AA v. BB and CC, 2020 ONSC 3423

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

COURT FILE NO.: CV-15-109 DATE: 20200601 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AA, Plaintiff AND: BB and CC, Defendants

BEFORE: J.C. Corkery J.

COUNSEL: AA, self-represented BB, not appearing CC, self-represented Andrea Luey for the intervenor, Justice for Children and Youth

HEARD: October 18, 2019, November 12, 2019, and December 18, 2019.

Endorsement

1The plaintiff brings this motion seeking to have my judgment amended to replace the initials used to refer to the parties with their full names. The use of initials prevents him from discussing the judgment and from taking steps to enforce it. The plaintiff relies on Rule 59.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and submits that the use of initials in the judgment was an “accidental slip” in an order that should be amended.

2On October 28, 2019, I ruled that ss. 45(8) of the Child and Family Services Act, R.S.O. 1990, c. C.11 applied to my judgment. This Act was repealed and the same provision is now contained in subsection. 87(8) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 which reads:

(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

3In my reasons, dated December 16, 2019, I stated that the subsection must be interpreted in a manner that gives full and meaningful effect to the stated paramount purpose of the Act: “to promote the best interests, protection and well-being of children. [See section 1(1)]”. I held that a child’s privacy interest was protected by section 87 at every stage of a child protection matter, including the initial report and any investigation, as well as the court proceeding and hearing, without exception. Section 87 is mandatory, not discretionary.

4On December 18, 2019, I received further oral submissions on an appropriate remedy, in light of my ruling. I invited submissions on whether there was a manner in which I could provide reasons that identified the parties in this proceeding while still complying with subsection 87(8), and whether I am able to address an earlier related ruling by MacDougall J. should I determine that it contravenes subsection 87(8). I also invited the parties to provide written submissions with respect to whether I was functus officio.

Functus officio

5In this case, an order was never taken out. No order was signed and entered.

6Counsel for the intervenor’s position is that this court is functus officio. However, that position rested on the mistaken assumption that an order had been taken out.

7The plaintiff submits that this court is not functus officio. The plaintiff submits that I can grant the relief sought and should do so, pursuant to the provisions in rule 59.06(1) to correct a “slip.”

8Rule 59.06 addresses “Amending, Setting Aside Or Varying Order”. It does not apply in cases such as this where no order has been taken out. Normally, a court is not functus officio until an order has been taken out. However, it will depend on the circumstances of the case, see: Brown (Trustee of) v. Municipal Property Assessment Corp., Region 14, 2014 ONSC 7137, at paras. 18-19.

9This motion is concerned with upholding the mandatory requirements of subsection 87(8). Ensuring such compliance is, in my view, something that may be addressed by this court at any time. It does not depend on whether an order has been taken out. The doctrine of functus officio has no application. No endorsement, judgment or order can be published or made public in a manner inconsistent with subsection 87(8), if it applies.

The appropriate remedy

10Having determined that subsection 87(8) does apply, I have considered whether reasons might be released in a manner that respected the requirements of subsection 87(8) while using the full names of the parties. Counsel for the intervenor presented several alternative approaches to addressing the plaintiff’s motion that included such an option. The plaintiff rejected these proposals.

11Using actual names will always present a much higher risk of offending subsection 87(8). Once the names of the parties are revealed in a court decision, it will be difficult, if not impossible, for the court to know what additional facts included in the judgment may still point to or identify the persons protected by subsection 87(8). Even the use of initials is potentially compromising, particularly where it can be discovered that the full names of the same parties have been used in another related proceeding.

12That is the case here. MacDougall J., in earlier related decisions, used the name of one of the parties without any consideration of subsection 45(8) of the old Act.

13The appropriate remedy in this case is to use letters, not initials, in this judgment and in all the other decisions related to this case, including the endorsements by MacDougall J. and the decision of the Child and Family Services Review Board he referred to.

14To address the plaintiff’s difficulty in enforcing his judgment, an order shall be prepared and entered by the court’s administration in accordance with Rule 59.03 of the Rules of Civil Procedure (Form 59B) using the full names of the parties and granting judgment in favour of the plaintiff in the amount of $25,000 against both defendants, jointly and severally. That judgment shall be placed in a new court file with a new court file number, containing no reference whatsoever to this file. A copy of this endorsement shall also be included in the file, placed in a sealed envelope and marked “Sealed by order of J.C. Corkery” together with the date.

15Order to go as follows:

1. The court file for this matter and court file 104/15 shall have the warning that appears at the top of this endorsement printed and taped to the front/top of each file folder or file box.
2. The judgments and any endorsements related to this matter, including the endorsements of MacDougall J. (2015 ONSC 3477 and 2015 ONSC 4504, Court file: 104/15) and reasons of the Child and Family Services Review Board (2014 CFSRB 62) shall be amended to use the letters AA, BB and CC in place of the names or initials of parties.
3. The court shall notify electronic publishers of the decisions listed above in order to remove from publication any decision referenced in paragraph 15(2) that does not use letters in place of names or initials.
4. There shall be no costs of this motion.

J.C. Corkery J.