CITATION: Finn v. Highland Shores Children’s Aid Society, 2023 ONSC 5495

DIVISONAL COURT FILE NO.: DC-22-2710

DATE: 2023/10/12

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

ELLIES R.S.J., SACHS AND GIBSON JJ.

BETWEEN:

PAUL FINN

Applicant

– and –

HIGHLAND SHORES CHILDREN’S AID SOCIETY

Respondent

Robert J. Reynolds, Counsel for the Applicant

Candice Pilgrim, Counsel for the Respondent

HEARD: At Ottawa on June 1, 2023, via videoconference

REASONS FOR DECISION

gibson j.:

OVERVIEW

[1] The Applicant Father Paul Finn (“Finn”), a Roman Catholic priest, seeks judicial review of the Respondent Highland Shores Children’s Aid Society (the “CAS”) decision dated April 20, 2022, reaffirming its reasons dated September 20, 2018, “coding” the Applicant as a risk to children. The Applicant asks this court to quash the decision. He submits the underlying decision is unreasonable and that he was denied procedural fairness.

[2] The Respondent asks that the application be dismissed.

[3] For the following reasons, I would grant the application for judicial review and set aside the decision because there was a denial of procedural fairness.

BACKGROUND

The Applicant Met Alone with Female Students

[4] This case concerns a Roman Catholic priest, the Applicant, Father Paul Finn, who is alleged to have taken confessions from Grade 7/8 students from St. Mary’s School in Read, Ontario in 2018, meeting alone with female students and speaking to them about sexualized topics including pornography, nudity, masturbation, and premarital sex. The Applicant kept the female students in confession longer than male students, sometimes up to 2 hours. Some of the female students he met with raised concerns to teachers that they felt uncomfortable, awkward, unsafe, disillusioned with their religion, and not wanting to go to school. Some of the girls disclosed that the Applicant hugged them or held their hands; one disclosed he touched her knee; another disclosed that he styled or groomed her hair.

[5] The Applicant was 58 years old as of June 2018. He has been an ordained priest of the Roman Catholic Church serving within the Archdiocese of Kingston since 2013. He had functioned as a parish priest assigned to a three-point charge in Marysville, Read and Deseronto, and carried out all of the duties customary to the role - conducting weekday and Sunday Masses, conducting Masses at Catholic schools in the district, hearing confessions at the churches and in the schools, performing weddings and funerals, and visiting sick parishioners.

Investigation

[6] After a parent intervened, a teacher collected statements from the girls, and the school principal reported the allegations to the Respondent CAS, pursuant to his duty under s. 125 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “CYFSA”), and to the Applicant’s church employer, the Roman Catholic Archdiocese of Kingston.

[7] The CYFSA empowers the CAS to conduct investigations and make findings as to whether an individual represents a risk of physical, sexual or emotional harm to children. Such determinations are referred to as “verifying” the “coding” of the individual in question as representing a particular risk as defined in the Ontario Child Welfare Eligibility Spectrum (“the Spectrum”), set out in the Ontario Child Protection Standards, 2016.

[8] During the CAS investigation, Ted Brown, a CAS Immediate Response Worker with the Respondent, supervised by a more senior worker, Catherine Whitley, a Child Protection Supervisor, met with the Applicant, but the Applicant stated he could not disclose the nature of the discussions due to his confessional privilege. Both workers have degrees in the social sciences and have taken courses in forensic interviewing. Neither is a lawyer.

[9] Over the period from June to late August 2018, Mr. Brown interviewed several students. Several, but not all, of the female students described the discussions with the Applicant during confession as outlined above.

[10] Mr. Brown met with the Applicant on September 17, 2018. The Applicant stated repeatedly that the privilege attaching to the confessional forbade him from saying anything that was discussed in confession, and that, consequently, while he did not admit to the allegations, he couldn’t deny them either because to do so would require him to breach confessional privilege.

[11] Immediately after that phase of the meeting, Mr. Brown announced that the decision had been made to “code” the Applicant as posing a risk to harm under two provisions of the Spectrum- 1.3.J and 3.B.1 – the former designating him as a risk of sexual harm to children; the latter as a risk of emotional harm.

[12] The next day, September 18, 2018, Mr. Brown and Ms. Whitley conducted a Verification Conference in which they confirmed the decision pronounced the day before. On September 20, 2018, the CAS issued a formal letter setting out its decision to “code” the Applicant as a risk of harm to children, directing it to the Applicant, the Archdiocese and the school.

[13] Only on September 21, 2018, four days after the coding decision had been made, did Mr. Brown attend at the school to examine the confession room and its surroundings.

Post-Investigation Decision

[14] On December 29, 2018, the Applicant requested a review of the decision. He reiterated what he said were the limits of confessional privilege placed on anything alleged to have happened in the confessional. The Respondent denied the request and affirmed its decision on February 1, 2019.

[15] The Applicant then invoked a review of the decision by an Internal Complaints Review Panel (“ICRP”) of the CAS, and pursued disclosure of the Respondent’s file. Progress on the matter was delayed partly due to the COVID-19 pandemic. The Respondent eventually produced the record of its investigation, its decision, and the reasoning for it, with redactions concealing the names of the complainants. Disclosure was completed by a Disclosure Meeting held on October 28, 2021.

[16] On March 17, 2022, the Applicant requested that the Respondent convene the ICRP review. On April 20, 2022, the CAS responded that the ICRP process was unlikely to yield a different result, waived further steps, and stipulated that it would not contend, in any judicial review application brought by the Applicant, that he had failed to exhaust the ICRP avenue of redress.

[17] On learning of the CAS investigation, the Archdiocese removed the Applicant from his duties as a parish priest, including any work in schools, performing masses, or contact with children. Since that time, the Applicant has lived in the residence at the Cathedral in Kingston. He is paid but does not function as a parish priest. He indicates that he does not expect that the Archdiocese will permit him to resume these duties so long as the CAS decision “coding” him as a risk of sexual and emotional harm to children stands.

[18] This Application for Judicial Review was commenced on May 20, 2022.

ISSUES:

[19] In this matter, the Court must consider the following issues:

Was the Applicant denied procedural fairness? and,
Was the CAS Decision reasonable?

COURT’S JURISDICTION

[20] The Divisional Court has jurisdiction pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

STANDARD OF REVIEW

Duty of Procedural Fairness

[21] There is no standard of review for issues of procedural fairness on judicial review. The reviewing court must evaluate whether the decision-maker adhered to the duty of procedural fairness by (a) assessing the specific circumstances giving rise to the allegation and (b) determining what procedures and safeguards were required to comply with the duty.

[22] As the Court observed in Chapman v. York Region Children’s Aid Society, 2021 ONSC 2620 (Div. Ct.) at para. 40:

The objective of the common law duty of procedural fairness is to provide participatory rights appropriate to the administrative decision being made (Baker v. Canada (Minister of Citizenship & Immigration), 1999 SCC 699, at para. 22.) The content of the duty is contextual, as the content of the right of participation varies with such factors as the nature of the decision, the statutory scheme, the importance of the decision to an individual, legitimate expectations about procedure, and the choices of procedure made by the decision-maker (Baker, at paras. 21-28.)

Whether the verification decision was unreasonable

[23] As the parties acknowledge, the standard of review of the decision is reasonableness. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 15, the Supreme Court of Canada made it clear that, 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. A reasoned decision is one that is “transparent, intelligible and justified” and is “justified in relation to the relevant factual and legal constraints that bear on the decision” (at para. 87).

POSITIONS OF THE PARTIES

Issue #1: Was the Applicant denied procedural fairness?

Applicant’s Position

[24] The Applicant contends that the way the Respondent carried out its investigation was procedurally unfair. He submits that the duty of fairness in this case required that the Respondent afford the Applicant the right to an oral hearing where complainants could testify and he would have a fair opportunity to cross-examine them. This is so, the Applicant argues, because the impact of the decision and the centrality of credibility to the decision strongly point to this necessity. The Applicant submits there were no legislative constraints on the CAS limiting its ability to proceed this way. The duty of procedural fairness can be read in to extend the process to include an oral hearing if the facts of the case demand. Prior case law finding that decisions on coding do not require an oral hearing does not “stand in the way” of a determination that the duty requires this right to an oral hearing, he asserts.

[25] In the alternative, the Applicant contends that the procedure failed to adhere to the mandatory framework set out in the Ontario Child Protection Standards. The Applicant submits the framework required that a decision to verify a coding is to be made by the investigator and their supervisor at a verification conference after all relevant information has been assembled. Further, the Applicant submits the decision was made without the Respondent having examined the scene of the alleged events, within little time after interviewing the Applicant, and without a verification conference. This framework was the only procedural safeguard for the Applicant, and he had a reasonable expectation that it would be followed.

Respondent’s Position

[26] The Respondent submits it met the duty of fairness required. The investigative procedure set out by the Regulation does not set out notice provisions or hearing provisions. The decision did not require an assessment of competing credibility and the CAS was entitled to draw inferences from admitted facts. The Respondent submits that its choice of procedure is entitled to deference, and maintains that it complied with the statute and relevant policy in the investigation. Investigative techniques never include cross-examination of children, it asserts, and the investigative process is purely administrative. An oral hearing, it contends, was not required to satisfy the demands of natural justice.

Issue #2: Was the CAS Decision reasonable?

Applicant’s Position

[27] The Applicant submits that the “reasoning path” used by the investigator included reasoning that was illogical and/or irrational. The investigator relied on the Applicant’s failure to deny the allegations as “supporting their credibility” despite the Applicant’s repeated explanation that he could not admit or deny allegations because of privilege issues. It was unreasonable to rely on the “failure to deny” the allegations as a confession of guilt. Moreover, the Applicant submits, the investigators accepted allegations without taking steps to test them.

[28] The Applicant further submits it was unreasonable for the investigator to rely on the degree of similarity he perceived to exist between the allegations. The Applicant asserts that there may have been unconscious collusion between the allegations/complainants, and it was untenable for the investigator to rely on the similarities to boost credibility.

[29] The Applicant claims that the Respondent failed to properly consider the legal elements that needed to be made out to make the finding. The Applicant submits the following: the investigator failed to carry out the assessment of risk in respect of each child (vs. a generalized finding); he did not consider, as the language required, whether the female students were “’likely’ to be ‘sexually harmed’”; there was no indication that the investigator was alive to whether it had been established that the Applicant was a “care giver” as required; and there is no indication he considered whether the alleged discussions about sexual topics were initiated by the Applicant constituted “sexual intent”. The Applicant also contends that the Respondent failed to consider whether the evidence established the nature and degree of emotional harm as required by the statutory scheme.

Respondent’s Position

[30] The Respondent submits there was no ability for the investigators or the CAS to find the Applicant “guilty” of anything given a criminal standard did not apply. Based on the totality of the investigation, the Society needed to determine whether it was more probable than not that the child protection concerns occurred or existed. Nothing prohibits the CAS from making a verification decision because the subject of the investigation refused to respond. There was no statement that his refusal to respond bolstered credibility of the student complaints. The determination was open to the Society to make. Further, the CAS contends, privilege should not shield a priest from allegations, and the Applicant is mistaken in invoking penitential privilege as this privilege belongs to the person making the confession (in this case, the children), not to the priest, analogous to the context in solicitor-client privilege where the privilege belongs to the client, not to the lawyer.

[31] The CAS maintains that there is no evidence that the children interviewed were not credible. The investigator was not required to probe the issue of unconscious or conscious collusion.

[32] The CAS asserts that the verification decision was justified on the facts and the law. A risk analysis and verification for each individual child is not required. This was an institutional investigation and not a family-based investigation. In an institutional investigation, it contends, a determination about whether one specific child is in need of protection does not need to be made. The CAS submits that in determining whether activities are threatening or inappropriate, the analysis is to be conducted based on whether the child felt that way. An investigator is tasked with determining sexual harm on a balance of probabilities, and not to the criminal standard of “sexual intent”. It was open to the CAS, it maintains, based on its investigation, to find that the Applicant posed a risk of sexual harm to children.

[33] The Respondent submits the Applicant met the definition of a caregiver as defined in the CPSO, and that the risk of emotional harm was established. Child welfare professionals have a particularized knowledge regarding likely harms, it asserts, and these findings should be afforded deference in assessing a verification decision. The risk of sexual harm inherently brings the risk of emotional harm.

[34] The Respondent further submits that, in the event this Court finds that the Applicant was denied procedural fairness, it wishes to note that the decision was extensively reviewed following the verification decision.

[35] In the event this Court finds the written reasons were not sufficient, it says, they are still reasonable. The formal reasons should be read in light of the record and with due sensitivity to the administrative setting.

[36] The Respondent’s counsel suggested in her oral submissions that, if the Court decides to set aside the decision and order a new investigation, that it should be done by a different CAS, perhaps Kingston, because of concerns about impartiality.

ANALYSIS

Issue #1: Was the manner in which the Respondent carried out its investigation of the allegations and the making of its decision to verify the “coding” of the Applicant as a risk of sexual or emotional harm procedurally unfair?

[37] The common law duty to be fair applies to virtually every public authority making an administrative decision which affects the rights, privileges or interests of an individual. This includes CAS decisions to verify the “coding” of an individual as a risk of harm to children: Chapman, at paras. 39-46.

[38] The content of the duty of procedural fairness is flexible and varies from case to case, depending on an appreciation of the context of the particular statute and the right affected, keeping in mind that the purpose of the duty of procedural fairness is to ensure that administrative decisions are made through a process in which the individual affected has the opportunity to present his case fully and fairly, and have decisions affecting his rights, interests or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context: Baker, at para. 22.

[39] Criteria which can be relevant to determining the content of the common law duty of procedural fairness in a given set of circumstances include (Baker, at paras. 20-32):

a. The nature of the decision being made, and the process followed in making it. The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determination that must be made resemble judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required. The nature of the issue to be determined will carry more weight than the formal status of the deciding body (Baker, at para. 25);

b. The nature of the statutory scheme and the terms of the statute. Greater procedural protections will be required when no appeal procedure is provided;

c. The importance of the decision to the individuals affected. The more important the decision is to the lives of those affected and the greater its impact on those persons, the more stringent the procedural protections that will be mandated. In particular, a high standard of justice is required when the right to continue in one’s profession or employment is at stake (Ontario (Liquor Control Board) v. Vin de Garde Wine Club, 2013 ONSC 5854 (Div. Ct.), at para. 22; Jajo v. Ontario (Transportation), 2021 ONSC 5227 (Div. Ct.), at para. 54; and

d. The legitimate expectations of the person challenging the decision. It will generally be unfair for an administrative decision-maker to act in contravention of representations as to procedure set out in its own rules and policies (Baker, at para. 26; Ford v. University of Ottawa, 2022 ONSC 6828 (Div. Ct.), at para. 54-56, 69).

[40] There can be no question that in the present case the outcome is of great importance to the Applicant as the individual affected. The stigma of being found to be a person posing a risk of sexual or emotional harm to children, and its immediate effect on his professional reputation and employment, is obviously of great import to a priest. It goes to the heart of his vocation and professional identity, his reputation in the community, and his employment prospects.

[41] The Applicant submits that in the circumstances of this case, the impact of the decision points strongly to the necessity of an oral hearing and cross-examination. I do not agree. This Court has already considered this issue in a similar context (Chapman, at paras. 44 and 46.):

The regulatory scheme here includes the CYFSA, the Standards and the Eligibility Spectrum. The latter two set out minimum standards for child protection investigations, including procedures designed to ensure that CAS workers apply similar standards to make consistent and accurate decisions. The investigation must be thorough and balanced and in compliance with the regulatory scheme, given the lack of other procedural protections, such as an oral hearing with the right to cross-examine or the right to a full appeal.
We accept that the role of the CAS is investigative, not judicial, so there is no requirement for a formal oral hearing. However, given the serious impact of the finding on an individual, and the lack of an appeal from such a determination, procedural fairness in the circumstances requires adequate notice, disclosure, and an opportunity to respond prior to a decision.

[42] I therefore do not accept the Applicant’s primary submission regarding procedural fairness. But while I do not go so far as to declare that the common law duty of fairness requires that the Applicant be afforded the right of an oral hearing and cross-examination in this case, I accept the alternative submission and agree that the CAS’s decision-making process fell short of other elements of the duty of fairness applicable in this case. The CAS failed to adhere to fundamental procedural requirements imposed by the legislative scheme.

[43] The Ontario Child Protection Standards set out what it describes, and this Court has found, to be a “mandatory framework” governing the procedure to be followed in order for a finding of verified risk of physical, sexual or emotional harm to be made. The Standards spell out mandatory requirements including the following:

(1) It mandates the scope of testimonial evidence to be acquired, including the evidence of the alleged victims, other witnesses, and the alleged perpetrator.

(2) It mandates that the physical layout of the setting be examined.

(3) It mandates that the investigation be concluded only when “all information has been gathered”, and “all reasonable efforts have been made to collect evidence and continuing the investigation would yield no new information”.

(4) It mandates that the decision to verify coding is to be made in a “thorough, structured, guided and collaborative process”, “within the context of a full case review and analysis of all relevant information obtained through the referral and during the investigation”. It mandates that the decision to conclude an investigation and reach a decision to verify the risk is made in consultation with a supervisor, and explains that the verification decision is made in a conference involving, at minimum, the child protection worker and supervisor” at which “all relevant information obtained throughout the investigation is reviewed”.

[44] The central thread through these requirements is that a decision whether to verify coding is only to be made by the investigating worker and his or her supervisor at a verification conference held after all relevant information has been assembled. In effect, the Standards seek to ensure some degree of procedural fairness in a situation where the CAS is both investigator and adjudicator by imposing a requirement that the decision not be made until there is some assurance that the CAS has before it all of the relevant information required to make an informed decision and by imposing a requirement that the decision must then, with all that information in hand, be made in conference with a supervisor in a collaborative and deliberated way.

[45] The manner in which the Respondent conducted the investigation and decision to verify coding breached the mandatory requirements set out in the Standards in the following ways. Mr. Brown had, by September 17, 2018, interviewed the alleged victims and other witnesses, but had not examined the room at the school and its environment. On September 17, he met with the Applicant to interview him. Mr. Brown went to the meeting with the mindset that he had decided to verify the Applicant’s coding as a risk of sexual and emotional harm unless Finn said something to convince him otherwise.

[46] Immediately after he had heard from the Applicant, with no further discussion or consideration, Mr. Brown made the decision to verify Finn’s coding, and announced that decision to Finn and the others present. In other words, he announced the decision to verify prior to having the conference with his supervisor mandated by the Standards.

[47] Mr. Brown and his supervisor, Ms. Whitley, could not explain the purpose of the “verification conference”, they held on September 18 other than to say that it was to “finalize” the decision. Mr. Brown essentially admitted that he should not have announced his final decision in the September 17 meeting.

[48] This process constituted a comprehensive departure from the central tenet of the CAS’s duty of fairness – the decision should not have been made when the CAS had not even examined the scene of the alleged events, should not have been made seconds after interviewing the Applicant, and should not have been made before the collaborative and thorough review entailed by a verification conference between the investigating worker and his supervisor. Meaningful compliance by the CAS with that central tenet was important because it is the only meaningful procedural safeguard that the Applicant had, and he had the right to expect that it would be honoured.

[49] The Respondent submits that the statutory, institutional, and social context of child welfare is that the CAS’s primary duty and obligation during investigations is to children: child safety, well-being, and best interests. That is not in dispute. But it further submits that child protection workers, because they are trained in investigative techniques, and the investigative process is purely administrative, are owed deference in determining the appropriate procedures. This is not a sustainable proposition. It is analogous to the proposition that police officers are owed deference in their decisions in conducting a search, or making an arrest, without close scrutiny by a court as to whether the relevant legal standards were complied with.

[50] It is also troubling that the CAS did not make the ICRP process available. This is particularly the case since the Respondent argues that any procedural defects that led to the verification decision were “cured” by what occurred afterwards, which it says amounted to an “appeal or review, akin to the Internal Complaint and Review Panel process”. I do not accept this submission since there was no ICRP process. It is problematic for an administrative decision-maker to circumvent an internal review or appeal process that is supposed to be available by saying “it is unlikely to yield a different result” and then telling the person with the right to the process to proceed to judicial review and that the decision-maker will not argue that the affected individual failed to exhaust his remedies. This approach short-circuits the intended safeguard in the process provided.

[51] It is a well-settled principle of judicial review that a decision that was arrived at unfairly cannot be upheld, regardless of the apparent merits of the decision. This principle was explained by the Supreme Court of Canada in Cardinal v. Kent Institution, 1985 23 (SCC), [1985] 2 S.C.R. 643 (S.C.C.), in which Le Dain J. wrote for the Court, at p. 661:

[T]he denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.

[52] Assessed on all the facts in this case, it is apparent that the process followed by the CAS in making the impugned decision was procedurally unfair.

Issue #2: Was the Respondent’s decision to verify the “coding” of the Applicant as a risk of sexual or emotional harm unreasonable both in terms of the reasoning path taken and the result?

[53] Given the result concerning the first issue, it is unnecessary to consider the second as the decision at issue must be set aside.

Remedy

[54] When the Court finds that there has been a breach of the duty of fairness, the default remedy is the quashing of the decision. The Court will exercise its discretion to let a decision stand only in exceptional circumstances, where the flaws in the decision are trivial, inconsequential or technical: Canadian College of Business & Computers Inc. v. Superintendant, Under the Private Career Colleges Act, 2010 ONCA 856, at paras. 60, 67; Vavilov, at para. 96. This is not the case in the present matter.

[55] This decision must be set aside, given that the investigation was flawed, and the procedure was unfair to the Applicant.

CONCLUSION

[56] The application for judicial review is granted and the decision of the CAS to verify the “coding” of the Applicant as a risk of harm to children, as set out in the Respondent’s decision letters of September 20, 2018 and February 1, 2019, is set aside.

[57] The CAS is ordered to cause a fresh investigation to be conducted. As indicated by counsel for the CAS in her submissions, it would be best if the conduct of the investigation was referred to another CAS. If there are difficulties with this referral, the court may be contacted in writing for further directions.

COSTS

[58] At the hearing of the application, counsel made oral submissions as to what might be an appropriate order for costs. Respondent’s counsel submitted that an appropriate order would be in the range of $10,000.00 to $15,000.00. It was agreed that the Applicant would have five days in which to file submissions and a Costs Outline. The Applicant has done so, requesting partial indemnity costs in the amount of $21,584.

[59] The Respondent shall pay costs to the Applicant fixed at $15,000 all-inclusive.

Gibson J.

I agree _______________________________

Ellies R.S.J.

I agree _______________________________

Sachs J.

Released: October 12, 2023