CITATION: Kids Kingdom Daycare Inc. v. Ontario (Min. of Education), 2024 ONSC 487
DIVISONAL COURT FILE NO.: DC-23-2778
DATE: 2024/01/23
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ELLIES R.S.J., J.A. RAMSAY AND LEIPER JJ.
BETWEEN:
KIDS KINGDOM DAYCARE INC.
Applicant
– and –
HIS MAJESTY THE KING IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF EDUCATION
Respondent
Andrew Lister and Nathan Clarke, Counsel for the Applicant
Matthew Chung and Ella Leishman, Counsel for the Respondent
HEARD: At Ottawa on November 14, 2023, via videoconference
CORRECTED
REASONS FOR DECISION
Corrections are listed on page 15
ELLIES R.S.J.:
OVERVIEW
[1] Kids Kingdom Daycare Inc. ("Kids Kingdom") operates a large commercial child care centre in Ottawa. Under the Child Care and Early Years Act, 2014, S.O. 2014, c. 11, Sched. 1 ("the CCEYA" or "the Act"), child care centres must employ a "supervisor", who must be approved by a "director" appointed under the Act.
[2] On December 9, 2022, a director, Adrienne McCallan ("the Director"), revoked the approval of Kids Kingdom's supervisor, Meghan Burgess, following an inspection undertaken at Kids Kingdom on that date.
[3] In February 2023, Kids Kingdom applied to the Director to have Ms. Burgess approved again as a supervisor. The Director refused to do so. In this application, Kids Kingdom applies for judicial review of the Director's decision.
[4] I would allow the application and remit the matter to a different director for a fresh decision. As I will explain, the Director's decision was procedurally unfair to Kids Kingdom because, although the Director purported to rely on the results of the December inspection in her February decision not to approve Ms. Burgess, her reasons demonstrate that she based her decision on concerns not disclosed to Kids Kingdom, thereby depriving Kids Kingdom of the right to know the case it had to meet.
LEGAL FRAMEWORK
[5] The CCEYA establishes a framework to regulate the provision of child care in Ontario by imposing, among other things, a licensing system. Under s. 6(4) of O. Reg. 137/15 made under the Act ("the General Regulation"), every licensee of a child care centre must employ a supervisor, who is required to "plan and direct the program of the child care centre, be in charge of the children, oversee the staff and … be responsible to the licensee".
[6] Pursuant to s. 66 of the CCEYA, the Minister of Education must appoint at least one director, whose powers and duties under the Act include the approval of supervisors. Under s. 53 of the General Regulation, a person may qualify as a supervisor either by education and experience or by demonstrating capability. In either case, the person must be approved by a director. The section reads:
A supervisor shall be a person who,
(a) is a member in good standing of the College of Early Childhood Educators, has at least two years of experience providing licensed child care and is approved by a director; or
(b) in the opinion of a director, is capable of planning and directing the program of a child care centre, being in charge of children and overseeing staff.
[7] Under s. 46 of the CCEYA, a director making a decision under the Act may consider any person’s current or past failures to comply with the Act or the regulations that the director considers relevant.
[8] Certain sections of the General Regulation impose obligations on those operating a child care centre and other sections prohibit certain practices. Among the latter is s. 48, which prohibits acts such as confining a child in a stroller for disciplinary purposes or in lieu of supervision and the use of language that would humiliate, shame, or frighten a child, among other things.
[9] By way of enforcement, the CCEYA provides for the appointment of "program advisers", whose powers and duties are prescribed by regulation, and for the inspection of child care centres by inspectors appointed under the Act, of whom the director is one: CCEYA, ss. 28(2) and 68. The CCEYA provides that a director or inspector may make orders compelling compliance with the Act ("compliance orders"), orders stopping the operation of a child care centre ("protection orders"), and orders imposing "administrative penalties" of as much as $100,000 for non-compliance with the Act: CCEYA, ss. 36, 37, and 39.
[10] Finally, the CCEYA creates a list of offences punishable by fines of as much as $250,000, which list includes the failure to comply with a compliance or protection order.
FACTUAL BACKGROUND
[11] Ms. Burgess is a member in good standing of the College of Early Childhood Educators. She has approximately 14 years of experience providing licensed child care. She worked for Kids Kingdom from September 2014 until the Director revoked her approval in December 2022.
[12] Between January 2022 and August 2022, the Ministry of Education's Child Care Quality Assurance and Licensing Branch received five complaints about Kids Kingdom. These complaints led to four inspections of the daycare by program advisers during that period of time.[^1]
[13] On August 18, 2022, following an inspection conducted on August 10, 2022, the Director and two program advisers met virtually with Ms. Burgess and members of her staff. Following the August 18 meeting, the Director wrote to Frank D’Amato, the owner of Kids Kingdom, and to Ms. Burgess. In a letter dated August 19, 2022, the Director summarized "the key points of discussion regarding the number of licensed complaints received by the Ministry in the short period of your licensing history" and confirmed that, during the meeting, attendees on behalf of Kids Kingdom had provided information about the steps taken to date on how they had addressed the complaints and how they planned to achieve and maintain compliance with the CCEYA and its regulations.
[14] In response to an email from Mr. D'Amato sent after receiving the Director's August 19 letter, the Director wrote by email on August 26, 2022:
The purpose of the meeting was to have an opportunity for us to share our reasoning for holding a Directors’ Meeting and where our concerns were coming from regarding the number of licensed complaints received since January 2022. The ministry is required to follow up on each licensed complaint … that is submitted to the Ministry, regardless of if [sic] they are valid or not. I did hear your concerns around having these complaints kept on your licensing history after ministry follow up has been completed and no non-compliances were identified. I will ensure that your concerns are brought to the Ministry’s attention and keep you updated on their response.
Your suggestion of revising your parent handbook, specifically your policies and procedures, to be more specific around expectations for families is a great step in improving communication and hopefully reduce [sic] the number of complaints received. Going through this parent handbook with families during the initial visit will provide families with a better understanding of your centre.
[15] The final inspection of 2022 took place on December 9, 2022, in response to a complaint received on December 2, 2022. That same day, the Director wrote to Kids Kingdom, advising that she was revoking Ms. Burgess’ approval as supervisor. She wrote:
I am writing to advise you that the approval has been revoked because the Act provides for Director discretion regarding approval of supervisors. Based on the information discovered by the Ministry of Education’s Program Advisors [sic] at a licensed complaint follow-up by conducting a monitoring inspection December 9, 2022, it has been determined that the individual has not been fulfilling the role of Supervisor as required by the Act.
[16] On December 13, 2022, in response to an email from counsel for Kids Kingdom, the Director provided her reasons for revocation. She cited two reasons. The first was an observation by program advisers on December 9 of a child who was confined to a stroller and information provided to the inspector that this was a “recurring practice”. The second was an admission by “an educator” that she had raised her voice to children. As noted above, both of these are prohibited practices under the General Regulations. The Director wrote that “[b]ased on these incidents” she was of the view that Ms. Burgess was not suitable to act as a supervisor.
[17] In response to another email from Kids Kingdom’s counsel, the Director wrote on December 15, 2022, that Mr. D’Amato was free to apply for approval of a new supervisor and that he might choose to submit a new request for Ms. Burgess, but that “her past conduct will come into play when reviewing the application and can either be approved or denied.”
[18] The observations made by the program advisers on December 9, 2022, led to a further inspection by an inspector, Randy Korn, on December 21, 2022, about which I will have more to say shortly.
[19] In early February 2023, Kids Kingdom submitted an application to have Ms. Burgess approved again as a supervisor. On February 14, 2023, the Director wrote to Kids Kingdom to advise it that Ms. Burgess had not been approved because “based on the information discovered by the Ministry of Education’s Program Advisors [sic] at a licensed complaint follow-up monitoring inspection on December 9, 2022, it was determined that the individual had not been fulfilling the role of Supervisor as required by the Act, therefore, this individual is denied from acting as a supervisor at this centre."
[20] The Director’s letter closed with an invitation to contact her if any clarification was required, which invitation was accepted by counsel for Kids Kingdom. On February 22, 2023, the Director wrote to counsel, setting out her reasons for refusing to approve Ms. Burgess. In her letter, the Director wrote that the Ministry had revoked Ms. Burgess’ approval on December 15, 2022, for three reasons, which she expressed as follows:
It was observed on more than one occasion, that when the Ministry would arrive on-site to conduct a licensing activity, Ms. Burgess was most often not onsite. The staff also confirmed this and that they would rely on the designates for any questions or support. Because the designate was required to fulfill the role of supervisor, it became questionable to the Ministry that ratios and qualified staff were always respected.
Since January 2022, there have been 8 complaints received for this licensee, the most recent received February 8, 2023. The theme to most of the complaints stem from how the supervisor has handled situations with parents and staff.
On December 19th, 2022, Ms. Burgess was cited for allowing a prohibited practice. A referral was made to our Regulatory Compliance Unit as well as to the College of Early Childhood Educators.
[21] I interpret the Director’s reference to the prohibited practice in the third paragraph to be a reference to the stroller incident and the reference to the referral to be the reason Mr. Korn inspected the daycare on December 21, 2022.
[22] In her February 22, 2023, letter, the Director also wrote:
The Ministry took steps to support Ms. Burgess in reducing her number of non-compliances and licensed complaints by holding a Director's meeting on August 18th, 2022. Unfortunately, Ms. Burgess did not seem to take responsibility for her actions which led to a separate meeting with the licensee, Frank Damato [sic].
ISSUES
[23] Kids Kingdom submits that it was denied procedural fairness by the Director, that her decision was unreasonable, that the Director was biased, and that this court should therefore order the Director to approve Ms. Burgess. In support of its submissions, Kids Kingdom seeks to rely on affidavit evidence of Ms. Burgess and Mr. D’Amato regarding the hours that Ms. Burgess worked, what occurred during the meeting of August 18, 2022, and what occurred during the inspection of Mr. Korn on December 21, 2022. The respondent objects to the introduction of this evidence.
[24] The issues to be decided in the application, therefore, are:
Is the affidavit evidence of Ms. Burgess and Mr. D’Amato admissible?
Was Kids Kingdom denied procedural fairness regarding the Director’s decision not to approve Ms. Burgess?
Was the Director’s decision unreasonable?
Was there a reasonable apprehension of bias on the part of the Director?
What is the appropriate remedy?
ANALYSIS
Is the affidavit evidence of Ms. Burgess and Mr. D'Amato admissible?
[25] The respondent objects to two aspects of Ms. Burgess’ affidavit evidence on the application. The first relates to her hours of work at Kids Kingdom. At paragraph four of her affidavit, Ms. Burgess deposes that she worked from 7:00 a.m. to 6:00 p.m. on the weekdays and often in the evenings and on weekends. She deposes that she was always on call and available at any hour of the day. The second aspect of Ms. Burgess’ evidence to which the respondent objects relates to what happened during the August 18, 2022, meeting. Ms. Burgess deposes that, during that meeting, she expressed frustration about the merits of some of the complaints that were being made and was critical of the Ministry about some of the inspections that had been conducted as a result. Ms. Burgess deposes that the Director stopped her from speaking several times and that she ultimately left the meeting after breaking down into tears.
[26] The challenged portion of Mr. D’Amato's affidavit also includes evidence about Ms. Burgess’s work hours. In addition, Mr. D’Amato’s challenged evidence includes a discussion of what happened during Mr. Korn’s inspection on December 21, 2022. Mr. D’Amato deposes that the incident of December 9 involving the child in the stroller was captured by a video surveillance camera, which showed that the child had been removed from the stroller for a period of time during the inspection, apparently unknown to the program advisers. Mr. D’Amato further deposes that he gave a USB drive containing this surveillance footage to Mr. Korn, together with a written statement from Ms. Burgess as to why the child had been placed in the stroller.
[27] The respondent submits that the challenged evidence of Ms. Burgess and Mr. D'Amato is an attempt to reframe or contradict evidence that was before the Director and, therefore, impermissibly strays into the merits of her decision: Martin v. Ontario Civilian Police Commission, 2020 ONSC 1116 (Ont. Div. Ct.), at para. 17. I am unable to agree.
[28] The respondent is correct in submitting that the judicial review of an administrative decision is ordinarily based only on the record that was before the decision maker: APUO v. University of Ottawa, 2016 ONSC 2897 (Ont. Div. Ct.), at para. 15. However, exceptionally, affidavit evidence may be admitted to show an absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by reference to the record alone: 142445 Ontario Ltd. v. I.B.E.W., Local 636 (2009), 251 O.A.C. 62 (Ont. Div. Ct.), at para. 18; Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (Ont. C.A.). In my view, the challenged evidence of both Ms. Burgess and Mr. D’Amato fits within these exceptions.
[29] Ms. Burgess’s evidence about what happened during the meeting of August 18 is admissible to support Kids Kingdom’s argument about bias and her evidence about her hours of work is admissible to demonstrate the procedural unfairness that resulted from the Director’s failure to give notice.
[30] Mr. D’Amato’s evidence about the inspection by Mr. Korn on December 21, 2022, is admissible to show either a complete absence of evidence or bias. Section 33 of the CCEYA provides that an inspector must prepare a report following an inspection and must give a copy of that report to a director. Yet, I have been unable to find the report in the record of the decision maker. Further, the Director made no reference to the report and no reference in her decision to the evidence given by Kids Kingdom to the inspector. Either the report should have been before the Director or, if it was, it should have been considered.
[31] For these reasons, I would admit the challenged evidence of both Ms. Burgess and Mr. D’Amato.
Was Kids Kingdom denied procedural fairness regarding the Director’s February decision?
[32] The scope of the duty of procedural fairness depends on the context in which a particular decision is made: Baker v. Canada, [1999] 2 S.C.R. 817. The parties agree that, in the context of this case, the duty of procedural fairness included notice of the case to be met and an unbiased decision maker. The parties also agree that the standard of review for procedural fairness is that of correctness: Khela v. Mission Institution, 2014 SCC 24, [2014] 1 S.C.R. 502 at para. 79. Kids Kingdom submits that both these aspects of the duty of procedural fairness were breached in this case.
[33] Kids Kingdom submits that the Director breached the duty of procedural fairness as it relates to notice in two ways. First, it contends that the Director relied on undisclosed, anonymous, and prejudicial complaints. I am unable to agree.
[34] It is true that the complaints themselves were not disclosed until Kids Kingdom brought this application. However, the record supports the advice of the Director in her email of August 26, 2022, that each complaint that engages the Act or the General Regulation results in an inspection. The reports that were completed after each inspection were then made available to Kids Kingdom and each report contained a discussion of the non-compliance that was either the subject of the complaint that led to the inspection or observed by the program adviser during it. For example, the complaint dated January 12, 2022, that led to the January 13, 2022, inspection related to Kids Kingdom’s failure to follow COVID-19 screening measures. This failure was referred to specifically in the report completed following the inspection (AR, p. 1075). Further, as the respondent submits, the inspections made between January 12 and August 10, 2022, were discussed with Kids Kingdom ownership and staff during the August 18, 2022, meeting.
[35] For these reasons, I am not able to accept Kids Kingdom’s submission that the Director relied on the substance of undisclosed complaints. However, the fact that the Director purported to rely on the number of such complaints does cause me concern, as I will expand upon shortly.
[36] The other way in which Kids Kingdom alleges the Director breached the duty to give notice is by departing in her February reasons for refusing approval of Ms. Burgess from the reasons she gave in December for revoking that approval. There is no doubt that she did.
[37] In her letter of December 9, 2022, revoking Ms. Burgess’s approval, the Director cited the observations made and information obtained by the program advisers on that same date. In her letter of December 13, 2022, she clarified that the basis of her revocation decision was: (1) the confinement in the stroller; and (2) the raising of the staff member’s voice.
[38] In her letter of February 14, 2023, the Director cited the same reason for refusing to approve Ms. Burgess. However, in her reasons of February 22, 2023, the Director provided three reasons for her decision not to approve, only one of which related to the inspection made on December 9. In particular, the Director relied on:
(1) absenteeism on Ms. Burgess’s part;
(2) the number of complaints made between January 2022 and February 8, 2023; and
(3) the prohibited practice which Mr. Korn investigated.
[39] As Kids Kingdom submits, it could not have known prior to submitting its application for approval that the application might fail because of the first and second reasons cited by the Director in her reasons of February 22, 2023. With respect to Ms. Burgess’s alleged absenteeism, as the respondent concedes in its factum, Ms. Burgess was present during at least two of the four inspections that the respondent contends were relied upon by the Director. According to Kids Kingdom, she was also present on two other occasions, although she arrived later on one of them. Further, neither the Act nor the General Regulation require the supervisor to be on site at all times, providing she names a designate. Based on the record, the only time that Ms. Burgess's absence appears to have been raised as an issue was during the inspection of December 9, 2022. Yet, her absence was not relied upon as a reason for revoking her approval as a supervisor on that date.
[40] Because of these facts and statutory provisions, Kids Kingdom could not know that Ms. Burgess’s alleged absenteeism was an issue and, therefore, did not advance the evidence and arguments it seeks to advance in this application to answer the Director’s reported concerns.
[41] The same is true with respect to the Director’s reliance on the number of complaints as a reason for refusing to approve Ms. Burgess, although perhaps to a lesser extent. As of the meeting of August 18, 2022, the Ministry had received five complaints during 2022 about Kids Kingdom. The number of complaints was the main reason expressed by the Director for wanting to meet on that date. Those complaints were discussed at the August 18 meeting and both Kids Kingdom and the Director had agreed on a way forward. In her email to Mr. D’Amato of August 26, the Director wrote:
As we all know, these past few years have drastically impacted the child care sector in many ways, and the addition of Canada-Wide Early Learning and Child Care System ($10 a day program) has also brought on additional stresses for licensee [sic] and families. However, I am confident that with your demonstrated support to Meaghan and her team, and your involvement as the licensee, that the priority will continue to be in supporting the children and families in our communities.
Again, thank you for taking the time to meet with us and we look forward to this continued collaboration.
[42] Given this history, it cannot be said that Kids Kingdom ought to have known that it should address once again the complaints that had been addressed on August 18, 2022. Nor could Kids Kingdom possibly have known that it should address the complaint made in February 2023, months after Ms. Burgess's approval as a supervisor was revoked.
[43] For these reasons, it was procedurally unfair for the Director to rely on Ms. Burgess’s absenteeism and the number of complaints the Ministry had received without providing notice to Kids Kingdom that these allegations might form the basis of her decision. It was not enough, as the respondent contends, for the Director to have warned Kids Kingdom in her message of December 15, 2022, to counsel for Kids Kingdom that Ms. Burgess’s “past conduct will come into play when reviewing the application” because Ms. Burgess's alleged absenteeism had not been an issue in the dealings between the parties prior to the February application and it appeared that Kids Kingdom had already addressed the number of complaint received at the August 18, 2022, meeting.
[44] The Director's decision, therefore, must be set aside.
Was the Director's decision unreasonable?
[45] The parties agree that the standard of review of the Director’s February decision is reasonableness. To be reasonable, a decision must be justifiable in relation to the facts and the law: Canada (Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 85. Kids Kingdom submits that the Director’s February decision fails to meet this standard.
[46] As the decision relates to Ms. Burgess’s absenteeism, Kids Kingdom points out that, as mentioned earlier, Ms. Burgess was present for the majority of the inspections occurring before her approval was revoked and nothing in the Act or the General Regulation requires that a supervisor always be on-site.
[47] As the Director’s decision relates to the number of complaints, Kids Kingdom submits that there is no evidence that any complaint ever went unaddressed or unredressed. It highlights that the final complaint relied upon by the Director occurred on February 8, 2023, months after Ms. Burgess’s approval as supervisor had been revoked.
[48] Finally, as the Director’s decision relates to the December 9, 2022, inspection, Kids Kingdom submits that Ms. Burgess did not engage in any prohibited practice. With respect to the stroller incident, Kids Kingdom submits that the Director ought to have had before her the video surveillance provided to Mr. Korn showing the child being removed from the stroller. Kids Kingdom also submits that s. 48 of the General Regulation only prohibits the use of a stroller for discipline or surveillance purposes, whereas the parents of the child in question in this case had provided written authority to Kids Kingdom to use the stroller as a means of making the child feel more secure.
[49] With respect to the incident in which a voice was raised to a child, Kids Kingdom points to the inspection report of December 9, 2022, in which it was noted that Ms. Burgess was not the staff member involved and that she had not been made aware of the incident before that date.
[50] On the basis of all of these submissions concerning the reasonableness of the Director’s February decision, Kids Kingdom goes on to ask for an order in the nature of mandamus, compelling the Director to approve Ms. Burgess as a supervisor.
[51] Given my conclusion that the Director’s decision must be set aside on the basis of procedural fairness, we need not determine the reasonableness of that decision. Because, as I will explain, an order in the nature of mandamus ought not to be made in this case, we need not consider these arguments any further.
Was there a reasonable apprehension of bias on the part of the Director?
[52] Given my conclusion on the issue of procedural fairness, we need not consider Kids Kingdom’s arguments on this issue.
What is the appropriate remedy?
[53] Based on the merits of its position on reasonableness, Kids Kingdom asks this court to make an order in the nature of mandamus, compelling the Director to approve Ms. Burgess as a supervisor. I would not make this order.
[54] A court should substitute its own decision for that of an administrative decision maker only where a particular outcome is inevitable and where remitting the matter back to an administrative decision maker would serve no useful purpose: Vavilov, at para. 142. For reasons I think it best not to expand upon, I do not believe this is such a case.
[55] Instead, I would remit the matter to a different director for a fresh decision along with a reminder that the director considering the application must provide Kids Kingdom with notice of his or her concerns, disclosure of the basis for those concerns, and an opportunity to address them before the decision is made.
CONCLUSION
[56] The Director's decision not to approve Ms. Burgess must be set aside because it was arrived at after denying Kids Kingdom notice of the case it had to meet.
[57] Because Ms. Burgess's approval as a supervisor is not inevitable, the application must be remitted to a director for a decision. However, given the history of this matter, it must be remitted to a different director to ensure that no reasonable apprehension of bias arises with respect to the fresh decision, which should be made only after providing Kids Kingdom with proper notice of the case it has to meet.
COSTS
[58] Kids Kingdom seeks partial indemnity costs in the amount of $14,507.61, including disbursements and HST. Ordinarily, I would find this amount to be reasonable in the circumstances of this case. However, unlike the respondent, the applicant failed to comply with this court's notices concerning the use of bookmarks in the 1684-page application record. This could only have resulted in in the respondent spending additional time preparing its response, as it did in preparing these reasons. Therefore, I would not award the full amount of the partial indemnity costs sought and would, instead, award Kids Kingdom the all-inclusive amount of $10,000.
Ellies R.S.J.
I agree _______________________________
J.A. Ramsay J.
I agree _______________________________
Leiper J.
Released: January 23, 2024
CITATION: Kids Kingdom Daycare Inc. v. Ontario (Min. of Education), 2024 ONSC 487
DIVISONAL COURT FILE NO.: DC-23-2778
DATE: 2024/01/23
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ELLIES R.S.J., J.A. RAMSAY AND LEIPER JJ.
BETWEEN:
KIDS KINGDOM DAYCARE INC.
Applicant
– and –
HIS MAJESTY THE KING IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF EDUCATION
Respondent
REASONS FOR decision
Released: January 23, 2024
CORRECTED DECISION: The text of the original decision was corrected on September 3, 2024, and the description of the correction is appended below:
- The spelling of the lawyer’s name, Nathan Clarke, was corrected on page 1.
[^1]: A complaint received on February 22, 2022, was not investigated because it did not engage the Act or the General Regulation.