Court File and Parties
COURT FILE NO.: FS-22-32999 DATE: 20230724 ONTARIO SUPERIOR COURT OF JUSTICE
RE: Hanieh Jamali, Applicant -and- Reza Parsamehr, Respondent
BEFORE: FL Myers J
COUNSEL: Ash Mazinani, for the Applicant Dr. Naser Abedi, for the Respondent
READ: July 24, 2023
Endorsement
Background
1The parties consent to an urgent order requiring Toronto Children’s Aid Society to provide them with a copy of its file including a staff report concerning the parties and the issues in this proceeding by August 1, 2023.
2The next case conference in this proceeding is scheduled for August 11, 2023.
3Toronto Children’s Aid Society has advised the parties that its document disclosure department is backlogged. It cannot provide the parties with a copy of its file and the report about their family before the case conference.
4I am told however, that people at the Toronto Children’s Aid Society have advised the respondent and one of the respondent’s lawyer’s offices that they could expedite delivery of the report in time for the case conference if the court ordered it to do so.
5So, the parties ask me for that order.
Analysis
6On what basis am I asked to make an order against Toronto Children’s Aid Society?
7If I am to order Toronto Children’s Aid Society to do something, do I not first need to find that they are in breach of a law requiring it to do so?
8By what standards am I to assess the requirement for such an order?
9Are counsel inviting me to make an assessment of the urgency of this case to determine if the parties truly need their file and report more than others in the queue at Toronto Children’s Aid Society? A simple consent order tells me nothing of the urgency for the file and the report either in this case or as compared to others in the queue.
10Moreover, isn’t it for Toronto Children’s Aid Society to triage its own workflow? Am I being asked to consider if Toronto Children’s Aid Society is meeting its disclosure obligations? Is that a performance standards issue or perhaps a staffing issue? Is it an issue of prioritization of resource allocation? None of that is possibly before me.
11Am I being asked for an order simply to give plausible deniability to a Toronto Children’s Aid Society clerk who can blame the court for deferring disclosure to others while jumping this report to the top of the disclosure pile?
Conclusion
12A court order is not a shield behind which to hide institutional issues. If Toronto Children’s Aid Society cannot disclose its files quickly, the answer is not for clients who can afford lawyers to obtain artificial consent orders to expedite their cases ahead of all others. Toronto Children’s Aid Society should not be asked to prioritize disclosure to the squeaky wheel or the well-healed. Toronto Children’s Aid Society is able to prioritize disclosure requests for those with early upcoming case conferences if it wishes to do so. There is no justiciable issue presented to the court in this motion.
13If the parties seek relief against Toronto Children’s Aid Society, they may move on notice to it and with proper evidence and legal support for the relief sought. Moreover, if counsel are seeking to require a public entity to comply with a legal duty with which it refuses to comply, they may also wish to consider whether the proper application is for judicial review in the nature of mandamus or a mandatory order.
FL Myers J
Date: July 24, 2023