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Family - Child Care and Early Years Act, 2014 (CCEYA). Kids Kingdom Daycare Inc. v. Ontario (Min. of Education)
In Kids Kingdom Daycare Inc. v. Ontario (Min. of Education) (Div Court, 2023) the Divisional Court considered (and allowed) a JR, here under the Child Care and Early Years Act, 2014 (CCEYA). These quotes illustrate some of the structure and investigative procedures of the CCEYA:[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.
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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].
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