute-barred.
[38] Also included in Segura’s materials on the JRA is a list of 15 separate legal proceedings in which she has been involved between March 2011 and July 26, 2021. Except for one entry, the proceedings are unrelated to the matters before this court.
[39] It is apparent to this court that Segura’s extensive record of court proceedings demonstrates that she has been able to navigate multiple and varied legal proceedings before tribunals and courts in Ontario and Quebec, including motions to the Supreme Court of Canada. This evidence undermines Segura’s assertions that she was unable to bring, or perfect, the JRA within the prescribed timelines.
[40] In support of its position that an extension of time should not be granted, the Society put forth the affidavit of its Child Protection Worker (“CPW”), against whom Segura had levelled complaints. In the affidavit, the CPW states that she found Segura’s complaints against her to be “very hurtful”, “unfounded” and a “source of great personal stress for” her.
[41] I accept the law as taken from paras. 26-27 of the CFSRB’s factum, concerning the factors applicable when determining whether to dismiss an application for delay:
[26] Judicial review is an equitable and discretionary remedy that should be refused in the face of excessive delay. This Court has established that the following factors should be considered when determining whether to dismiss an application for delay:
(a) the length of the delay;
(b) whether there is a reasonable explanation for the delay; and
(c) whether the moving party has experienced prejudice as a result
of the delay.
[27] Prior to the amendments in the JRPA, this Court held that an applicant must
commence and perfect an application for judicial review in a timely manner, and that the failure to do so is an independent basis for a dismissal of the application. This Court has consistently held that a delay of six months or more in commencing an application and twelve or more months in perfecting it, is serious enough to warrant its dismissal, including cases where the applicant is self-represented. [Citations omitted.]
[42] I also accept the submissions made by the CFSRB, supported by the jurisprudence cited at para. 29 of its factum, that this court has dismissed applications for judicial review on the basis of delay that is similar to the delay in this case.
Analysis: Should Segura be granted an extension of time to bring and perfect the JRA?
[43] As noted at the outset, Segura failed to meet the timelines under the JRPA and the Rules. Also, she has not sought an extension of time to commence or perfect the JRA.
[44] The delays in bringing and perfecting the JRA are significant and range from no less than 12 months to as great as 20 months.
[45] Segura has not provided a reasonable explanation for her delay.
[46] In keeping with the jurisprudence in this court, a delay of over six months can be serious enough to warrant the dismissal of the JRA.
[47] In addition, the Society has led evidence, which I accept, that the Society has experienced prejudice as a result of the delay.
[48] For all those reasons, I conclude that the JRA should be dismissed for delay.
Issue #2: Are the decisions identified in the JRA subject to judicial review?
Merits of the JRA
[49] There are additional reasons that also support the dismissal of the JRA. Paragraph 3 of the JRA identifies two “decisions”: the ICRP Letter; and the CFSRB Decision. The ICRP Letter is not a “decision” and, therefore, is not the proper subject of judicial review; and, as explained below, I conclude that the JRA of the CFSRB Decision is without merit.
[50] In oral submissions, Segura took issue with the Society’s decision to “knock on her door” or give any weight to the report received from the OPS of a child protection concern. This third “decision” was not clearly identified in the JRA and, in any event, was the subject of the complaint brought by Segura and the final disposition of which is the CFSRB Decision, which was identified in the JRA. For those reasons, it is not addressed separately in these reasons.
[51] It also bears noting that the affidavit of the CPW explains why the Society was required to investigate and provides some details of the one meeting conducted by the CPW, following which the Society’s file was closed. This affidavit conflicts with Segura’s assertions, made at this hearing, and unsupported by evidence, that the Society or the CPW acted other than in accordance with their legal obligations.
The ICRP Letter
[52] The ICRP Letter responded to the complaint made by Segura, but it did not decide anything. For that reason, it cannot be the subject of judicial review. The record shows that the only “decision” made by the Society was to close its file. Segura does not seek to judicially review that decision.
[53] In her factum, Segura seeks orders quashing the CFSRB Decision and setting aside the “decision” of the Society (i.e. the ICRP Letter), together with a number of other orders that are principally directed at the policies and procedures followed by Society and the CFSRB. As observed by Ryan Bell J., an audit of the policies and procedure is outside the purview of judicial review under the JRPA.
[54] For the above reasons, I conclude that there is neither merit, nor a basis in law, to the JRA respecting the Society.
The CFSRB Decision
[55] The CFSRB Decision summarizes Segura’s complaint and the Society’s response to it and identifies the dispute to be whether the Society had addressed the concerns raised by Segura. On that basis, the CFSRB determined that the hearing could proceed in writing, as permitted under the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched. 1 (“CYFSA”).
[56] The Adjudicator considered the materials filed and determined that, although Segura may have been dissatisfied with the information provided by the ICRP and with the outcome of the complaint process, the ICRP directly addressed “general concerns about the Society” and the basis for the CPW’s involvement, as well as the Society’s interventions themselves. On that basis, Segura’s complaint was dismissed in its entirety.
[57] A decision of the CFSRB may be the subject of judicial review. Should this court choose to exercise its discretion to hear the JRA, the CFSRB submits that the standard of review that is applicable to the CFSRB Decision is reasonableness.
[58] Segura also acknowledges that there is “a presumption that the standard of review is reasonableness” but asserts that a correctness standard will apply to other questions such as constitutional questions and questions of law of central importance to the legal system as a whole: Applicant’s Factum, at para. 62.
Issue #3: What is the standard of review?
[59] I accept the CFSRB’s submissions that, in this case, there is no legal or factual basis to rebut the presumptive standard of review of reasonableness.
[60] The Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 15, explains what a court must consider when conducting a reasonableness review:
[15] In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place.
[61] Vavilov also directs the reviewing court to “respect administrative decision makers and their specialized expertise”. The reviewing court “should not ask how they themselves would have resolved an issue and should focus on whether the applicant has demonstrated that the decision is unreasonable … [a] reasonableness review finds its starting point in judicial restraint and respects the distinct role of administrative decision makers”: at para. 75.
[62] Segura takes issue with the CFSRB’s refusal to make a determination as to the “clinical wisdom or validity of the Society’s decision in any given situation.” The CFSRB explains why it did not make that determination.
[63] At paras. 2-3 of the CFSRB Decision, the CFSRB reproduced the sections of the CYFSA that set out the orders that it could make and, at para. 4, explained that the determination sought by Segura was not within the scope of its authority under the CYFSA. That interpretation of the limits to its authority was confirmed by this court in Chapman v. York Region Children’s Aid Society, 2021 ONSC 2620 (Div. Ct.), at paras. 32-33.
[64] I find that the CFSRB acted in accordance with its mandate and authority under the CYFSA; there was nothing unreasonable in the CFSRB’s determination of (the limits to) its jurisdiction.
[65] The paragraphs in Segura’s factum that address procedural fairness focus mainly on the ICRP Letter and what Segura perceives to be the Society’s “concealed procedures” that leave room for improper exercise of authority. These submissions are followed by Segura’s submissions concerning the CFSRB Decision.
[66] With respect to assertions of procedural unfairness, a decision is either procedurally fair or it is not.
[67] Segura submits that the CFSRB “assigned to her complaint a limited standard of review.” She also submits that the dual statutory process for bringing matters to the CFSRB is confusing and unfair. Segura’s submissions on this issue call for “a review of the application of the CFSRB’s statutory mandate and remedial discretion as well as the choices of procedure” and that the CFSRB should have sent her complaint back to the Society.
[68] However, whether the complaint is made to the CFSRB under ss. 119 or 120 of the CYFSA, the jurisdiction of the CFSRB is limited to a review of procedural issues or whether there was procedural fairness in responding to a complaint: see A.H. v. Kawartha-Haliburton Children’s Aid Society, 2014 CFSRB 62.
[69] The parties agree that the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, applies. Baker identifies the factors relevant to consider in determining what degree of procedural fairness is required.
[70] The following Baker factors are taken from para. 46 of the CFSRB’s factum:
(1) the nature of the decision being made and the process followed in making it;
(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
(3) the importance of the decision to the individual or the individuals affected;
(4) the legitimate expectations of the person challenging the decision; and
(5) the choices of procedure made by the agency itself.
[71] Factors (1), (2) and (5) were addressed above; Segura has failed to establish that there was any unfairness in how the CFSRB exercised its authority. The choice made by the CFSRB to proceed with the hearing in writing was explained in the CFSRB Decision: the issue before it was narrow, fact-based, and did not require additional evidence to decide. There was nothing procedurally unfair about proceeding in that manner: Segura’s complaint and her written submissions were considered. While Segura may not have been satisfied with the CFSRB Decision, the process available to address her complaint is permitted by the CYFSA.
[72] As for the third factor, consideration must be given to the fact that Segura does not seek a review or challenge to the Society’s decision to close its file without commencing any protection proceedings. Rather, she seeks a review and “remediation” of the statute, and policies and procedures, under which the Society and the CFSRB operate.
[73] Similarly, when considering Segura’s “legitimate expectations”, the nature of the CFSRB Decision must be viewed in the context of the issues to be determined by CFRSB: the facts here are a far cry to those in A.H. v. Kawartha-Haliburton Children’s Aid Society, referenced by Segura. In this case, as mandated by law, the Society responded to a report made by the police of a possible child protection concern. It investigated and closed its file promptly – a decision that is not challenged by Segura.
[74] For the reasons set out, I conclude that Segura has failed to establish that she was denied procedural fairness by the CFSRB.
Disposition
[75] The JRA is dismissed.
[76] As agreed among the parties, no costs are awarded.
Sheard J.
I agree _______________________________
J.R. McCarthy J.
I agree _______________________________
Schabas J.
Released: September 26, 2023
CITATION: Segura Mosquera v. Child and Family Services Review Board, 2023 ONSC 5142
DIVISIONAL COURT FILE NO.: DC-21-2685
DATE: 20230926
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J.R. McCarthy, Sheard and Schabas JJ.
BETWEEN:
Gladys M. Segura Mosquera
Applicant
– and –
Children’s Aid Society of Ottawa (CASOTT)
Child and Family Services Review Board (CFSRB)
Ottawa Police Services Board
Respondents
REASONS FOR JUDGMENT
Sheard J.
Released: September 26, 2023