Child and Family Services Review Board
Rules of Procedure


These rules apply to:


Table of Contents

Preamble

I) Social Justice Tribunals Ontario Common Rules

II) Child and Family Services Review Board Specific Rules


Preamble

There are two parts to the Rules of Procedure of the Child and Family Services Review Board. Part I is the Social Justice Tribunals Ontario (SJTO) Common Rules, which also apply in other tribunals within the SJTO. Part II is the Child and Family Services Review Board Specific Rules which apply only within the Child and Family Services Review Board. Both parts should be read together.

I) Social Justice Tribunals Ontario Common Rules


Introduction

Social Justice Tribunals Ontario (SJTO) is a cluster of eight adjudicative tribunals with a mandate to resolve applications and appeals under statutes relating to child and family services oversight, youth justice, human rights, residential tenancies, disability support and other social assistance, special education and victim compensation.

The SJTO is committed to providing quality dispute resolution across the cluster including ensuring that its procedures are transparent and understandable. Identifying common procedures and values across the SJTO and, where appropriate, harmonizing those procedures improves access to justice and fosters consistency in the application of fundamental principles of fairness.

These Common Rules are grounded in the core adjudicative values and principles of the SJTO which govern the work of the cluster. The Common Rules provide a consistent overarching framework of common procedures that will continue to evolve.

How to Use These Rules

  1. The SJTO Common Rules apply to all cases in any SJTO tribunal and form part of the rules and procedures of each tribunal.
  2. For more specific rules please refer to the rules and procedures of:

Part A - Adjudicative Values and Interpretive Principles

Rule A1: Application

The Common Rules apply to the proceedings of the SJTO. The Common Rules form part of the rules of each SJTO tribunal.

Rule A2: Definitions

"rules and procedures" includes rules, practice directions, policies, guidelines and procedural directions;
"tribunal" means any SJTO tribunal or board.

Rule A3: Interpretation

A3.1 The rules and procedures of the tribunal shall be liberally and purposively interpreted and applied to:

  1. promote the fair, just and expeditious resolution of disputes,
  2. allow parties to participate effectively in the process, whether or not they are represented by a lawyer or paralegal,
  3. ensure that procedures, orders and directions are proportionate to the importance and complexity of the issues in the proceeding.

A3.2 Rules and procedures are not to be interpreted in a technical manner.

A3.3 Rules and procedures will be interpreted and applied in a manner consistent with the Human Rights Code.

Rule A4: Tribunal Powers

The tribunal may exercise any of its powers at the request of a party, or on its own initiative, except where otherwise provided.

The tribunal may vary or waive the application of any rule or procedure, on its own initiative or on the request of a party, except where to do so is prohibited by legislation or a specific rule.

Rule A5: Accommodation of Human Rights Code-Related Needs

A5.1 Parties, representatives and witnesses are entitled to accommodation of Human Rights Code-related needs by the tribunal and should notify the tribunal as soon as possible if accommodation is required.

Rule A6: Language

A6.1 Individuals may provide written materials to the tribunal in either English or French.

A6.2 Individuals may participate in tribunal proceedings in English, French, American Sign Language (ASL) or Quebec Sign Language (QSL).

A6.3 A person appearing before the tribunal may use an interpreter. Interpretation services will be provided, upon request, in accordance with tribunal policy.

Rule A7: Courtesy and Respect

A7.1 All persons participating in proceedings before or communicating with the tribunal must act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceeding.

Rule A8: Abuse of Process

A8.1 The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

A8.2 Where the tribunal finds that a person has persistently instituted vexatious proceedings or conducted a proceeding in a vexatious manner, the tribunal may find that person to be a vexatious litigant and dismiss the proceeding as an abuse of process for that reason. It may also require a person found to be a vexatious litigant to obtain permission from the tribunal to commence further proceedings or take further steps in a proceeding.

Rule A9: Representatives

A9.1 Parties may be self-represented, represented by a person licensed by the Law Society of Upper Canada or by an unlicensed person where permitted by the Law Society Act and its regulations and by-laws.

A9.2 Individuals representing a party before a tribunal have duties to both the tribunal and the party they are representing. Representatives must provide contact information to the tribunal and be available to be contacted promptly. Representatives are responsible for conveying tribunal communications and directions to their client. Representatives should be familiar with tribunal rules and procedures, communicate the tribunal's expectations to their client, and provide timely responses to the other parties and the tribunal.

A9.3 Where a representative begins or ceases to act for a client, the representative must immediately advise the tribunal and the other parties in writing, and provide up-to-date contact information for the party and any new representative. Where a representative ceases to act for a client the tribunal may issue directions to ensure fairness to all parties and to prevent undue delay of proceedings.

A9.4 The tribunal may disqualify a representative from appearing before it where the representative's continued appearance would lead to an abuse of process.

Rule A10: Litigation Guardians

A10.1 This Rule applies where a person seeks to be named by the tribunal as a litigation guardian for a party. It does not apply where no litigation guardian is required as a result of the nature of the proceeding.

A10.2 Persons are presumed to have the mental capacity to manage and conduct their case and to appoint and instruct a representative.

Litigation Guardian Declarations

A10.3 A litigation guardian for a minor under the age of 18 is required to file a signed declaration in the form designated by the tribunal, confirming:

  1. the litigation guardian's consent to serve in this role;
  2. the minor's date of birth;
  3. the nature of the relationship to the minor;
  4. that any other person with custody or legal guardianship of the minor has been provided with a copy of the materials in the proceeding and a copy of the SJTO practice direction on litigation guardians;
  5. that the litigation guardian has no interest that conflicts with those of the person represented;
  6. an undertaking to act in accordance with the responsibilities of a litigation guardian as set out in Rule A10.8; and
  7. that the litigation guardian is at least 18 years of age and understands the nature of the proceeding.

A10.4 A litigation guardian for a person who lacks mental capacity to participate in the tribunal proceeding must file a signed declaration in the form designated by the tribunal, confirming:

  1. the litigation guardian's consent to serve in this role;
  2. the nature of the litigation guardian's relationship to the person represented;
  3. reasons for believing that the person is not mentally capable of participating in the proceeding;
  4. the nature and extent of the disability causing the mental incapacity;
  5. that no other person has authority to be the person's litigation guardian in the proceeding;
  6. that any person who holds power of attorney or guardianship for the person for other matters has been provided with a copy of the materials in the proceeding and a copy of the SJTO practice direction on litigation guardians;
  7. that the litigation guardian has no interest that conflicts with the interests of the person represented;
  8. an undertaking to act in accordance with the responsibilities of a litigation guardian as set out in Rule A10.8; and
  9. that the litigation guardian is at least 18 years of age and understands the nature of the proceeding.

Naming and Removing a Litigation Guardian

A10.5 Upon the filing of a complete declaration as required by this Rule and unless refused or removed by the Tribunal, the person may act as litigation guardian for the party.

A10.6 The Tribunal will review the declaration and may direct submissions by the parties on whether the litigation guardian should be refused pursuant to Rule A10.7.

A10.7 Upon review of the declaration, or at any later time in the proceeding, the Tribunal may refuse or remove a litigation guardian on its own initiative or at the request of any person because:

  1. the litigation guardian has an interest that conflicts with the interests of the person represented;
  2. the appointment conflicts with the substitute decision making authority of another person;
  3. the person has capacity to conduct or continue the proceeding;
  4. the litigation guardian is unable or unwilling to continue in this role;
  5. a more appropriate person seeks to be litigation guardian; or
  6. no litigation guardian is needed to conduct the proceeding.

Responsibilities of Litigation Guardians

A10.8 A litigation guardian shall diligently attend to the interests of the person represented and shall take all steps necessary for the protection of those interests including:

  1. to the extent possible, informing and consulting with the person represented about the proceedings;
  2. considering the impact of the proceeding on the person represented;
  3. deciding whether to retain a representative and providing instructions to the representative; and
  4. assisting in gathering evidence to support the proceeding and putting forward the best possible case to the tribunal.

A10.9 No one may be compensated for serving as a litigation guardian unless provided for by law or a pre-existing agreement.

A10.10 When a minor who was represented by a litigation guardian turns 18, the role of the litigation guardian will automatically end.

II) Child and Family Services Review Board Specific Rules


Definitions

Part I: General Rules

1. These Rules are made pursuant to s. 25.1 of the SPPA. Rules relating to sections 68(5) and 68.1(1) of the CFSA, are made in accordance with O.Reg.494/06 as amended.

2. These Rules apply to applications for:

2.1 These Rules also apply to an appeal of a school board decision to expel a pupil under section 311.7 of the Education Act.

2.2 The Rules in this Part apply to all proceedings before the Board unless a specific Rule provides otherwise. Because of the expedited nature of ESTA applications, Rules 9, 15 and 19 do not apply to those proceedings.

3. Members of the Board, sitting alone or in a panel of up to three members, may exercise the powers provided under the CFSA, the Education Act, and Regulations, in accordance with these Rules.

4. Removed and replaced. Please see SJTO Common Rules.

5. The Board controls its own processes and may issue practice directions as it sees fit.

6. Removed and replaced. Please see SJTO Common Rules.

7. The Rules may be amended by the Board from time to time.

8. Removed and replaced. Please see SJTO Common Rules.

Time

9. Where a Rule or an order of the Board refers to a period of time, it will be calculated as follows:

  1. when calculating the number of days between two events, the day on which the first event happens is not counted. The day on which the second event happens is counted;
  2. when the time period is less than seven days, holidays are not counted;
  3. when time expires on a holiday, the act may be done on the next day that is not a holiday;
  4. where a document is received or delivered on a holiday, it shall be deemed to have been received or delivered on the next day that is not a holiday;
  5. a document filed with the Board after 5:00 pm shall be deemed to have been filed on the next day which is not a holiday.

Filing of Documents

10. The filing of an application, appeal or of a document is done by mail or by facsimile.

11. The Board may, upon request, extend the time for filing an application, appeal or a document in exceptional circumstances. A motion for an extension of time must provide reasons for such a request.

Delivery of Documents

12. Documents may be delivered:

  1. by personal delivery to the person or the person's representative in the proceedings;
  2. by regular or registered mail to the last known address of the person or their representative in the proceeding;
  3. by facsimile to the last known fax number of the person or their representative in the proceeding; or
  4. by courier to the last known address of the person or the person's representative in the proceedings.

13. Delivery of a document is deemed to occur:

  1. if delivered personally, on the day that it is delivered;
  2. if sent by regular or registered mail, on the fifth day after it is mailed;
  3. if sent by facsimile, on the next day after it is faxed, unless that day is a holiday, in which case, it is deemed to have been received on the next day that is not a holiday; or,
  4. if sent by courier, on the day after the courier picks it up for delivery.

Motions

14. A motion may be made by a party to the proceeding or by a person with an interest in the proceeding.

15. A motion must be filed at the earliest possible date with the Board, but no later than two days before the hearing. The motion must be delivered to all parties before being filed with the Board.

16. A motion may be made at the commencement of the hearing with an explanation as to why it was not done prior to the hearing.

17. The motion may be brought in any form, but it must adequately set out the facts and the grounds relevant to the motion and the relief requested.

18. The Board may direct the procedure to be followed for dealing with a motion and set applicable time limits. The Board may direct that the motion will be dealt with in writing or by any other means.

Disclosure

19. Unless otherwise decided at a pre-hearing conference, any evidence a party wishes to submit during the hearing shall be disclosed to the parties and the Board no later than ten days prior to the hearing.

20. A party that does not provide evidence as required by Rule 19 may not use the evidence at the hearing unless allowed by the Board.

20.1 Where it considers appropriate at any stage of a proceeding, the Board may order a party to disclose documents, witness statements, reports of expert witnesses, or to provide further particulars and may issue directions respecting the use of personal information contained in the documents disclosed.

Pre-Hearing Conference

21. The purpose of a pre-hearing conference is to:

  1. identify and simplify some or all of the issues;
  2. identify facts or evidence that may be agreed upon by the parties;
  3. estimate the duration of the hearing;
  4. identify the witnesses to be called at the hearing;
  5. identify the form of the hearing;
  6. identify the evidence to be adduced at the hearing;
  7. consider any other matter that may assist in the just and most expeditious disposition of the proceeding.

22. At the conclusion of a pre-hearing conference, the member of the Board who presides at a pre-hearing conference may make such orders as are considered necessary or advisable with respect to the conduct of the proceeding.

23. Any rulings made by the member at a pre-hearing conference shall be recorded in writing on the pre-hearing report, which becomes part of the record.

24. Evidence or argument heard at a pre-hearing conference is not considered part of the hearing unless it is recorded on the pre-hearing report.

Hearings

25. The Board may conduct hearings orally, in writing, or electronically by teleconference or video-conference. In deciding the format of a hearing, the Board will consider:

  1. whether it is a fair and accessible process for the parties;
  2. the costs and efficiency of the process;
  3. the potential for a more expeditious resolution;
  4. the convenience of the parties;
  5. the consistency with the Board's mandate;
  6. whether facts or evidence may be agreed upon;
  7. the estimated duration of the hearing;
  8. whether the issues for hearing are predominantly legal issues;
  9. whether oral testimony is likely to be needed;
  10. any objections to the format of the hearing.

26. The Board may conduct a combination of written, oral or electronic hearings in a proceeding.

Withdrawal of Application

27. An applicant who does not want to continue with an application may withdraw an application by filing a Withdrawal of Application using Form 1 or Form 7 as appropriate.

28. The Board shall notify all the parties that the application has been withdrawn.

Hearings Conducted in Private

29. Due to the nature of the proceedings, hearings and pre-hearings are to be held in private.

30. A party or a member of the public may bring a motion to have a hearing held in public. The Board will not consider a request to open an ESTA hearing to the public.

30.1 Subject to an order of the Court or the Board, parties and their representatives shall not use documents or information obtained under these Rules or in the course of the Board's proceedings for any purpose other than the proceeding before the Board.

30.2 All Board decisions are subject to a confidentiality order and may also contain information subject to s.45(8) of the CFSA. The Board produces a redacted version of its decisions. No one shall circulate, reproduce, communicate or publish any information contained in or obtained from an unredacted decision of the Board without first obtaining an order of the Board or the Court.

Interpreters

31. If a party or a party's witness requires an interpreter in a language other than the language of the hearing, the party shall notify the Board. This notification shall occur at the time an application is made or at the earliest possible opportunity thereafter.

32. The Board, at its expense, will provide for an interpreter to ensure the proper conduct of the hearing.

33. Any documents filed are to be in the language of the hearing or accompanied by a certified translation.

Jurisdiction over Implementation

34. The Board may, in appropriate cases, remain seized over the implementation of its decision.

Notice of Constitutional Question

35. A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question which includes:

  1. the name of the parties;
  2. the file number;
  3. the date, time and place of the scheduled hearing;
  4. the specific legislative provision that is being challenged;
  5. the relevant facts relied on to support the constitutional challenge;
  6. a summary of the legal argument to be made in support of the constitutional challenge.

36. The party must deliver a copy of the notice to the parties, to the Attorneys General of Canada and Ontario and deliver the notice to the Board at least 15 days before the question is to be argued.

37. The party must provide the original notice to the Board, together with a written statement of how and when a copy of the notice was delivered to the parties and to the Attorneys General.

Part II: Application for a Review of a Proposed Removal of a Crown Ward under section 61(7.1) of the CFSA.

Parties

38. The following persons are parties to an application for review under section 61(7.1) of the CFSA:

  1. the applicant foster parent;
  2. the Society;
  3. if a child is an Indian or a native person, a representative chosen by the child's band or native community;
  4. any other person the Board determines is necessary to decide all of the issues in the review.

Application

39. The application for review must be filed with the Board, by mail or facsimile, within 10 days after receiving a notice of the proposed removal from the Society by completing the Application for Review of Removal of Crown Ward (Form 2).

40. Upon receipt of the application, the Board shall send the application to:

  1. the Society named in the application; and
  2. if the child is an Indian or a Native person, to the representative chosen by the child's band or native community.

Eligibility

41. To be eligible for review the application must meet the following criteria:

  1. the applicant must be the Crown Ward's foster parent; and
  2. the Crown Ward must have been in the care of the foster parent for a continuous period of at least two years.

42. Within seven days of receipt, the Board shall determine whether the application is eligible for review and will provide its written decision on eligibility to the applicant. If the application is eligible for review, the Board will send the decision to the parties together with a Notice of Hearing containing the date, time and place of the hearing.

43. The decision on eligibility is deemed to have been received by the applicant:

  1. if sent by mail, on the fifth day after it is mailed;
  2. if sent by facsimile, on the next day after it is faxed, unless that day is a holiday, in which case, it is deemed to have been received on the next day that is not a holiday.

Hearing

44. The Board shall hold a hearing within 20 days of the day the applicant is deemed to have received the Board's eligibility decision.

45. On reviewing the Society's decision, the Board must decide what action is in the best interests of the child and based on its determination, either confirm the Society's proposal to remove the child or direct the society not to carry out the proposed removal.

46. At the hearing before the Board, the Society will present its case first.

Decision

47. The Board, following conclusion of a hearing, shall provide each party and their representatives with a copy of the Board's decision, including written reasons for the decision, within 10 days.

PART III: Application for a Review or a Hearing of a Complaint Against a Children's Aid Society under sections 68(5) or 68.1(1) of the CFSA.

Parties

48. The following are parties to an application under sections 68(5) and 68.1(1):

  1. the person who sought or received a service from the Society;
  2. the Society that provides the service.

Application

49. The complete application for review (Form 3) must be filed with the Board by mail or facsimile.

50. An application for review of a final decision of an ICRP will not be considered complete unless the ICRP decision is attached.

51. The Board will send the complete application to the Society.

52. An application for review may be filed directly to the Board with the exception of complaints about an inaccuracy in files and records which must first be made to the Society and dealt with by an ICRP before an application can be made to the Board.

Eligibility

53. An application made pursuant to s.68(5) or s.68.1(1) must contain relevant details in support of allegations that the Society:

  1. refused to proceed with a complaint made under s. 68(1);
  2. failed to respond to the complainant's complaint within the time required by the regulation;
  3. failed to comply with the complaint review procedure or with any other procedural requirements under the CFSA relating to the review of complaints;
  4. failed to ensure children and their parents had an opportunity, where appropriate, to be heard and represented when decisions affecting their interests are made, and to be heard when they have concerns about the services they are receiving in accordance with ss. 2 (2)(a); and/or,
  5. failed to provide reasons for a decision that affects the applicant's interests.

54. An application which arises out of a complaint about an alleged inaccuracy in the Society's files or records must:

  1. clearly identify the alleged inaccuracy;
  2. confirm that the ICRP is complete; and,
  3. attach the ICRP decision or provide reasons why the ICRP decision is not provided.

55. Within seven days of receiving a complete application the Board shall determine whether it is eligible for review.

56. The decision on eligibility will be sent to the parties. Where the Board finds the application is not eligible for review it will provide written reasons for its decision.

Response

57. Within ten days of receiving the decision on eligibility the Society must deliver its response to the applicant and file it with the Board by mail or facsimile. The response must include:

  1. a response to the allegations made in the application;
  2. a brief chronology of the Society's interactions with the applicant during the times relevant to the issues raised in the application;
  3. copies of any documents relevant to the issues raised in the application; and,
  4. any additional facts, issues or allegations on which the Society relies.

58. Where the Society takes the position that the Board cannot conduct a review because the subject of the application:

  1. is an issue that has been decided by the court or is before the court; or,
  2. is subject to another decision-making process under the CFSA or the Labour Relations Act, 1995.

the Society shall provide submissions in support of its position and attach all relevant documents and any court orders to the response.

59. Removed.

Written Review or Notice of Hearing

60. Within 20 days of its decision on eligibility, the Board will:

  1. make its decision based on the application and the response; or,
  2. issue a notice that a hearing may be held and provide notice of the date, time and location of the pre-hearing conference.

Pre-Hearing Conference

61. The Board will hold a pre-hearing conference in every application which may proceed to a hearing and may exercise its discretion to hold more than one pre-hearing conference.

61.1 The first pre-hearing conference shall be scheduled as soon as possible and, in any event, no later than 40 days after the date of the decision on eligibility.

61.2 Provided all parties can hear each other, a pre-hearing conference may be held electronically unless a party satisfies the Board that proceeding electronically would cause significant prejudice.

61.3 The member conducting a pre-hearing conference may give directions to the parties to assist the just and expeditious disposition of the application.

62. In addition to the parties and their representatives, the member may permit the following persons to attend a pre-hearing conference:

  1. a representative of the applicant's band or native community, where appropriate; and,
  2. a support person of the applicant's choosing.

63. At a pre-hearing conference the member will ask the parties to consider settlement of some or all of the issues in dispute.

64. If the parties are not prepared to consider settlement or are unable to settle, the pre-hearing conference will proceed and the member will assist the parties to prepare for the hearing and may make orders or directions to support the just and expeditious disposition of the application including:

  1. identifying and simplifying the issues;
  2. identifying facts or evidence on which they agree;
  3. identifying the available remedies;
  4. setting dates for any steps in the proceeding; and.
  5. identifying the amount of hearing time required.

65. No later than ten days after the pre-hearing conference or the final pre-hearing conference, the Board will issue its pre-hearing report which will:

  1. confirm the application is resolved on consent; or,
  2. provide notice of the date, time and place of the hearing; and
  3. record all orders and directions made at the pre-hearing conference(s).

66. The member who conducted a pre-hearing conference where settlement was discussed shall not hear the application unless the parties consent in writing but may give orders or directions in the pre-hearing report.

Hearing

67. The hearing will begin within 60 days after the date of the decision on eligibility.

67.1 The hearing may proceed in person, by telephone or other form of electronic technology, in writing or by any combination of those forms as the Board considers appropriate unless a party satisfies the Board that there is good reason not to proceed in writing or that proceeding by telephone or other electronic technology will cause significant prejudice.

68. In addition to the parties and their representatives, the Board may permit the following persons to attend the hearing:

  1. where appropriate, a representative of the applicant's band or native community;
  2. a support person of the applicant's choosing.

68.1 In order to provide for the just and expeditious disposition of the application, at the hearing the Board may exercise its discretion to:

  1. define and narrow the issues in order to decide the application;
  2. determine and direct the order in which issues in an application, including issues which a party considers to be preliminary, will be considered;
  3. determine and direct the order in which the evidence will be presented; and,
  4. limit the evidence or submissions on any issue.

69. The Society may ask the Board to dismiss an application made pursuant to s.68.1 or to confirm the Society's decision in an application made pursuant to s.68(5).

69.1 The applicant may ask the Board to order the Society to:

  1. proceed with the complaint in accordance with the complaint review procedure established by regulation;
  2. provide a written response to the applicant within a period specified by the Board;
  3. comply with the complaint review procedure established by regulation or with any other requirements under the CFSA; or,
  4. provide written reasons for a decision to the applicant.

70. On an application to review a final decision of an ICRP the applicant may also ask that the Board remit the matter to the Society for further review or order the Society to attach a notice of disagreement to the applicant's file.

71. Removed.

Decision

72. The Board shall provide its written reasons for decision to the parties within 30 days after the conclusion of the hearing.

Power to Vary Time

72.1 The time for doing anything contained in Rules 55-72 may be varied if, in the Board's opinion, this is necessary or advisable for the just and expeditious disposition of an application.

PART IV: Application for a Review of a Decision to Refuse to Place a Child for Adoption or a Decision to Remove a Child after Placement for Adoption under section 144(3) of the CFSA.

Parties

73. The following persons are parties to an application for review under section 144(3) of the CFSA:

  1. the applicant;
  2. the Society or Licensee;
  3. if a child is an Indian or a native person, a representative chosen by the child's and or native community;
  4. any other person the Board determines is necessary to decide all of the issues in the review.

Application

74. The application for review must be filed with the Board, by mail or facsimile, within 10 days after receiving a notice of the decision to refuse to place a child or of the decision to remove a child after placement by completing the Application for Review of Refusal of Adoption (Form 4).

75. Upon receipt, the Board will send the application to:

  1. the Society or Licensee named in the application; and,
  2. if the child is an Indian or a Native person, to the representative chosen by the child's band or native community.

Eligibility

76. To be eligible for review, the application must be filed by the person(s) to whom the notice of the Society's or Licensee's decision was addressed.

77. Within seven days of receipt of the application, the Board shall determine whether the application is eligible for review and will provide its written decision on eligibility to the applicant. If the application is eligible for review, the decision will be sent to the parties together with a Notice of Hearing which will provide the date, place and time of the hearing.

78. The decision on eligibility is deemed to have been received by the applicant:

  1. if sent by mail, on the fifth day after it is mailed;
  2. if sent by facsimile, on the next day after it is faxed, unless that day is a holiday, in which case, it is deemed to have been received on the next day that is not a holiday.

Hearing

79. The Board shall hold a hearing within 20 days of the day the applicant is deemed to have received the Board's eligibility decision.

80. On reviewing the Society or Licensee's decision, the Board must decide what action is in the best interests of the child and based on its determination, either confirm or rescind the decision under review.

81. At the hearing before the Board, the Society or Licensee will present its case first.

Decision

82. The Board shall provide each party and their representatives with a copy of the Board's decision, including its written reasons for the decision, within 10 days of completing the hearing.

PART V: Appeal of a School Board Expulsion Decision under section 311.7 of the Education Act.

Time

83. For the purposes of calculating the time to appeal a school board expulsion decision and for delivering documents in an appeal under these Rules, “holiday” also includes any school holiday.

Parties

84. The following persons may appeal a school board's expulsion decision, whether the pupil is expelled from his or her school only or from all schools of the school board:

  1. the pupil's parent or guardian, unless the pupil is at least 18 years old or is 16 or 17 years old and has withdrawn from parental control;
  2. the pupil, if he or she is at least 18 years old,
  3. the pupil, if he or she is 16 or 17 years old and has withdrawn from parental control;
  4. such other person as may be designated by the Board.

85. The following are parties to the appeal:

  1. the school board;
  2. the pupil, if the pupil is at least 18 years old or is 16 or 17 years old and has withdrawn from parental control;
  3. the pupil's parent or guardian, if the parent or guardian appealed the school board expulsion decision;
  4. the person who appealed the school board expulsion decision, if the decision was appealed by a person other than the pupil or the pupil's parent or guardian.

Appeal

86. The complete appeal (Form 5) must be filed with the Board, by mail or facsimile within 30 days after receiving notice of the school board's decision. The appeal must attach the school board expulsion decision and the response to the principal's report recommending expulsion, if any.

87. Notice of the school board's decision is deemed to have been received by the appellant pursuant to the following rules:

  1. if sent by mail or another method in which the original notice of decision is sent, it is deemed have been received by the person to whom it was sent on the fifth school day after the day on which it was sent;
  2. if sent by fax or another method of electronic transmission, the notice of decision shall be considered to have been received by the person to whom it was sent on the first school day after the day on which it was sent.

88. The Board may extend the time for filing the appeal, before or after the expiry of the 30 day period in Rule 86, if it is satisfied that there are reasonable grounds for the extension, as required under the regulations.

89. Upon receipt, the Board shall send the appeal to the responding school board. The school board shall file the principal's report recommending expulsion with the Board as soon as possible and in any event within two days of receiving the appeal.

Hearing

90. The Board shall commence a hearing within 30 days after receiving the appeal.

91. The Board may extend the period of time for commencing the hearing, before or after the expiry of the thirty day time period, at the request of any party to the appeal

92. The appeal is a new (de novo) hearing where the Board must decide whether to:

  1. confirm the school board's expulsion decision;
  2. if the school board's decision was to expel the pupil from his or her school only, quash the expulsion decision and reinstate the pupil to the school;
  3. if the school board's decision was to expel the pupil from all schools of the school board:
    1. change the expulsion decision to an expulsion from the pupil's school only; or,
    2. quash the expulsion and reinstate the pupil to his or her school; or
  4. order any record of the expulsion be expunged or amended.

In making this decision, the Board will consider mitigating and other factors.

93. At the hearing before the Board, the school board will present its case first.

94. A pupil whose expulsion is being appealed has the right to be present at the hearing and to make a statement on his or her behalf, whether or not the pupil is a party to the appeal.

Decision

95. The Board shall provide each party and their representatives with its decision on the appeal within 10 days of completing the hearing.

96. The Board shall provide each party and their representatives with written reasons for its decision within 30 days of completing the hearing.

PART VI: Application for Review of an Emergency Admission to a Secure Treatment Program under section 124(9) of the CFSA (ESTA)

Parties

97. Any person, including the child, may apply to the Board for a review of an emergency admission to a secure treatment program.

98. The following persons are parties to an ESTA application:

  1. the child;
  2. the applicant;
  3. the Centre responsible for the secure treatment program from which the child seeks a release; and,
  4. any other person the Board determines is necessary to decide all of the issues in the application.

Application

99. The application must be completed using Form 6.

100. The completed application must be delivered to the Centre and filed with the Board by courier or facsimile.

101. Where the child is less than 12 years old, the Centre, as soon as informed of the application, must provide the Board with a copy of the Minister's consent to the child's admission.

Notice and Scheduling

102. The Centre shall make all reasonable efforts to send a copy of the application by same day or overnight courier or by facsimile to the parent of the child, the person who is caring for the child with the parent's consent or the Children's Aid Society that has legal care or custody of the child.

103. Where the applicant is not the child, the Board shall, upon receipt of the application, notify the Office of the Children's Lawyer.

103.1 The Board must hear and decide the application within five days of its receipt.

103.2 Upon receipt of the application the Centre will inform the Board of its psychiatrist's availability to testify and the Board will take this information into account when scheduling the hearing.

Withdrawal

104. Withdrawal of an application must be completed using Form 7.

Disclosure

105. Parties must disclose any documentary evidence and a list of their proposed witnesses to all parties and file this with the Board no later than 2:00 p.m. the day before the hearing.

Hearing

106. The Board must hold an oral hearing on an application unless the child consents to an order remaining in the secure treatment program. The Board may require oral evidence when this consent has been given.

107. The child is entitled to be present at the hearing unless,

  1. the Board is satisfied that being present at the hearing would cause the child emotional harm; or,
  2. the child, after obtaining legal advice, consents in writing to holding the hearing in his or her absence.

108. The Board may require a child who has consented to the holding of a hearing in his or her absence under Rule 107(b) to be present at all or part of the hearing.

109. Two persons from the secure treatment program, including the individual instructing counsel, may be present throughout the hearing.

110. The Centre will present its evidence first.

Decision

111. The Board shall dispose of the application within five days of the Board's receipt of the application. The Board shall provide written reasons for its decision within 10 days of its order disposing of the application.

112. The Board shall make an order releasing the child from the secure treatment program unless the Board is satisfied that the child meets the criteria for emergency admission set out in clauses 124(2)(a) to (e) of the CFSA.

PART VII: Application for a Review of a Residential Placement under section 36(1) of the CFSA

Parties

113. The following persons are parties to an application for a review under section 36(1) of the CFSA:

  1. the child who made the application;
  2. the child's parent or where the child is in a Society's lawful custody, the Society;
  3. where the child is an Indian or native person, a representative chosen by the child's band or native community, and
  4. any other person the Board specifies.

Application

114. Any child who is twelve years of age or older may apply for a review of his or her residential placement if the placement has been reviewed by an advisory committee as prescribed by section 34 of the CFSA ("RPAC").

115. An application for a review may be made when:

  1. the applicant is dissatisfied with the advisory committee's recommendation; or,
  2. if the advisory committee's recommendation is not followed.

116. The application (Form 8) may be made by telephone, fax or mail.

117. Upon receipt of the application, the Board will forward a copy to the other parties. With the consent of the applicant, notice of the application will be sent to the office of the Provincial Advocate for Children and Youth.

Response

118. Within seven days of receipt of the application, the Society, where it is the respondent, shall deliver to the Board and the other parties, its response to the application which includes:

  1. the RPAC report;
  2. its position on the existing placement and the reasons for that position; and,
  3. a summary of alternative placements, an explanation as to whether or not they are appropriate to meet the applicant's needs and if so, whether they are currently available for the applicant.

Hearing

119. The Board will inform the applicant within 10 days of receipt of the application whether or not it will hold a hearing.

120. Any evidence a party wishes to submit during the hearing shall be disclosed to all parties no later than 10 days before the hearing, with a copy to the Board.

Time

121. The Board shall complete its review and make a determination within thirty days of the Board's receipt of the application.

122. The Board may exceed the thirty day period to complete its review and to make its determination if a hearing is held and if the parties agree to a longer period.

Decision

123. The Board may:

  1. order that the applicant be transferred to another residential placement if the Board is satisfied that the other residential placement is available,
  2. order that the applicant be discharged from the residential placement; or,
  3. confirm the existing placement.

Withdrawal

124. An applicant may withdraw his or her application. The Board will confirm the withdrawal in writing to the applicant and the other parties.

Forms

Form 1: Withdrawal of Application

Form 2: Application for Removal of a Crown Ward

Form 3: Application for Review or Hearing of a Complaint against a Children's Aid Society

Form 4: Application for Refusal of Adoption

Form 5: Appeal of a School Board Expulsion Decision

Form 6: Application for Review of an Emergency Admission to a Secure Treatment Program (ESTA)

Form 7: Withdrawal of ESTA Application

Form 8: Application for Review of a Residential Placement

Form 9: Litigation Guardian: Mental Incapacity




Effective as of October 24, 2017
sjto.ca/cfsrb