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Family - Child - Duty to Report [CYFSA s.125-6]. Rogerson v. Grey Bruce Regional Health Centre
In Rogerson v. Grey Bruce Regional Health Centre (Ont CA, 2024) the Ontario Court of Appeal consider an appeal of a dismissed tort medical malpractice action, here focussing on the role of the now-repealed s.72 CFSA ['Duty to report child in need of protection'] 'duty to report' provisions [now CFYSA s.125-6]:[9] Based on the reasons for judgment, the trial judge did not misapprehend s. 72 by imposing too high a threshold for a duty to report or by failing to consider what the respondent physicians should have reasonably suspected, as opposed to what they actually did or did not suspect.
[10] The respondents acknowledged at trial that if they had a duty to report under s. 72 and yet failed to do so, this would be a breach of their duty of care. At the beginning of his reasons, the trial judge accurately summarized the criteria for a mandatory s. 72 report in the circumstances of this case:Section 72 of the CFSA provides, in relevant part, that if a person has “reasonable grounds to suspect” that “there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child” or “resulting from that person’s failure to adequately care for, provide for, supervise or protect the child” then that person has a duty to forthwith report the suspicion and the grounds for it to the CAS. [11] The appellants contend that this summary was insufficient. They say that the trial judge should have referred to the goals of the child protection legislation that compel a broad interpretation of the duty to report, based on the reasoning in Young v. Bella, 2006 SCC 3 (CanLII), [2006] 1 S.C.R. 108, at paras. 48-49, and the low threshold for triggering that duty articulated in B.K.2 v. Chatham-Kent Children’s Services, 2016 ONSC 1921, at para. 51. They criticize the trial judge’s failure to refer again to the “risk” language in s. 72 in his analysis of the respondent physicians’ alleged breaches shows that he applied the wrong standard.
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[13] The trial judge was aware of the low threshold for reporting. This threshold is inherent in the “reasonable grounds to suspect ... a risk” standard he cited. The judgment moreover followed a 24-day trial during which both the scope of the reporting requirement in s. 72 and the potential for a risk of physical harm to Tyson were critical issues and the focus of much competing expert evidence and argument by the parties.
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[22] Finally, even if this court accepted the appellants’ arguments on the issues already canvassed, the appeal would fail given the trial judge’s findings about what would have happened had a s. 72 report been made. To succeed in their action, the appellants had to prove that, had either Dr. Savaria or Dr. Nwebube alerted CAS to Tyson’s situation, the CAS would have either immediately removed Tyson from Ms. Camsell’s care or required that she be subject to full-time supervision. The trial judge found that the appellants had not proved this. He explicitly rejected the evidence of the appellants’ expert, Carolyn Buck, that the CAS would have intervened on an urgent basis. He found that her opinion was premised on an inaccurate and incomplete understanding of the facts. Based on the testimony of the respondents’ expert, Rod Potgieter, and evidence about Ms. Camsell’s circumstances on December 17, 2007, the trial judge concluded that “any CAS involvement would have been minimal and not enough to prevent the injury to Tyson”. . Finn v. Highland Shores Children’s Aid Society
In Finn v. Highland Shores Children’s Aid Society (Div Court, 2023) the Divisional Court considered (and allowed) a JR brought by an applicant who, after a CAS investigation [initiated under CYFSA s.125] had been 'verified' (or 'coded') [under CYFSA s.126] as a 'risk to children'.
These quotes illustrate these 'verification' procedures (some impugned, see paras 37-52), and available related administrative reviews:[6] After a parent intervened, a teacher collected statements from the girls, and the school principal reported the allegations to the Respondent CAS, pursuant to his duty under s. 125 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “CYFSA”), and to the Applicant’s church employer, the Roman Catholic Archdiocese of Kingston.
[7] The CYFSA empowers the CAS to conduct investigations and make findings as to whether an individual represents a risk of physical, sexual or emotional harm to children. Such determinations are referred to as “verifying” the “coding” of the individual in question as representing a particular risk as defined in the Ontario Child Welfare Eligibility Spectrum (“the Spectrum”), set out in the Ontario Child Protection Standards, 2016.
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[10] Mr. Brown met with the Applicant on September 17, 2018. The Applicant stated repeatedly that the privilege attaching to the confessional forbade him from saying anything that was discussed in confession, and that, consequently, while he did not admit to the allegations, he couldn’t deny them either because to do so would require him to breach confessional privilege.
[11] Immediately after that phase of the meeting, Mr. Brown announced that the decision had been made to “code” the Applicant as posing a risk to harm under two provisions of the Spectrum- 1.3.J and 3.B.1 – the former designating him as a risk of sexual harm to children; the latter as a risk of emotional harm.
[12] The next day, September 18, 2018, Mr. Brown and Ms. Whitley conducted a Verification Conference in which they confirmed the decision pronounced the day before. On September 20, 2018, the CAS issued a formal letter setting out its decision to “code” the Applicant as a risk of harm to children, directing it to the Applicant, the Archdiocese and the school.
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Post-Investigation Decision
[14] On December 29, 2018, the Applicant requested a review of the decision. He reiterated what he said were the limits of confessional privilege placed on anything alleged to have happened in the confessional. The Respondent denied the request and affirmed its decision on February 1, 2019.
[15] The Applicant then invoked a review of the decision by an Internal Complaints Review Panel (“ICRP”) of the CAS, and pursued disclosure of the Respondent’s file. Progress on the matter was delayed partly due to the COVID-19 pandemic. The Respondent eventually produced the record of its investigation, its decision, and the reasoning for it, with redactions concealing the names of the complainants. Disclosure was completed by a Disclosure Meeting held on October 28, 2021.
[16] On March 17, 2022, the Applicant requested that the Respondent convene the ICRP review. On April 20, 2022, the CAS responded that the ICRP process was unlikely to yield a different result, waived further steps, and stipulated that it would not contend, in any judicial review application brought by the Applicant, that he had failed to exhaust the ICRP avenue of redress. . Finn v. Highland Shores Children’s Aid Society
In Finn v. Highland Shores Children’s Aid Society (Div Court, 2023) the Divisional Court considered (and allowed) a JR brought by an applicant who, after a CAS investigation [initiated under CYFSA s.125] had been 'coded' (or 'verified') [under CYFSA s.126] as a 'risk to children'.
In these quotes the court considers procedural fairness issues, particularly where prescribed CFYSA s.126 'verification' procedures ['Society to assess and verify report of child in need of protection'] (the 'Ontario Child Protection Standards') are not met:Issue #1: Was the Applicant denied procedural fairness?
Applicant’s Position
[24] The Applicant contends that the way the Respondent carried out its investigation was procedurally unfair. He submits that the duty of fairness in this case required that the Respondent afford the Applicant the right to an oral hearing where complainants could testify and he would have a fair opportunity to cross-examine them. This is so, the Applicant argues, because the impact of the decision and the centrality of credibility to the decision strongly point to this necessity. The Applicant submits there were no legislative constraints on the CAS limiting its ability to proceed this way. The duty of procedural fairness can be read in to extend the process to include an oral hearing if the facts of the case demand. Prior case law finding that decisions on coding do not require an oral hearing does not “stand in the way” of a determination that the duty requires this right to an oral hearing, he asserts.
[25] In the alternative, the Applicant contends that the procedure failed to adhere to the mandatory framework set out in the Ontario Child Protection Standards. The Applicant submits the framework required that a decision to verify a coding is to be made by the investigator and their supervisor at a verification conference after all relevant information has been assembled. Further, the Applicant submits the decision was made without the Respondent having examined the scene of the alleged events, within little time after interviewing the Applicant, and without a verification conference. This framework was the only procedural safeguard for the Applicant, and he had a reasonable expectation that it would be followed.
Respondent’s Position
[26] The Respondent submits it met the duty of fairness required. The investigative procedure set out by the Regulation does not set out notice provisions or hearing provisions. The decision did not require an assessment of competing credibility and the CAS was entitled to draw inferences from admitted facts. The Respondent submits that its choice of procedure is entitled to deference, and maintains that it complied with the statute and relevant policy in the investigation. Investigative techniques never include cross-examination of children, it asserts, and the investigative process is purely administrative. An oral hearing, it contends, was not required to satisfy the demands of natural justice.
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Issue #1: Was the manner in which the Respondent carried out its investigation of the allegations and the making of its decision to verify the “coding” of the Applicant as a risk of sexual or emotional harm procedurally unfair?
[37] The common law duty to be fair applies to virtually every public authority making an administrative decision which affects the rights, privileges or interests of an individual. This includes CAS decisions to verify the “coding” of an individual as a risk of harm to children: Chapman, at paras. 39-46.
[38] The content of the duty of procedural fairness is flexible and varies from case to case, depending on an appreciation of the context of the particular statute and the right affected, keeping in mind that the purpose of the duty of procedural fairness is to ensure that administrative decisions are made through a process in which the individual affected has the opportunity to present his case fully and fairly, and have decisions affecting his rights, interests or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context: Baker, at para. 22.
[39] Criteria which can be relevant to determining the content of the common law duty of procedural fairness in a given set of circumstances include (Baker, at paras. 20-32):a. The nature of the decision being made, and the process followed in making it. The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determination that must be made resemble judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required. The nature of the issue to be determined will carry more weight than the formal status of the deciding body (Baker, at para. 25);
b. The nature of the statutory scheme and the terms of the statute. Greater procedural protections will be required when no appeal procedure is provided;
c. The importance of the decision to the individuals affected. The more important the decision is to the lives of those affected and the greater its impact on those persons, the more stringent the procedural protections that will be mandated. In particular, a high standard of justice is required when the right to continue in one’s profession or employment is at stake (Ontario (Liquor Control Board) v. Vin de Garde Wine Club, 2013 ONSC 5854 (Div. Ct.), at para. 22; Jajo v. Ontario (Transportation), 2021 ONSC 5227 (Div. Ct.), at para. 54; and
d. The legitimate expectations of the person challenging the decision. It will generally be unfair for an administrative decision-maker to act in contravention of representations as to procedure set out in its own rules and policies (Baker, at para. 26; Ford v. University of Ottawa, 2022 ONSC 6828 (Div. Ct.), at para. 54-56, 69). [40] There can be no question that in the present case the outcome is of great importance to the Applicant as the individual affected. The stigma of being found to be a person posing a risk of sexual or emotional harm to children, and its immediate effect on his professional reputation and employment, is obviously of great import to a priest. It goes to the heart of his vocation and professional identity, his reputation in the community, and his employment prospects.
[41] The Applicant submits that in the circumstances of this case, the impact of the decision points strongly to the necessity of an oral hearing and cross-examination. I do not agree. This Court has already considered this issue in a similar context (Chapman, at paras. 44 and 46.):44. 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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46. 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. [42] I therefore do not accept the Applicant’s primary submission regarding procedural fairness. But while I do not go so far as to declare that the common law duty of fairness requires that the Applicant be afforded the right of an oral hearing and cross-examination in this case, I accept the alternative submission and agree that the CAS’s decision-making process fell short of other elements of the duty of fairness applicable in this case. The CAS failed to adhere to fundamental procedural requirements imposed by the legislative scheme.
[43] The Ontario Child Protection Standards set out what it describes, and this Court has found, to be a “mandatory framework” governing the procedure to be followed in order for a finding of verified risk of physical, sexual or emotional harm to be made. The Standards spell out mandatory requirements including the following:(1) It mandates the scope of testimonial evidence to be acquired, including the evidence of the alleged victims, other witnesses, and the alleged perpetrator.
(2) It mandates that the physical layout of the setting be examined.
(3) It mandates that the investigation be concluded only when “all information has been gathered”, and “all reasonable efforts have been made to collect evidence and continuing the investigation would yield no new information”.
(4) It mandates that the decision to verify coding is to be made in a “thorough, structured, guided and collaborative process”, “within the context of a full case review and analysis of all relevant information obtained through the referral and during the investigation”. It mandates that the decision to conclude an investigation and reach a decision to verify the risk is made in consultation with a supervisor, and explains that the verification decision is made in a conference involving, at minimum, the child protection worker and supervisor” at which “all relevant information obtained throughout the investigation is reviewed”. [44] The central thread through these requirements is that a decision whether to verify coding is only to be made by the investigating worker and his or her supervisor at a verification conference held after all relevant information has been assembled. In effect, the Standards seek to ensure some degree of procedural fairness in a situation where the CAS is both investigator and adjudicator by imposing a requirement that the decision not be made until there is some assurance that the CAS has before it all of the relevant information required to make an informed decision and by imposing a requirement that the decision must then, with all that information in hand, be made in conference with a supervisor in a collaborative and deliberated way.
[45] The manner in which the Respondent conducted the investigation and decision to verify coding breached the mandatory requirements set out in the Standards in the following ways. Mr. Brown had, by September 17, 2018, interviewed the alleged victims and other witnesses, but had not examined the room at the school and its environment. On September 17, he met with the Applicant to interview him. Mr. Brown went to the meeting with the mindset that he had decided to verify the Applicant’s coding as a risk of sexual and emotional harm unless Finn said something to convince him otherwise.
[46] Immediately after he had heard from the Applicant, with no further discussion or consideration, Mr. Brown made the decision to verify Finn’s coding, and announced that decision to Finn and the others present. In other words, he announced the decision to verify prior to having the conference with his supervisor mandated by the Standards.
[47] Mr. Brown and his supervisor, Ms. Whitley, could not explain the purpose of the “verification conference”, they held on September 18 other than to say that it was to “finalize” the decision. Mr. Brown essentially admitted that he should not have announced his final decision in the September 17 meeting.
[48] This process constituted a comprehensive departure from the central tenet of the CAS’s duty of fairness – the decision should not have been made when the CAS had not even examined the scene of the alleged events, should not have been made seconds after interviewing the Applicant, and should not have been made before the collaborative and thorough review entailed by a verification conference between the investigating worker and his supervisor. Meaningful compliance by the CAS with that central tenet was important because it is the only meaningful procedural safeguard that the Applicant had, and he had the right to expect that it would be honoured.
[49] The Respondent submits that the statutory, institutional, and social context of child welfare is that the CAS’s primary duty and obligation during investigations is to children: child safety, well-being, and best interests. That is not in dispute. But it further submits that child protection workers, because they are trained in investigative techniques, and the investigative process is purely administrative, are owed deference in determining the appropriate procedures. This is not a sustainable proposition. It is analogous to the proposition that police officers are owed deference in their decisions in conducting a search, or making an arrest, without close scrutiny by a court as to whether the relevant legal standards were complied with.
[50] It is also troubling that the CAS did not make the ICRP process available. This is particularly the case since the Respondent argues that any procedural defects that led to the verification decision were “cured” by what occurred afterwards, which it says amounted to an “appeal or review, akin to the Internal Complaint and Review Panel process”. I do not accept this submission since there was no ICRP process. It is problematic for an administrative decision-maker to circumvent an internal review or appeal process that is supposed to be available by saying “it is unlikely to yield a different result” and then telling the person with the right to the process to proceed to judicial review and that the decision-maker will not argue that the affected individual failed to exhaust his remedies. This approach short-circuits the intended safeguard in the process provided.
[51] It is a well-settled principle of judicial review that a decision that was arrived at unfairly cannot be upheld, regardless of the apparent merits of the decision. This principle was explained by the Supreme Court of Canada in Cardinal v. Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643 (S.C.C.), in which Le Dain J. wrote for the Court, at p. 661:[T]he denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing. [52] Assessed on all the facts in this case, it is apparent that the process followed by the CAS in making the impugned decision was procedurally unfair.
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