Saturday, October 04, 2008
SIU "Toothless Tiger" say Ombudsman
It appears that without a trace of irony the former Director of the SIU, in charge of investigating the officers involved in the death of Edmund Yu, now the Ombudsman of Ontario, released a report on the SIU calling it a "toothless tiger". There's been lots of coverage on the report in the Toronto Star - here is the link to the report: Oversight Unseen.
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The beat goes on, and on, its not just the SIU, but almost every system they have set up as oversight, boards for C.A.S. agencies, not open to the public,
hospital boards, the LHIN boards (member resigns over lack of scrutiny)
The MOE. all of it. we have no voice out here.
This case law is great for lawyers who need to address the lack of accountability in the CAS and in the Child and Family Services Review Board.
It also speaks to the Ministry and the Legislature's intentional decisions not to ensure a proper system of accountability and impartiality.
The Child and Family Services Review Board itself talks about it's own redundancy (direct link at end of foot notes)
[138] As an aside, it is interesting to note that the family of a deceased person in this province has access to an external, independent, adjudicative agency to complain about poor funeral services. However, for families of children in care, the Child & Family Services Act provides an internal complaint procedure. This difference in function may explain why the Board has no explicit powers to issue recommendations.
[139] It bears noting that the Legislature set out the Board’s mandate after considerable debate and consultation concerning the introduction of legislation that would (or would purport to) provide oversight of children’s aid societies in this province. Various proposals were advanced during legislative debates and public hearings.
[140] In particular, the Legislature eschewed an independent investigative model. Under this model, an independent state agency, such as the Ombudsman, would investigate complaints on behalf of one or more complainants. For example, the Ombudsman Act[33] already gives that office the power to compel witnesses, subpoena documents, and to look at individual and system-wide problems affecting many users of provincial services.
[141] The current Ombudsman, André Marin, proposed that the Legislature expand the jurisdiction of his office to permit independent investigative oversight of children’s aid societies in Ontario, as is the case in all other provinces in Canada.[34] A private member’s bill was introduced to this effect but not passed.[35] Nonetheless, hundreds of Ontario residents still complain to the Ombudsman about children’s aid societies, even though he cannot investigate them.[36]
[142] Instead, the Legislature placed the CAS complaints scheme into an adversarial model in which complainants bear the burden of advancing their complaints within the very organization about which they are complaining. The Act’s procedure is adversarial because, within the context of the complaint procedure, the complainants are adverse in interest to the organization against which the complaint is made.
[143] The concept of resolving disputes by means of an “adversarial system” has a powerful appeal in societies whose legal systems are rooted in the common law. The Act’s internal complaint procedure draws on this appeal by treating individual complaints against a CAS as, not matters of public interest and therefore justifying a state-driven process, but as private disputes in need of individual resolution.
[144] Our legal system traditionally resolves private disputes via an adversarial system in which advocates represent individual positions before a neutral person who tries to determine the truth of the case. The internal complaint procedure, however, is not held before a neutral person, and has no mandate to make findings of fact or determinations of truth. Consequently, the Applicants found themselves having to advocate for themselves within a process that had an adversarial “feel” but lacked the other attributes and protections of an adversarial system, such as a neutral third-party or fact-finding upon which they could rely at the end of the procedure. Without those attributes, complainants may feel vulnerable by participating in the complaint procedure. For example, complainants may be involved in an on-going relationship with a CAS and therefore reluctant to “make waves” for fear of retribution.[37]
[145] The Applicants in the present case said as much in their original complaint letter when they wrote about their fear of losing access to their daughter if they complained. At the oral hearing, B.P., co-Applicant, stated (as best I could write it down):
The Executive Director said to us at the start of the ICRP meeting: “Don’t expect any thing to change, but we will take what you say into account.” We found that scary.
How could the Executive Director sit on a panel without trying to protect his workers. The panel should be outside his workers. How can he do an accurate report if he works there and is part of everything?
I’m going into this meeting, I didn’t know what to say. I was scared. We didn’t know what we could talk about. We did what we could.
When we brought our complaints to the ICRP, we hoped they would look at them. I don’t feel we had the chance to show our case. We go into this ICRP meeting, we don’t want to jeopardize the few visits we were having with our daughter. The CAS runs the show. So what do you do?
[146] The Applicants described the complaints process as unfamiliar, daunting, and not impartial. This is not surprising because, as the ICRP name suggests, it provides an internal complaints review by a “captive” complaints body that is created and controlled by the CAS. The Applicants found it disappointing to learn that the ICRP was not the impartial and independent body they had thought it was.
[147] In turn, the Respondent’s Executive Director also spoke of frustration with the process, but for a different reason. He stated as follows (as best I could write it down):
The ICRP process began with hearing the complaints and trying to understand the nature and specificity of them, and to read to you a summary that fairly and accurately represented the outstanding matters in the complaint, as I understood them to be, what you wanted us to take as your concerns. My job was to investigate the concerns brought to us, to review the information we found in the notes, find an answer, and make a judgment call. […]
The CAS asked the family to help the ICRP understand the big, general concerns, to use the complaints process as a problem solving exercise, not a line-by-line analysis of which specific complaints met the criteria exactly. […]
Rather than going point-by-point to rule on the eligibility of each item, we started the ICRP meeting with a general framing of the complaint to help us better understand the general issues to resolve, and the specific issues.
Our approach was to use the meeting as an opportunity to problem solve. We were hearing their information and also asking the family to tell us what they would like us to do, how we could satisfy them … how do we work together in the future to avoid unpleasant experiences. […]
My interest and intent that day was not one of exclusion, but rather to seek themes and areas of concern, and if there was a way to broaden the topic: for example, “communication” versus a single instance of a phone call not returned. I was not looking for things that were ineligible, but looking to see what was eligible. Was there a bigger pattern of difficulty with regard to communication between the parents and the CAS?
[148] When considered in its context, the Executive Director’s approach is not an unreasonable way of approaching the Applicants’ complaints. His stated goal was to improve communication and avoid unpleasant experiences in the future. As reasonable and desirable as that approach may be, it describes a process that is different from independent investigation and oversight.
[149] The fact is that the ICRP process is, from the outset, an internal process to the CAS. The ICRP functions as a kind of CAS customer service department.[38] After filling out what might be called a section 68 comments card, CAS clients get to meet with the agency’s senior staff to discuss their complaints. As complaints processes go, it is still like asking the fox to guard the hen house.
[150] Given this legislative context, what is the role of an independent, quasi-judicial tribunal in reviewing the output of this complaints procedure? Does the availability of review by this Board inject independence and oversight into the overall complaints procedure?
[151] The Board’s role is to conduct reviews, upon request, of whether the Respondent followed the complaints procedure as the statute intended. Therefore, the Board’s review cannot transform the nature or essence of the complaint review into something that the statute does not contemplate it to be.
[152] The Applicants applied to this Board for answers and accountability, not for a variety of complex, technical rulings on jurisdiction or the purview of courts. The Applicants told the Board as much at their hearing. For example, the Applicants took the opportunity to write their own message to the Board on the back of page 1 of their initial application form. It read as follows:
Good morning,
[…] I know there (sic) busy I’m not the only family they deal with however I need answers and accountability. Please call if need more information. My next stop is to seek Mrs. Chambers’ office. God Bless and thank you.
[Signed by Mrs. […] one of the Applicants]
P.S. This is only the Tip of the abuse we have faced.
[153] The Applicants’ original complaint letter of March […], 2007, alleged the Respondent’s workers abused them, and mislead the police and the courts, and that their family was broken up and destroyed as a result. They wanted a “thorough investigation” so that it would be made right for other families and children.[39]
[154] The Board is an independent and impartial quasi-judicial tribunal. In adjudicating applications under sections 68 & 68.1, the Board is perceived by applicants as the public guarantor of independence and credibility in the complaints procedure. However, the Board can only work with the ingredients it is given.
[155] When a tribunal, such as this Board, renders a decision, the public tends to attribute to it the character of a legal verdict. The Board’s stamp of approval in effect launders the Act’s internal and non-neutral complaint procedure through the Board’s quasi-judicial process and thus lends the legitimacy of the Board’s independent and impartial status to the CAS complaints procedure as a whole.
[156] When the reforms to section 68 were introduced in the Legislature, the minister at the time said: “Through Bill 210 and the regulations that will follow, we will strengthen the client complaint mechanism to provide a higher standard of accountability.”[40]
[157] Judy Finlay, the former Chief Advocate of the Office of Child and Family Service Advocacy, stated to the Gouge Public Inquiry[41] that there should be an independent agency to
[…] conduct critical incident and child death reviews that is:
• independent from any ministry of the government, and from any agency or institution responsible for delivering services that could be the subject of a review;
• be composed of a multi-disciplinary team including but not limited to medical experts;
• have investigative powers;
• be accountable to the public and have the authority to make public reports; and
• be provided with adequate funding.
[158] The CAS & ICRP do not meet the first criterion of independence. The Board does not meet the second, third, or fourth criteria. The new Office of the Provincial Advocate for Children and Youth meets the first, but not the third criterion.[42]
[159] Given the newness of the legislative provisions, the absence of appellate court interpretation and guidance, and the fact that the hearings are not recorded or open to public scrutiny, I believe it is important to make the Board’s reasons and differing points of view known through its decisions, which is what I have endeavoured to do through these reasons.
Brian Cohen
Presiding Board Member
Dated at Toronto, Ontario this 13th day of March, 2008.
[1] R.S.O. 1990, c. C11.
[2] Section 9 of O. Reg. 494/06 (the “Regulation”).
[3] This decision was made by a single-member panel of the Board, which did not include any of the three members who sat on the hearing on November 30, 2007. As is its custom, the Board made this determination without notice to the Respondent, and no reasons were given in support of its eligibility decision at this stage.
[4] Section 16 of the Regulation.
[5] Section 17 of the Regulation. The Board calls this Summary a pre-hearing “endorsement” sheet.
[6] Child and Family Services Statute Law Amendment Act, 2006, S.O. 2006, c. 5., [“Bill 210], Section 26.
[7] The Board took the phrase “within the purview of court” from the header to Section 68(12) and used it to mean an issue that has been decided by the Court, is before the Court, or is subject to another decision making process.
[8] Per Section 2(2)(a) of the Act.
[9] Sections 68(5)(3) and s. 68.1(4)(6) of the Act.
[10] The meeting was held on March […], 2007. The meeting Summary was due on April […], 2007. The Respondent sent the Summary on July […], 2007.
[11] Respondent’s Submission in Support of Motion, dated November […], 2007, paras 3 to 11.
[12] It was unclear to the Board what exactly was meant by the use of the word “decision” and whether the decision spoken of referred to the ICRP’s Summary document, or to some other, separate decision by the Respondent. In this case, the ICRP’s Summary document was a letter from the Chair of the ICRP who also signed in his capacity as the Respondent’s Executive Director, and it was hard to see how those were separate.
[13] The Child and Family Services Review Board (the “Board” or “CFSRB”).
[14] Section 68(2), Act.
[15] Section 3, Regulation.
[16] Section 5, Regulation.
[17] Section 7, Regulation.
[18] Section 9, Regulation.
[19] Section 6(1), Regulation.
[20] Sections 6(1) & (2), Regulation
[21] Section 8, Regulation.
[22] Section 9 requires the ICRP to send a Summary with the results of the meeting, including any agreed upon next steps. As a practical matter, it also may list the original complaints, along with the Respondent’s own subjective explanations, from its point of view why it did certain things or made certain decisions. As a summary of a meeting, Summary document is closer to a mediator’s report than a set of reasons or a decision.
[23] As mentioned at footnote #13 in the majority’s decision.
[24] Hereinafter “Baker.”
[25] S.J. v. Toronto Catholic School Board, 2006 CanLII 23951 (ON S.C.D.C.), 2006 CanLII 23951 (ON S.C.D.C.), para 57.
[26] Section 68(4) of the Act.
[27] The HPARB is an independent adjudicative tribunal that reviews decisions from the “Complaints Committees” at the 21 colleges that regulate health professionals in Ontario. The Complaints Committees receive allegations that a particular health professional (e.g. physician, dentist, nurse) has acted unprofessionally. The Complaints Committee then screens the complaints and decides whether to escalate the complaint to formal disciplinary charges, to give a verbal reprimand, or to take no further action. If the Complaints Committee does anything other than escalate the complaint to formal disciplinary charges, either party (usually the patient) may apply to the HPARB to review the Complaints Committee’s decision.
[28] Section 33(1), HPPC.
[29] Section 35(1), HPPC.
[30] See for example, Registrar, Board of Funeral Services v. Schmolinski, 2007 CanLII 48636 (ON S.C.D.C.), 2007 CanLII 48636 (ON S.C.D.C.), para 5, where the Complaints Committee recommended that the funeral home put in place a thorough written policy and procedure for handling personal effects of deceased persons.
[31] R.S.O. 1990, c. F.36.
[32] Section 14(9), Funeral Directors and Establishments Act.
[33] R.S.O. 1990, c. O.6.
[34] The Ombudsman’s Annual Report explains:
In December 2005, the Ombudsman appeared before the Standing Committee examining Bill 210, which amended the Child and Family Services Act. He urged that it be changed to allow the Ombudsman to investigate complaints about CASs. Instead, the amended Act – which came into force on Nov. 30, 2006 – merely broadened the adjudicative authority of the Child and Family Services Review Board. The regulations confirm that complaints about the accuracy of a CAS file or record must go through the CAS’ internal process before being raised with the Board. The Board has paltry remedial power, including steps such as ordering a “note of disagreement” to be added to a complainant’s file, confirming a CAS’ decision, or ordering a CAS to provide written reasons for a decision. Moreover, complaint areas within its jurisdiction are essentially procedural. The type of complaints that may be raised include, for example, that a CAS has failed to respond to a complaint within the required time frame; failed to comply with the complaint review procedure; failed to give a child or parent an opportunity to be represented when decisions affecting their interests are made; or failed to provide reasons for a decision. The Board does not investigate complaints about the conduct of children’s aid societies and there remains no independent external body that can do so.
Source: Ombudsman of Ontario, Annual Report 2006-2007, page 18. www.ombudsman.on.ca.
[35] A Private Member’s Bill to make exactly this change was introduced at 1st Reading: An Act to amend the Ombudsman Act with respect to children’s aid societies, Bill 88, 2nd Session, 38th Legislature, Ontario, 55 Elizabeth II, 5 April 2006. In fact, the new law (i.e. Bill 210) abolished the former “Directors' reviews” and thereby removed what small jurisdiction the Ombudsman of Ontario had previously held under the old law to provide oversight of children’s aid society complaints (see: subsection 68(3) of the former Act).
[36] The Ombudsman received 600 complaints against children’s aid societies in 2007, which is roughly 5 times the number of CAS complaint applications received by this Board. Source: Ombudsman of Ontario, Annual Report 2006-2007, page 14.
[37] The Ombudsman’s Annual Report also referred to concerned letters he had received from CAS clients who spoke of retaliatory actions taken by CAS staff when families had complained: see Annual Report 2006-2007, page 18.
[38] Ironically, some may argue that customers of banks and airlines have rights to a more robust complaint procedure than do clients of an Ontario CAS. For example, see the Financial Consumer Agency of Canada www.fcac- acfc.gc.ca/eng/consumers/Complaints/default.asp and the Ombudsman for Banking Services and Investments www.obsi.ca. Likewise, airline customers have statutory rights to complain to an independent third party about services sought and received: www.cta-otc.gc.ca.
[39] Neither the ICRP nor the Board has power to review complaints for systemic problems affecting other parties or review a situation at its own initiative. Nor can the ICRP hear a complaint brought by people who observe problems at a CAS but who have not sought or received a service from the CAS.
Take, for example, the egregious and well-publicized 2002 case of J.B., who died from septic shock after years of mistreatment by his grandparents. In that case, the local Catholic CAS had removed him and his sister from his parents due to allegations of abuse and placed them with the grandparents who had prior criminal convictions.
The current section 68 complaints procedure came into force five years after J.B.’s death. Ironically, even if it had been in force, it could not have helped J.B. because only “clients” (i.e. parents or children) of a CAS can make a complaint. Although a coroner’s inquest was called, it took J.B.’s death to trigger that. Had J.B. been rescued alive, the coroner would not have had a mandate. J.B., at age six, could not have formulated his own complaint, and his foster grandparents at the time were his perpetrators.
Even his sister, who bore witness to the atrocious indignities he suffered, could not have complained about him because her complaint would have not have been about decisions affecting her interests, as required by section 68.1(4)(5) of the Act.
Likewise, no member of the public could trigger the complaint procedure under section 68 about J.B.’s case, even though section 72 of the Act imposes the duty to report harm to children on a broad group of persons. There is no equivalent provision by which bystanders can access the complaint procedure regarding concerns they have about CAS. Only the CAS’ clients can make complaints, and, as J.B.’s case illustrates, that narrow group of people may never be willing or able to do so.
[40] Hon. Mrs. Chambers, November 1, 2005, Legislative Assembly of Ontario, www.ontla.on.ca/house-proceedings/transcripts/files_html/2005-11-01_L013A.htm#PARA664
[41] Inquiry into Pediatric Forensic Pathology In Ontario, affidavit sworn July 16, 2007, www.goudgeinquiry.ca/pws/pdf/10/application_DCI_Affidavit-Finlay.pdf
[42] Provincial Advocate for Children and Youth Act, 2007, S.O. 2007, c. 9. Section 2 of that Act says that Advocate’s advocacy mandate “does not include conducting investigations.”
http://canlii.org/en/on/oncfsrb/doc/2008/2008cfsrb17/2008cfsrb17.html
The numbers of children in care, with parents who are fighting to get their children back, doing everything that CAS requires, but still not having custody of their children a year later. The retaliation of the Agencies when complaints are made is real. These investigations does not include the parents and CFSRB do nothing about the abuses and when your not satisified, you have to hire a lawyer who legal aid does not provide for, to have a judicial review. We can't afford to hire lawyers. But I know the chidlren are telling the truth. Fear makes you do crazy things and their are too many adults going through the CAS not being properly screened because our chidlren are still being sexually and physically assaulted and no one is protecting them, or listening to them. Is this our future of our children,gov't is making soldiers out of fear and allowing pedophiles and angry people to care for children who are already vulnerable. I lost my children to their abusive father because of my complaints. No one helped me and I went to the Minister D.M. and Ombudsman, Provincial Advocate Agnes Samler, who said to me 'they can not do anything about it either', No recordings of the meetings, same with CFSRB, they don't record any of the hearings either. It has to change in policy, but how, when?
Bill 103 in Legislature attempts to interfere in children and youth's Solicitor Client Privilege. Second reading debate today Thursday Nov 20, 2008. after 1:00pm.
Ontario MPP Andrea Horwath is quite knowlegeable of this matter and has argued diligently against it
The Child Advocate's Office is also watching it and aware.
Clayton Ruby has been informed and has stated to me that he has his eye on it
The Ministry of the Attorney General's Office has been made aware of it
The Law Society of Upper Canada has also been informed
Tell others in the legal community about this serious injustice and potential violation of Solicitor-Client Privilege which could be brought about by Bill 103 as proposed by the Ministry of Children and Youth Services.
Contact your MPP to tell them to argue against these provisions of Bill 103 which are hidden in the middle of the youth Justtice related Bill.
Visit http://www.ontla.on.ca to see Bill 103 as listed under Bills on the left.
well done John.
further, get the child advocate's cover medical errors bunch, out of the hospitals, Until doctors are taught to use Evidence-based medicine, and not " side walk psychobabble" the only truth Charles Smith uttered though the inquest, and do full differential diagnosis, get up to date on SBS,inborn errors, and so much more. and stop calling advocating mothers MSB,understand debunked and disgraced Sir Meadow. and read the Hiterlands of child abuse, that started that off, ( it would not pass the salt today in any medical journal, ) Remember Sally Clarke is very much dead. and so are countless other mothers, and children. Look at how many children have been taken for what they did NOT know, autism spectrum disorders, and its a huge spec.
blamed mothers. The list is long, and any real child advocate would have listened the parents years ago, perhaps if they HAD, we would not have the epidemic in autism we have today.refrigerator mothers???
Do we burn witches. That would be all those wiccans of the day.
Did they forget that all gay adults, was also caused by bad parenting?
Suzan, it was a sad day when SCAN and like teams did not get so much as a mention by Goudge.
Often the reports from them read like once upon a time, and if you read enough of them all you have to do is change the name's of the children. forever at risk of the system, red flags, for all. ( I have read far to many, and wonder how they sleep at night, great creative writing, but something is wrong with people that think all parents are abusers. Perhaps why the entered the profession to begin with, past history!
How ever they seem to miss how this harms the child, many go undiagnoised, and parents are looked at as suspects.
It will not be long before we have another huge injustice, it must begin with the teaching. and stop the over zealous hunting for $ opps child abusers.
Can it be done, can we face the mistakes of the past and really learn from them! taking the Indian out of the child. Not much has changed.
Its not a war on poverty, that could be all of us given the times, save children from poverty, remove them from poor and working poor parents. WHAT a mess.
Bill after bill it only seems to get worse, look at the kinship bill, how many new babys removed right at birth?
In the name of protection. I am sick of all the blame being placed on CAS door steps however, its systems and policy and fail to understand harm, "PICK YOUR SYSTEM".
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