Court File and Parties

CITATION: R(H.C.) v. Children’s Aid Society of Toronto, 2025 ONSC 2139

COURT FILE NO.: DC-25-00000041-00JR

DATE: 20250411

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: R (H.C.), Applicant

AND:

CHILDREN’S AID SOCIETY OF TORONTO and CHILD AND FAMILY SERVICES REVIEW BOARD, Respondents

BEFORE: The Honourable Mr. Justice M.D. Faieta

COUNSEL: R (Represented by his litigation guardian H.C.) or the Applicant

Cheryl Buehler, for the Respondent, Children’s Aid Society of Toronto

Olivia Filetti and Valerie Crystal, for the Respondent, Child and Family Services Review Board

HEARD: April 7, 2025

Endorsement

[1] The applicant, H.C., is the father of R (the “Child”). The Child is 7 years old and has been diagnosed with autism. He is also non-verbal. The respondent Children’s Aid Society of Toronto (the “Society”) received a referral from the Child’s elementary school that the Child’s father, H.C., had reported that the Child had come home from school on April 18, 2024, with two large red marks or bruises on the back of his thighs and that those marks were caused by school staff. The Society investigated the complaint, and by letter dated June 11, 2024, notified H.C. that his complaint had not been verified.

[2] On July 22, 2024, H.C. submitted a complaint regarding the Society’s investigation with the respondent Child and Family Services Review Board (the “Board”) under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. (the “Act”). Pre-hearing conferences were held on September 9, 2024, and October 1, 2024 for the purpose of discussing settlement and preparing for the hearing. The hearing was held on November 14, 2024.

[3] In its decision dated December 10, 2024, the Board made the following findings in respect of the applicant’s complaints:

Description of Complaint

Finding

1

The Applicant alleges that he was not heard by the Respondent regarding his concerns that his child had experienced abuse at the hands of school staff.

Complaint dismissed.

The Respondent did hear the Applicant’s concerns that his child had experienced abuse at the hands of school staff.

2

The Applicant alleges that he was not heard regarding his concerns that the Respondent’s investigating worker was biased by a presumption that abuse had not occurred.

Complaint dismissed.

The Respondent did hear the Applicant’s concerns that the Respondent’s investigating worker was biased by a presumption that abuse had not occurred.

3

The Applicant alleges that he was not provided with an opportunity to be heard by the Respondent through a formal interview process.

Complaint dismissed.

The Applicant was not heard by the Respondent through a formal interview process, but that an interview is not required to be heard.

4

The Applicant alleges that he was not heard regarding his concerns about the lack of credibility of the alternative explanation of dermatitis as an explanation for marks on the child’s thighs.

Complaint dismissed.

The Applicant was heard regarding his concerns about the lack of credibility of the alternative explanation of dermatitis as an explanation for marks on the child’s thighs.

5

The Applicant alleges that he was not provided with reasons by the Respondent for why they did not verify abuse by school staff or with in depth details of the investigation to allow him to understand why abuse by school staff was not verified.

The Respondent did not provide the Applicant with meaningful reasons for why they did not verify abuse by school staff or with sufficient details of the investigation to allow him to understand why abuse by school staff was not verified.

The Board ordered that within 30 days the Respondent shall provide a letter to the Applicant containing the following:

a) A general explanation of how a community caregiver investigation works; what verification means and what factors are considered in reaching a verification decision; what the process is to provide feedback to the reporting person/parent; and what authority the Respondent has to direct or make recommendations to a school or school board, including what follow up they do.

b) A clear and understandable explanation regarding its investigation process regarding the April 19, 2024 report, including what steps were taken by the investigating worker, what consideration was given to the history provided by the Applicant regarding difficulties with the Child’s school; how the Child’s vulnerability factors were considered; and the setting related factors that were considered, including details of the investigation into the alternative explanation of dermatitis as an explanation for marks on the child’s thighs.

c) Where the Respondent takes the position that it is limited in its ability to respond in part or fully the Respondent shall: (a) set out the specific section(s) of the Act that, in its view, impact(s) its ability to respond to the question; and (b) provide an explanation in plain language to the Applicant about how, in its view, the section(s) apply in relation to the Respondent’s inability to provide partial or full information.

[4] On January 13, 2025, the applicant commenced this application for judicial review for, amongst other things, an order to quash the decisions of the Society dated June 11, 2024 as well as the decision of the Board dated December 10, 2024.

[5] The applicant seeks the following relief on this application for judicial review:

(a) A Declaration that the Decision of the Society substantially and procedurally violated the principles of natural justice, procedural fairness, and statutory requirements under the Child, Youth and Family Services Act, 2017 and the Charter and therefore the Decision is of no force or effect.

(b) An order of certiorari quashing the decision of the Society dated June 11, 2024.

(c) Review of the decision by the Board dated December 10, 2024, for failing to provide the appropriate remedy that the applicant sought.

(d) A Declaration that the Decision of dismissing allegations by the Board is invalid due to errors in law, fact and/or mixed fact and law.

(e) A Declaration that the Decision of the Board substantially and procedurally violated the principles of natural justice and therefore needs to be corrected.

(f) A Declaration that the Decision of Society and the dismissal of allegations by the Board unreasonably and unjustifiably infringed the applicant’s section 7 right as protected by the Canadian Charter of Rights and Freedoms (the “Charter”).

[6] On February 13, 2025, a Case Management Conference was held. Amongst other things, Justice Charney ordered that the following motions brought by the applicant would be heard:

(a) Should personal information of third parties found in the Society’s record of proceeding should be unredacted as requested by the applicant?

(b) Should a copy of the transcript of the hearing before the Board should be prepared from an audio recording made by the Board?

(c) Is counsel for the Board in a conflict of interest?

Issue #1: Disclosure of the interviews conducted by the Society’s Caseworker with School Staff

[7] The applicant describes this motion as follows:

THIS MOTION, made by the Applicant, for the production of details from caseworker Majuri Sabaratnam’s interview with school personnel regarding the child's physical harm and bruises in both thighs, classroom 106’s staff including supply support staff’s duty roster, security footage review of Gate 1 of that morning, and alternative explanations for dermatitis, as well as interviews with cleaning contractors.

[8] The Society has provided H.C. with all records in its possession. The records mainly document the Society’s interviews with school staff. There are limited redactions which serve to protect the personal information and identity of the interviewees. The personal information of any person under suspicion by the Society has also been redacted.

[9] I accept the Society’s view that none of the information redacted is necessary to determine whether the Society’s investigation decision was unreasonable or lacked procedural fairness. While the personal information of the teacher and educational assistant at issue has been redacted, H.C. has been provided with a copy of their statements in full.

[10] I dismiss H.C.’s motion for further production. The disclosure of the personal information of the interviewees and others would not assist in advancing this application for judicial review.

[11] The applicant also asks for other information including video recordings and school logs. These records would be in the possession of the school and are not in the possession of the Society.

[12] H.C. also raised the issue that an unredacted copy of the Board’s record had been filed with the Court. H.C. noted paragraph 15 of Justice Charney’s Order that any information that may have the effect of identifying the Child or the Child’s parents shall be redacted and initialized in this proceeding. The Board wrote to the parties to destroy the unredacted record that it had delivered. As well, the Board later provided by the Court with a redacted copy of the record that complies with Justice Charney’s Endorsement.

Issue #2: Should a transcript of the prehearing and hearing be produced by the Board?

[13] The applicant seeks an order for “… the production of the unedited versions of the transcripts from the pre-hearing held on October 1, 2024, and the hearing held on November 14, 2024, by the Child and Family Services Review Board”.

[14] The Board does not audio record or transcribe its pre-hearings. Thus, the motion in respect of the transcript from the pre-hearing held on October 1, 2024 is dismissed on this basis.

[15] There are numerous considerations in respect of the request for a copy of the transcript from the hearing held on November 14, 2024.

[16] The applicant relies on s. 20(e) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 which states that “[a] tribunal shall compile a record of any proceeding in which a hearing has been held which shall include, … the transcript, if any, of the oral evidence given at the hearing”. However, the hearing at issue here was held under s. 120 of the Child, Youth and Family Services Act. Pursuant s. 119(9) and s. 120(6) of that Act, the SPPA is inapplicable to such hearings.

[17] Section 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”):

When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made.

[18] The phrase “record of proceedings” is not defined under the JRPA. At common law, the record consists of “… all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings”: R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw, [1952] 1 All E.R. 122, at p. 130, per Lord Denning. The record should contain “… the pleadings or analogous documents, the evidence that was before the decision-maker, and transcripts (if oral evidence was taken and recorded for purposes of transcription).”: LifeLabs LP v. Information and Privacy Commr. (Ontario), 2022 ONSC 5751, at para. 14, per D.L. Corbett J.

[19] The Board is one of thirteen tribunals of Tribunals Ontario. At the time that the hearing was held on November 14, 2024, Tribunals Ontario had previously issued the following policy, dated June 28, 2024, which states that the Board would audio record its hearings, but not its pre-hearing events, for internal quality assurance purposes:

Starting July 2024, tribunals under Tribunals Ontario will audio record hearings. The audio recordings will be used for internal quality assurance purposes.

The Landlord and Tenant Board, Social Benefits Tribunal and Ontario Parole Board have been recording their hearings for many years. Effective July 1, 2024, the Animal Care Review Board, Assessment Review Board, Child and Family Services Review Board, Custody Review Board, Fire Safety Commission, Human Rights Tribunal of Ontario, Licence Appeal Tribunal and Ontario Special Education Tribunals will also record their hearings.

Tribunals will not audio record any “pre-hearing events” such as case management conferences, mediations, and settlement conferences unless the tribunal orders otherwise. Individuals who wish to make their own audio recording of a hearing must seek the approval of the tribunal.

[20] In light of the above policy, the Board has confirmed that an informal audio recording of the hearing held pursuant to s. 120 of the Act on November 14, 2024 exists. There is no indication of how the recording was made nor of its quality or completeness. Typically a court reporter is required to record the audio of the hearing and to take notes during the hearing, when needed, to ensure that the audio can be accurately transcribed. This formal process is consistent with the requirements for the admissibility of a transcript imposed by s. 5(2) of the Evidence Act, R.S.O. 1990, c. E.23.

[21] There is no obligation on a tribunal to prepare and keep an audio recording of a hearing for purposes of transcription, nor is there any obligation on a tribunal to have prepared a transcript: See Endicott v. Ontario (Independent Police Review Office), 2014 ONCA, at paras. 41, 46.

[22] The Board refuses to prepare a transcript of the hearing from the informal audio recording. However, it does not object if the applicant wishes to do so. The Society takes no position. I have concerns whether a transcript based on the recording will be admissible given s. 5(2) of the Evidence Act as well as the likelihood that it will be difficult to prepare a reliable transcript based on this audio. Nevertheless, the applicant is adamant that he requires a transcript of the hearing in order to advance the merits of his application for judicial review.

[23] Accordingly, I order that the Board release a copy of the informal audio recording of the hearing held on November 14, 2024 to the applicant. Any transcript prepared from this recording shall be at the applicant’s own cost. The applicant shall comply with the following terms sought by the Board:

The recording, and any transcript created from the recording, must not be used for any purpose outside of this application for judicial review and must not be shared with or disseminated to anyone. If a transcript created from the recording is filed in court on this judicial review, it must be redacted or initialized to remove any information that may have the effect of identifying the child or the child’s parents.

[24] This order should not be interpreted as determining that whatever transcript is prepared from the informal audio recording prepared for the hearing will be admitted as evidence at the hearing of the application for judicial review. The Society and the Board also reserve their right to challenge the admissibility of whatever transcript, if any, is prepared.

Issue #3: Should counsel for the Board be disqualified on the basis that she has a conflict of interest?

[25] The applicant describes the relief sought as follows:

The applicant respectfully moves this Honourable Court for an order related to the conflict of interest arising from a false statement made by counsel Olivia Filetti regarding the non-existence of CFSRB transcripts.

[26] The applicant submits that:

(a) Ms. Filetti, as a representative of the Board, made a false statement asserting that the Board transcripts do not exist. The false statement demonstrably untrue and has a significant bearing on the present proceedings.

(b) The false statement made by Ms. Filetti creates a clear conflict of interest, as it undermines the credibility and impartiality required of legal counsel representing a public body.

(c) The integrity of the judicial system is paramount to maintaining public trust. Ms. Filetti’s false statement jeopardizes the public interest by eroding confidence in the transparency and accountability of the Board.

(d) The principles of natural justice demand fairness and truthfulness in all judicial proceedings. Ms. Filetti’s conduct compromises these principles, necessitating her disqualification to ensure a fair process.

[27] The applicant states that Ms. Filetti falsely suggested that the transcript of the hearing existed when it in fact it does not. The following facts are pertinent:

(a) On January 22, 2025, the applicant contacted the Board and requested a copy of the transcripts for both the pre-hearing conference and the hearing.

(b) On January 23, 2025, Ms. Filetti, as counsel for the Board, advised the applicant and other parties that:

On my end, note that the CFSRB is assembling its Record of the Proceedings, as required, and will serve and file that Record as soon as possible. To assist the applicant’s understanding, that Record will contain the information necessary to assist with all parties’ arguments on this judicial review. I am aware of the applicant’s request for transcripts and will include those in the Record.

(c) On January 30, 2025, Ms. Filetti advised the applicant and other parties:

Again, I will be compiling a Record of Proceedings, in accordance with s. 10 of the Judicial Review Procedure Act. I am in the process of determining what the Record will contain and any confidentiality considerations. Mr. [redacted], I acknowledge the request for transcripts and will advise if there are any that can be included in the Record.

[28] The applicant states that Ms. Filetti’s email dated January 23, 2025 suggests that a transcript exists and will be included in the record. One week later, Ms. Filetti clarified that she would ascertain whether a transcript existed. The applicant’s characterization of this misstatement as one that undermines the integrity of the justice system is a gross exaggeration. The statement was based on an innocent assumption, made in error, that caused no prejudice to the applicant given that a transcript of the hearing has never existed.

[29] The applicant further submits that Ms. Filetti advised Justice Charney at the hearing of the Case Conference on February 13, 2025, that the Board “… does not record its hearings, and there is no transcript. This directly contradicts Ms. Filetti’s earlier assurance to include transcripts in the Record and the Board’s earlier affirmation that the Board does not provide hearing recordings as these are for internal use only. As these representations are contradictory, it raises the question of whether Ms. Filetti’s statements are misleading”. The following facts are pertinent to assessing the applicant’s assertion:

(a) The applicant has obtained a transcript of the Case Conference held before Justice Charney on February 13, 2025. The applicant states that Ms. Filetti lied when she told the Court that there was not a transcript of the hearing before the Board. The transcript shows the following statements:

C. BUEHLER - The other thing is that the, a complaint hearing before the CFSRB does, is not subject to the Statutory Powers Procedure Act, which means that they are not transcribed. And unless a party specifically asks and brings their own reporter, there are no transcripts from a complaint hearing at, in front of the CFSRB.

O. FILETTI: Thank you. So Ms. Buehler is right. I, I have looked into the file, thoroughly; there are no transcripts available for this proceeding. It's not something that the tribunal does as a, as a matter of course. So I understand that Mr. C has requested transcripts, but I have none to provide. I am in the process of getting a record of proceeding prepared, though, so that there is as fulsome a record as possible for him to review, prior to the judicial review hearing. I anticipate that that'll be ready by the first week of March.

THE COURT: I'm — all I'm saying to you is, Ms. Filetti tells us there are no transcripts. You say she's lying; that you say, there are transcripts. You'll have to bring a motion... H C : Yeah. THE COURT: ...to the court, and convince the court that Ms. Filetti is not telling the truth …

(b) In his Endorsement dated February 14, 2025, Justice Charney states at para. 12:

The Applicant advises that he has requested but not obtained a copy of the transcript of the hearing before the CFSRB. Counsel for the CFSRB has advised him that the CFSRB does not record its hearings and there is no transcript. The Applicant does not believe this. If the Applicant intends to bring a motion in relation to this issue, he must do so by February 28, 2025.

(c) On February 21, 2025, Ms. Filetti received a motion from the applicant requesting the production of transcripts, among other requests.

(d) On March 13, 2025, after receiving the applicant’s motion for production of the transcript, Ms. Filetti sent the following email message to the applicant:

I was reviewing Justice Charney’s endorsement in order to respond to your motion. I noticed that His Honour described me as having stated that the [Board] does not record its hearings and does not have any transcripts. This does not reflect precisely what I said. To clarify, the [Board] does not record its hearings for external purposes, including for transcript production”. [Emphasis added]

[30] Ms. Filetti agreed with the submission that the Board does not transcribe its hearings and that a transcript was not available for this hearing. However, there is no basis for the applicant’s assertion that Ms. Filetti lied to the court when she advised Justice Charney that a transcript of the hearing did not exist.

[31] Finally, the applicant raised the issue that there was a conflict of interest in Ms. Filetti representing the Board because she is employed by the Attorney General for Ontario. No basis for the bald assertion of institutional bias was provided in an intelligible form. The applicant did not focus his submissions on this assertion. I accept the Board’s submission that the Memorandum of Understanding that exists between the Ministry of the Attorney and Tribunals Ontario sufficiently pre-empts any argument of institutional bias. In particular, the MOU specifies that the Ministry lawyers shall provide day-to-day legal services to Tribunals Ontario and that while Tribunal counsel have a solicitor-client relationship with the Ontario government, their legal advice must be delivered in a way that respects the Tribunals Ontario’s independence including by maintaining confidentiality where necessary to protect the tribunal’s independence.

Costs

[32] The applicant claims his costs. The Society does not claim its costs. The Board claims nominal costs of $500.00 in respect of the applicant’s conflict of interest motion. This is not appropriate for the award of costs. However, the applicant should seriously consider retaining counsel to assist him with this application for judicial review.

Justice M.D. Faieta

Date: April 11, 2025