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CFSRB - General. H.C. v. Children’s Aid Society of Toronto
In H.C. v. Children’s Aid Society of Toronto (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, here against a CFSRB order limited to ordering the local CAS "to provide a letter explaining the investigation and why it was unable to disclose more information gathered in the investigation".
Here the court illustrates a sample of CFYSB procedures:[9] The Statutory Powers and Procedure Act, R.S.O. 1990, c. S. 22 does not apply to a proceeding by the CFSRB under s. 120: CFYSA ss. 119(9), 120(6). CFSRB has the authority to make orders and directions in its proceedings “as it considers proper to prevent abuses of its process”: O. Reg. 155/18, s. 50. Its Rules also provide a discretion to define and focus the issues as set out in CFSRB Rules, r. 24.4.
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The CFSRB’s Decision
[26] H.C. did not agree with the ICRP [SS: the CAS' 'Internal Complaints Review Panel'] decision. On July 22, 2024, H.C. applied for review of the CAST decision by CFSRB pursuant to s. 120(4) of CYFSA. In the Pre-hearing Report dated September 12, 2024, CFSRB identified the specific issues to be reviewed at the hearing: O. Reg. 155/18, ss. 39-40, 42; Rules of Procedure of the Child and Family Services Review Board, rr. 22-23. CFSRB found H.C.’s complaint eligible for review on two grounds under s. 120(4)4 and 120(4)5, as follows:. Whether H.C. was given an opportunity to be heard and represented when decisions affecting his interests were made, or a chance to be heard when he raised concerns about the services he was receiving; and
. Whether CAST failed to provide H.C. with reasons for a decision that affected his interests. [27] On the electronic hearing date of November 14, 2024, H.C. requested CFSRB to add issues focused on his concerns about the CAST’s investigation and purported violations of CYFSA. He alleged that CAST had failed to protect his child contrary to ss. 125-26 of CYFSA by conducting its investigation in an arbitrary manner. He also alleged breaches of various other sections of CYFSA. The CFSRB adjudicator declined to address the new issues, noting that the defined issues were already decided in the Pre-Hearing Report and that the new issues argued for by H.C. were not within its jurisdiction. At the same time, the adjudicator held that she would nonetheless consider all relevant provisions necessary in coming to a decision.
[28] By Order dated December 10, 2024, the adjudicator dismissed all allegations that CAST failed to hear H.C.’s concerns. On preliminary matters, the adjudicator did not accept H.C.’s argument that the Investigator was not an authorized child protection worker under CYFSA. As well, H.C. was provided adequate disclosure of the CAST investigation.
[29] Regarding the merits of the case, the adjudicator concluded that CAST did hear H.C.’s concerns including his concerns that R. had experienced abuse by school staff and that the medical examination was lacking. Additionally, the adjudicator concluded that the Investigator was not biased, and that a formal interview process was not required for an adequate investigation. However, the adjudicator found that H.C. was not provided meaningful reasons for why CAST did not verify his allegations of abuse by school staff. The adjudicator found that even if CAST felt constrained by privacy restrictions, CAST still had an obligation to explain the factors considered in its verification decision.
[30] The adjudicator therefore ordered that CAST provide H.C. with a letter setting out: (i) how a community caregiver investigation works; (ii) an explanation of the investigation process in this matter; and (iii) stating the specific statutory provisions which limit its ability to share information about the investigation with H.C.
[31] On January 10, 2025, CAST sent H.C. a letter addressing these points.
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[45] The other Baker factors are shaped by the nature of the proceeding and the law. As said in 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.
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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. See also Finn v. Highland Shores Children’s Aid Society, 2023 ONSC 5495 (Div. Ct.), at para. 21; Stamatis v. Children's Aid Society of Toronto, 2017 ONSC 7056 (Div. Ct.), at para. 76.
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[58] To start the analysis, the limited remedies given by statute to CFSRB needs to be acknowledged. CAST had already conducted a community care investigation and reached a decision. CFSRB had no authority to change the verification decision. The only relevant remedy in H.C.’s case given to CFSRB under s. 120(7) of CYFSA was to order written reasons for the complaint or to dismiss the complaint. None of the various remedial powers under s. 120(7) would give H.C. what he truly sought: the quashing of the verification decision and ultimately the upholding of his complaint. . R(H.C.) v. Children’s Aid Society of Toronto
In R(H.C.) v. Children’s Aid Society of Toronto (Ont Divisional Ct, 2025) the Divisional Court conducted a case conference, here in respect of a JR of a decision of the Child and Family Services Review Board.
Here the court considers any duties of a tribunal to record and prepare a "transcript of the prehearing and hearing be produced by the Board":[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.
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