Rules of Procedure


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

A4.1 The tribunal may exercise any of its powers at the request of a party, or on its own initiative, except where otherwise provided.

A4.2 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 Ontario 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

1.1 These Rules are made pursuant to section 25.1 of the SPPA and O.Reg.494/06.

1.2 These Rules apply to applications made under the CYFSA, 2017 for:

  1. review of a proposed removal of a child in extended society care from a foster home;
  2. review or hearing of a complaint against a society;
  3. review of a decision to refuse to place a child for adoption or to remove a child after placement for adoption;
  4. review of an emergency admission to a secure treatment program;
  5. review of a residential placement.

1.3 These Rules also apply to an appeal of a school board expulsion decision under the Education Act.

1.4 These Rules apply to all proceedings before the CFSRB unless a specific rule provides otherwise. Because of its expedited nature, Rules 2.1, 5.2 and 6.1 do not apply to an ESTA proceeding.

1.5 Members of the CFSRB, sitting alone or in a panel of up to 3 members, may exercise the powers provided under the CYFSA, 2017, the Education Act and Regulations in accordance with these Rules.

1.6 The CFSRB controls its own processes and may issue practice directions as it sees fit.

1.7 These Rules may be amended by the CFSRB from time to time.

Time

2.1 Where a rule or an order of the CFSRB 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 7 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 considered received or delivered on the next day that is not a holiday;
  5. a document filed with the CFSRB after 5:00 pm will be considered as filed on the next day which is not a holiday.

Filing of Documents

3.1 Documents, including an application or an appeal, may be filed in person, by mail, fax or email.

3.2 The CFSRB may consider a request to extend the time for filing any document where there are exceptional circumstances. A request to extend time must provide reasons for the request.

3.3 Copies of all documents filed with the CFSRB which relate to an appeal or application will be shared with the parties to the application or appeal.

Delivery of Documents

4.1 Documents may be delivered:

  1. in person to the person or the person's representative in the proceeding;
  2. by regular or registered mail to the last known address of the person or the person's representative in the proceeding;
  3. by fax to the last known fax number of the person or their representative in the proceeding;
  4. by courier to the last known address of the person or the person's representative in the proceeding;
  5. by email if the person receiving it has consented to service by email.

4.2 A document is considered delivered:

  1. if delivered in person 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 fax, on the next day after it is faxed, unless that day is a holiday, in which case, it is considered to have been received on the next day that is not a holiday;
  4. if sent by courier, on the day after the courier picks it up for delivery;
  5. if sent by email, on the day that it is sent.

Motions

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

5.2 A motion must be filed as soon as possible, but no later than two days before the hearing. The motion must be delivered to all parties before being filed with the CFSRB.

5.3 A motion may be made at the beginning of the hearing with an explanation for why it was not made prior to the hearing.

5.4 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.

5.5 The CFSRB may direct the procedure for dealing with a motion and set time limits. The CFSRB may direct that the motion will be dealt with in writing or by any other means.

Disclosure

6.1 Unless otherwise decided at a pre-hearing, any evidence a party wishes to submit during the hearing must be disclosed to the parties and the CFSRB no later than 10 days prior to the hearing. A party that does not provide evidence as required by the Rules may not use the evidence at the hearing unless allowed by the CFSRB.

6.2 Where it considers appropriate at any stage of a proceeding, the CFSRB 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

7.1 The purpose of a pre-hearing 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.

7.2 At the conclusion of a pre-hearing, the member of the CFSRB who conducts the pre-hearing may make such orders as are considered necessary or advisable with respect to the conduct of the proceeding.

7.3 Any rulings made at a pre-hearing shall be recorded in writing in the Pre-Hearing Report, which becomes part of the record.

7.4 Evidence or argument heard at a pre-hearing is not considered part of the hearing unless it is recorded in the Pre-Hearing Report.

Hearings

8.1 The CFSRB may conduct hearings orally, in writing, or electronically by teleconference or video-conference. In deciding the format of a hearing, the CFSRB 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 CFSRB'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.

8.2 The CFSRB may conduct a combination of written, oral or electronic hearings in a proceeding.

Hearings Conducted in Private

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

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

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

9.4 All CFSRB decisions are subject to a confidentiality order and may also contain information subject to section 87(8) of the CYFSA, 2017. The CFSRB publishes 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 CFSRB without first obtaining an order of the CFSRB or the Court.

Implementation of Orders

10.1 The CFSRB may, in appropriate cases, remain seized over the implementation of its orders.

Notice of Constitutional Question

11.1 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.

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

11.3 The party must file the original notice with the CFSRB, together with a written statement of how and when notice was delivered to the parties and to the Attorneys General, at least 15 days before the question is to be argued.

Withdrawal of Application

12.1 An application, other than an ESTA, may be withdrawn by providing written notice to the CFSRB using Form 9.

Part II: Application for Review of a Proposed Removal of a Child in Extended Society Care from a Foster Home under Section 109 of the CYFSA, 2017

Parties

13.1 The parties to the application are:

  1. the foster parent;
  2. the society;
  3. if the child is First Nations, Inuk or Métis, a representative chosen by each of the child's bands, First Nations, Inuit or Métis communities;
  4. any other person the CFSRB determines is necessary to decide all of the issues in the review.

Application

14.1 The Application about the Proposed Removal of a Child from a Foster Home must be filed with the CFSRB using Form 1 within 10 days after receiving notice of the proposed removal from the society.

14.2 The CFSRB will send the application to:

  1. the society;
  2. if the child is First Nations, Inuk or Métis, to the representative chosen by the child's bands, First Nations, Inuit or Métis communities.

Eligibility

15.1 To be eligible for review:

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

15.2 Within 7 days of receipt of the application, the CFSRB will determine whether the application is eligible for review and will provide its eligibility decision to the parties. Where the CFSRB finds the application is not eligible for review, it will provide written reasons for its decision.

15.3 If the application is eligible for review, the CFSRB will send the decision to the parties together with a Notice of Hearing which will provide the date, time and location of the hearing.

15.4 The decision on eligibility is considered received:

  1. if sent by mail, on the fifth day after it is mailed;
  2. if sent by fax, on the next day after it is faxed, unless that day is a holiday, in which case, it is considered received on the next day that is not a holiday;
  3. if sent by email, on the day it is sent.

Hearing

16.1 The CFSRB must hold a hearing within 20 days of the day the applicant is considered to have received the eligibility decision.

16.2 The CFSRB must decide what action is in the best interests of the child and, based on its determination, either confirm the proposal to remove the child or direct the society not to carry out the proposed removal.

16.3 At the hearing, the society will present its case first.

Decision

17.1 The CFSRB will issue its decision in writing, including its reasons, within 10 days of completing the hearing.

Part III: Application for Review or Hearing of a Complaint against a Children's Aid Society under Sections 119 and 120 of the CYFSA, 2017

Parties

18.1 The parties to the application are:

  1. the person who sought or received a service from the society;
  2. the society.

Application

19.1 The Application about Complaints against a Children's Aid Society must be filed with the CFSRB using Form 2.

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

19.3 The CFSRB will send the application to the society.

19.4 Complaints about an inaccuracy in files and records must be made to the society and dealt with by an ICRP before an application can be made to the CFSRB.

Eligibility

20.1 The application must contain relevant details in support of allegations that the society:

  1. refused to proceed with a complaint made under section 119(1);
  2. failed to respond to a 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 CYFSA, 2017 relating to the review of complaints;
  4. failed to ensure children, young persons and their parents had an opportunity 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 section 15(2); and/or,
  5. failed to provide reasons for a decision that affects the applicant's interests.

20.2 An application 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.

20.3 Within 7 days of receiving a complete application, the CFSRB will determine whether it is eligible for review and will advise the parties.

20.4 Where the CFSRB finds the application is not eligible for review, it will provide written reasons.

Response

21.1 The society must deliver its response to the applicant and file it with the CFSRB within 10 days of being advised the application is eligible for review. 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.

21.2 Where the society takes the position that the CFSRB cannot conduct a review because the subject of the application is:

  1. an issue that has been decided by the Court or is before the Court; or
  2. subject to another decision-making process under the CYFSA, 2017 or the Labour Relations Act, 1995,

the society must provide submissions in support of its position and attach all relevant documents and any Court orders to the response.

Written Review or Notice of Hearing

22.1 Within 20 days of determining eligibility, the CFSRB will:

  1. make its decision based on the application and the response; or
  2. decide to hold a hearing.

Pre-Hearing

23.1 The CFSRB will hold a pre-hearing in every application proceeding to a hearing and may exercise its discretion to hold more than one pre-hearing.

23.2 The first pre-hearing will be scheduled as soon as possible and, in any event, no later than 40 days after determining eligibility.

23.3 A pre-hearing may be held electronically unless a party satisfies the CFSRB that proceeding electronically would cause significant prejudice.

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

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

  1. a representative of an applicant's band, First Nations, Inuit or Métis community, where appropriate; and
  2. a support person of an applicant's choosing.

23.6 At a pre-hearing, the parties may consider settlement of some or all of the issues in dispute.

23.7 If the parties are not prepared to consider settlement or are unable to settle, the pre-hearing will proceed and the member will assist the parties to prepare for the hearing.

23.8 No later than 10 days after the pre-hearing or the final pre-hearing, the CFSRB 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 pre-hearing orders and directions.

23.9 The member who conducted a pre-hearing where settlement was discussed will not conduct the hearing, unless the parties consent in writing.

Hearing

24.1 The hearing will begin within 60 days of determining eligibility.

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

24.3 In addition to the parties and their representatives, the CFSRB may permit the following persons to attend the hearing:

  1. where appropriate, a representative of an applicant's band, First Nations, Inuit or Métis community;
  2. a support person of an applicant's choosing.

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

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

24.5 The society may ask the CFSRB to dismiss the application or to confirm the society's decision following completion of the ICRP process.

24.6 The applicant may ask the CFSRB 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 CFSRB;
  3. comply with the complaint review procedure established by regulation or with any other requirements under the CYFSA, 2017; or
  4. provide written reasons for a decision to the applicant.

24.7 On an application to review a final decision of an ICRP, the applicant may also ask the CFSRB to direct the society to conduct a further review or order the society to attach a notice of disagreement to the applicant's file.

Decision

25.1 The CFSRB will provide the parties with its written reasons for decision within 30 days of completing the hearing.

Part IV: Application for 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 192 of the CYFSA, 2017

Parties

26.1 The parties to the application are:

  1. the applicant;
  2. the society or licensee;
  3. if the child is First Nations, Inuk or Métis, a representative chosen by each of the child's bands, First Nations, Inuit or Métis communities;
  4. any other person the CFSRB determines is necessary to decide all of the issues in the review.

Application

27.1 The Application for Review of an Adoption Refusal must be filed with the CFSRB using Form 3 within 10 days after receiving notice of the decision to refuse to place a child or of the decision to remove a child after placement.

27.2 The CFSRB will send the application to:

  1. the society or licensee named in the application;
  2. if the child is First Nations, Inuk or Métis, the representative chosen by each of the child's bands, First Nations, Inuit or Métis communities.

Eligibility

28.1 To be eligible for review, the application must be filed by the person or persons to whom the notice of the society's or licensee's decision was addressed.

28.2 Within 7 days of receipt of the application, the CFSRB will determine whether the application is eligible for review and will provide its eligibility decision to the parties. Where the CFSRB finds the application is not eligible for review, it will provide written reasons for its decision.

28.3 If the application is eligible for review, the CFSRB will send the decision to the parties together with a Notice of Hearing which will provide the date, time and location of the hearing.

28.4 The eligibility decision is considered received:

  1. if sent by mail, on the fifth day after it is mailed;
  2. .
  3. if sent by fax, on the next day after it is faxed, unless that day is a holiday, in which case, it is considered received on the next day that is not a holiday;
  4. if sent by email on the day it is sent.

Hearing

29.1 The CFSRB will hold a hearing within 20 days of the day the applicant is considered to have received the eligibility decision.

29.2 The CFSRB 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.

29.3 At the hearing, the society or licensee will present its case first.

Decision

30.1 The CFSRB will issue its decision, including its reasons, within 10 days of completing the hearing.

Part V: Appeal of School Board Expulsion Decision under Section 311.7 of the Education Act

Time

31.1 For the purposes of calculating the time to appeal an expulsion decision and for delivering documents in an appeal, "holiday" also includes any school holiday.

Parties

32.1 The following persons may appeal an expulsion decision:

  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. any other person designated by the CFSRB.

32.2 The parties to the appeal are:

  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 expulsion decision;
  4. the person who appealed the expulsion decision, if the decision was appealed by a person other than the pupil or the pupil's parent or guardian.

Appeal

33.1 The Appeal of a School Board Expulsion Decision must be filed with the CFSRB using Form 4 and within 30 days after receiving notice of the expulsion decision. The appeal must attach the expulsion decision and the response to the principal's report recommending expulsion, if any.

33.2 Notice of the expulsion decision is considered received by the appellant:

  1. if sent by mail or another method in which the original notice of decision is sent, it is considered received on the fifth school day after the day on which it was sent;
  2. if sent by fax, email or another method of electronic transmission, the notice of decision is considered received on the first school day after the day on which it was sent.

33.3 The CFSRB may extend the time for filing the appeal, before or after the expiry of the 30 day period, if satisfied there are reasonable grounds for the extension.

33.4 The CFSRB will send the appeal to the responding school board. The school board must file the principal's report recommending expulsion with the CFSRB as soon as possible and, in any event, within 2 days of receiving the appeal.

Hearing

34.1 The hearing will begin no later than 30 days after the CFSRB receives the appeal.

34.2 The CFSRB may consider a party's request that the hearing begin after the 30 day period.

34.3 The appeal is a new hearing. The CFSRB must decide whether to:

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

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

34.4 At the hearing, the school board will present its case first.

34.5 The pupil has the right to be present at the hearing and to make a statement, whether or not the pupil is a party to the appeal.

Decision

35.1 The CFSRB will provide each party and their representatives with its decision within 10 days of completing the hearing.

35.2 The CFSRB will 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 171 of the CYFSA, 2017 (ESTA)

Parties

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

36.2 The parties to the application are:

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

Application

37.1 The Application for Review of Emergency Admission to Secure Treatment Program must be filed using Form 5.

37.2 The application must be delivered to the Centre and filed with the CFSRB by courier, email or fax.

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

Notice and Scheduling

38.1 The Centre must make all reasonable efforts to send a copy of the application by same day or overnight courier, email or by fax to the parent of the child, the person who is caring for the child with the parent's consent, or the society that has legal care or custody of the child.

38.2 Where the applicant is not the child, the CFSRB shall immediately notify the Office of the Children's Lawyer.

38.3 The CFSRB must hear and decide the application within 5 days of receiving the application.

38.4 On receipt of the application, the Centre will inform the CFSRB of its psychiatrist's availability to testify and the CFSRB will take this information into account when scheduling the hearing.

Withdrawal

39.1 Withdrawal of an ESTA application must be completed using Form 6.

Disclosure

40.1 Parties must disclose any documents and a list of their proposed witnesses to all parties and file them with the CFSRB no later than 2:00 p.m. the day before the hearing.

Hearing

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

41.2 The child is entitled to be present at the hearing unless:

  1. the CFSRB 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.

41.3 The CFSRB may require a child who has consented to a hearing proceeding in his or her absence to be present at all or part of the hearing.

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

41.5 The Centre will present its evidence first.

Decision

42.1 The CFSRB will decide the application within 5 days of receiving it. The CFSRB will provide written reasons for its decision within 10 days of its order disposing of the application.

42.2 The child will be released from the secure treatment program unless the CFSRB is satisfied he or she meets the criteria for emergency admission in the CYFSA, 2017.

Part VII: Application for Review of a Residential Placement under Section 66 of the CYFSA, 2017

Parties

43.1 The parties to the application are:

  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. if the child is First Nations, Inuk or Métis, the representative chosen by each of the child's bands, First Nations, Inuit or Métis communities;
  4. any other person the CFSRB specifies.

Application

44.1 Any child may apply for a review of his or her residential placement if the placement has been reviewed by the Residential Placement Advisory Committee (RPAC).

44.2 An application for a review may be made when:

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

44.3 The Application for Review of a Residential Placement must be filed with the CFSRB using Form 7.

44.4 The CFSRB will send the application 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

45.1 Within 7 days of receiving the application the society, where it is the respondent, must deliver its response to the CFSRB and the other parties. The response must include:

  1. the RPAC report;
  2. the society's 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

46.1 The CFSRB will tell the applicant if a hearing will be scheduled within 10 days of receiving the application.

46.2 If a hearing is scheduled, the parties must disclose any documents and a list of their proposed witnesses to all parties and file them with the CFSRB no later than 10 days before the hearing.

Decision

47.1 The CFSRB must complete its review and make a decision within 30 days of receiving the application. This time may be extended where a hearing is held and the parties consent to the extension.

47.2 The CFSRB may:

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

Withdrawal

48.1 An applicant may withdraw the application. The CFSRB will confirm the withdrawal in writing to the applicant and the other parties.

Forms




Effective as of May 1, 2018
sjto.ca/cfsrb