NO PASSWORD REQUIRED: CAS whistleblower cleared of hacking charges.
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Canada: Novel Case On Data Exclusion Interpreted In Favour Of Insureds
An Ontario judge recently interpreted a data exclusion in favour of the insureds, ordering the insurer to defend claims arising out of an alleged website security breach.1 A website owned by Family and Children's Services of Lanark, Leeds and Grenville ("FCS"), was breached when an unauthorized party downloaded and published documents stored in a secured section of the website, which contained personal information about individuals who had been the subject of FCS investigations. A broadly worded claim was subsequently brought against FCS, alleging damages resulting from defamation, breach of privacy and other causes of action. Laridae Communications Inc. had provided advice to FCS on the design and security of FCS's website. FCS issued a third-party claim against Laridae.
Footnotes: 1 Laridae v Co-Operators, 2020 ONSC 2198.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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Court Refuses to Apply Liability Policies’ Electronic Data Exclusions, Cites Lack of Jurisprudence.
Laridae v. Co-operators, 2020 ONSC 2198 (CanLII)
Earlier in May, in Laridae v. Co-operators, 2020 ONSC 2198, an Ontario court was hesitant to offer guidance on the proper application of two “electronic data exclusions” that expressly withdrew coverage for the misappropriation and display of electronic information on the internet. At issue were allegations arising from particularly egregious hacking incidents involving a child protection agency’s website. Noting an apparent lack of guiding authority (“there is no jurisprudence on the proper interpretation of data exclusion clauses”), Pollak J. ordered a liability insurer to separately defend the named and additional insureds.
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2020: How the lack of cyber case law worked against an insurer in a $75-million data breach lawsuit.
The lack of cyber case law worked against an insurer in the Ontario Superior Court of Justice recently, with the court deciding that The Co-operators has a duty to defend two parties named in a $75-million cyber breach class action lawsuit.
Cyber Crime Investigations: Bridging the Gaps Between Security Professionals, Law Enforcement, and Prosecutors Paperback – April 4 2007.
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Blackstone's Handbook of Cyber Crime Investigation Paperback – March 30 2017.
This authoritative Handbook provides a clear and detailed introduction to cyber crime, offering you an effective operational guide to the complexities and challenges of investigating cyber-related crimes.
https://cata.ca/2018/cyber-crime-fighting-centres/
Concise and accessible, this book is an ideal reference and resource for all operational police officers, the extended police family and partners working to keep communities safe from the online phenomenon of cyber crime.
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What Are The Consequences Of Filing A False Report To Your Insurance Company In Canada And The Police (if your employed by a children's aid society)
What are the offences someone can be charged with under the Criminal Code of Canada for filing a false police report or lying to the police?
The offence under the Criminal Code which would be most applicable is committing public mischief under section 140. That section states:
140 (1) Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by...
making a false statement that accuses some other person of having committed an offence;
doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;
The purpose of the law is to discourage and punish false reporting and of course to prohibit people from falsely accusing others. Making a false statement transpires when the person makes the statement with the intention of misleading justice. One cannot be convicted if it is determined that they genuinely believed the statement to be true at the time it was made.
In addition to public mischief, there are several other offences under the Criminal Code that a person could find themselves charged with if they file a false police report or lie to the police. These include the following:
Perjury under section 131 of the Code if the person, with intent to mislead, knowingly gives a false statement under oath, affirmation, by affidavit, solemn declaration or deposition;
Fabricating Evidence under section 137 of the Code if the person, with intent to mislead, fabricates anything (such as a police report) with the intent that it shall be used as evidence in a judicial proceeding; and
Obstructing Justice under section 139 (2) of the Code if the person wilfully attempts to obstruct, pervert or defeat the course of justice.
These offences involving the misleading of justice and which include lying to the authorities are taken very seriously. This is clear when looking at the potential and maximum penalties under the Code. Perjury and fabricating evidence are indictable offences with potential prison terms of up to 14 years, while obstruct justice under 139 (2) of the Criminal Code is an indictable offence with a maximum sentence of imprisonment for 10 years.
https://laws-lois.justice.gc.ca/eng/acts/C-46/
The penalties for committing public mischief are outlined at section 140(2) of the Criminal Code. If the Crown Attorney perceives the case as serious and elects to proceed by indictment, then an accused who is found guilty is potentially liable to imprisonment for a term not exceeding five years. If the Crown decides to proceed summarily (less serious case) and an accused is found guilty then they are liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both. The actual punishment imposed for those convicted will vary according to the facts of each case and the circumstances of each offender.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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2018: Ransomware attacks hit two Ontario children’s aid societies. (a third breach?)
Ransomware attacks at two children’s aid societies have spurred the Ontario government to tighten cybersecurity around a new, $123-million provincial database for children in care.
Officials with the other agency — Family and Children’s Services of Lanark, Leeds and Grenville — claim they saw an English ransom message flash on their computer screens, demanding $60,000, when they tried to access their database in November.
“It encrypted most of our servers,” says the Lanark agency’s executive director, Raymond Lemay. “No data was taken out of our system. It was just an attempt by whatever you call these people to get a ransom.”
Lemay says his agency didn’t pay up. He says it used an offline backup of computer files to get the agency up and running again in about eight hours.
Back up copy or was there two sets of books and something to hide?
Lemay says the ransomware attack cost his agency $100,000 to fix, an expense covered by his agency’s “cyber insurance.”
Cybersecurity experts from the province’s Ministry of Children and Youth Services, along with a private internet security firm, swooped into the agency to neutralize the malware in the infected servers.
“It took them about three weeks to find the needle in the haystack,” Lemay says.
The ransomware attack locked the agencies out of local online files that contained private information on the children and families they serve.
The computer virus attacked while the Lanark agency was uploading its data to a centralized database known as CPIN. It will allow societies across Ontario to share information more easily and better track how children in foster care and group homes are doing.
“They might have taken advantage of vulnerabilities that occurred because we were changing over to a new system,” Lemay says of CPIN. That’s one of the hypotheses, but we don’t know for sure.”
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Steering Committee on Justice Efficiencies and Access to the Justice System – Report on Disclosure in Criminal Cases. June 2011.
DENHAM WAS LUCKY TO DIG OUT FROM UNDER THE AVALANCHE THE CAS HAD DUMPED ON HER.. ALLEGED HACKER ACQUITTED.
Denham’s life took a rapid turn in April 2016 when police broke through her kitchen door to execute a search warrant to seize phones, computers, a gaming system, and USB sticks — anything that could store evidence related to her access to the website.
Kicking in the family's kitchen door in the early-morning raid (2:30am), Denham said they put her husband in handcuffs.
“I woke up to police in my bedroom and after I yelled for them to take the ‘cuffs off of him, they did. They also wouldn’t let me call a lawyer.”
On her full acquittal, a relieved Denham said: “I’m glad it’s over. It was four years of my life on hold and it's not over yet.
Stay tuned for for Kelley's police interrogation video to be posted shortly and I believe we have copies of the deals the College of Social Workers and the Crown wanted Kelley to sign..
Truth usually goes through three stages – First, it is ridiculed, then it is opposed and finally it is accepted as being self-evident.
The case was never a Whodunit..
After a four-month investigation (?), Denham was charged with hacking and identifying children involved in court proceedings, when in fact she did neither, and earlier this week Ontario Court Justice Charles D. Anderson acquitted her of all charges and cleared her name after trial.
Fady Mansour, the lawyer who won the acquittals, said his client was pleased with the result.
There is a major power imbalance between an impoverished parent (we know that families of low socio-economic status are hugely overrepresented in the child welfare system) and a privately operated multi-billion dollar government funded non profit corporation (state agency). To guard against such an imbalance, it is critical that our legal system respect the time-tested procedural safeguards developed to specifically ensure that the disadvantaged party is treated fairly.
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2015: Meet former director of service for FCSLLG Kim Morrow..
This is Denham's meeting with Kim Morrow to discuss FCSLLG's complaint process. (Kim does not know she's being recorded)
Please take a minute and rate FCSLLG, the management and their staff..
Thank you.
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CONSENT TO INTERCEPTION - CANADA.
Documenting the facts is not a crime...
Broadly speaking, Canadians can legally record their own conversations with other people, but not other peoples' conversations that they are not involved in.
183.1 Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of those persons is sufficient consent for the purposes of any provision of this Part. [1993, c.40, s.2.]
The Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code] imposes a general prohibition on interception (recording) of private communications, but then provides an exception where one of the parties to the private communication consents to the interception of that communication. Thus, broadly speaking, Canadians can legally record their own conversations with other people, but not other people's conversations that they are not involved in.
Other legislation in Canada protects various privacy rights, but does not prevent Canadians from recording their own conversations with others.
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FCSLLG FINANCIAL STATEMENTS MARCH 31, 2019.
INDEPENDENT AUDITOR'S REPORT
Opinion: We have audited the financial statements of Family and Children's Services of Lanark, Leeds and Grenville ("the Society"), which comprise the statement of financial position as at March 31, 2019, and the statements of operations and changes in fund balances, cash flows and remeasurement gains and losses for the year then ended, and notes to the financial statements, including a summary of significant accounting policies.
In our opinion, the accompanying financial statements present fairly, in all material respects, the financial position of the Society as at March 31, 2019, and the results of its operations and its cash flows for the year then ended in accordance with Canadian public sector accounting standards.
Basis for Opinion
We conducted our audit in accordance with Canadian generally accepted auditing standards. Our responsibilities under those standards are further described in the Auditor's Responsibilities for the Audit of the Financial Statements section of our report. We are independent of the Society in
accordance with the ethical requirements that are relevant to our audit of the financial statements in Canada, and we have fulfilled our other ethical responsibilities in accordance with these requirements.
We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our opinion.
Material Uncertainty Related to Going Concern
We draw attention to Note 3 in the financial statements, which indicates that the Society's operating fund expenses exceeded revenues by $1,114,539 during the year ended March 31, 2019 and, as of that date, the Society's current liabilities exceeded its current assets by $3,827,221. As stated in Note 3, these
events or conditions, along with other matters as set forth in Note 3, indicate that a material uncertainty exists that may cast significant doubt on the Society's ability to continue as a going concern. Our opinion is not modified in respect of this matter.
https://fcsllg.ca/wp-content/uploads/2019/08/Audited-Financial-Statements-Fiscal-2018-2019-003.pdf
https://fcsllg.ca/wp-content/uploads/2018/09/FCSLLG-Audited-Financial-Statements-Mar-31-2018.pdf
FCSLLG: Funding and debt:
This was our 3rd difficult financial year with a year-end deficit of $900,000, and a debt of about $2 million.
Early on, based on the government’s “planning” allocation (an amount provided to us in the new year for budget planning purposes), we had forecast a deficit
of $150,000. In August, we went through a month long cybercrisis that ended up costing an unanticipated $500,000. But in mid-October (the 7th month of the
fiscal year), the government finally announced that our annual allocation would be $650,000 less than the amount we had planned on receiving, which gave us less than 5 months to cut back spending.
The board, fearing insolvency, met with the Ministry’s Regional Director, and reiterated our request for a financial review, and argued that FCSLLG was in a difficult circumstance.
MCCSS, having bridged the Agency’s cash flow crisis with a significant loan, decided to conduct an operational review which was carried out in May 2019, the results of which are yet to be published. The FCSLLG financial situation continues to be worrisome, but we are not alone. 16 of the 38 CASs are in a deficit.
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2020: CAS WHISTLEBLOWER ACQUITTED.. NO PASSWORD REQUIRED!
After a four-month investigation, the Smiths Falls police, the Perth crown's office and FCSLLG along with the law firm FASKEN colluded to scapegoat Denham who was charged with hacking and identifying children involved in court proceedings, when in fact she did neither, and earlier this week Ontario Court Justice Charles D. Anderson acquitted her of all charges and cleared her name after trial.
(Fasken is a full-service multi-national law firm with offices in Canada, the U.K., South Africa and China. We work with clients around the globe, offering expertise in legal issues affecting all types of industry, government and individual objectives. https://www.fasken.com/en/)
For four years Kelley Denham refused every sweet deal the Perth crown's office offered her in exchange for a guilty plea.. (many times against the best professional advice Kelley couldn't afford)
The online “private portal” hosted by a server in Michigan didn’t have any security and the US based server provided none. No firewall. No password, username or hacker skills required to view unencrypted client, corporate documents and resumes going back to when they the site first went online listed by year and month — just a simple click of a button and you could access its confidential client list, hundreds of other client documents and internal corporate documents considered private for the children’s aid society.
It was Kelley Denham, 32, who blew the whistle on the website’s absence of security and in February 2016 posted some documents online that the board of the children’s aid agency considered confidential.
She wanted the children’s aid society to take it down, and for her trouble, the agency called Smiths Falls Police.
Denham’s life took a rapid turn in April 2016 when police broke through her garage door to execute a search warrant to seize phones, computers, a gaming system, and USB sticks — anything that could store evidence related to her access to the website.
In the early-morning raid, Denham said they put her husband in handcuffs.
“I woke up to police in my bedroom and after I yelled for them to take the ‘cuffs off of him, they did. They also wouldn’t let me call a lawyer.”
On her full acquittal, a relieved Denham said: “I’m glad it’s over. It was four years of my life on hold.
The judge noted that the CAS did not take appropriate measures to secure private information. The judge also noted there were no special computer skills or deception required to access the files, which were not marked as confidential and came with no warnings or disclaimers.
The information was publicly available, the judge ruled. He said there was no hacking and Denham didn’t break any Children’s Aid Society (CAS) laws about identifying children involved in court proceeding.
When Denham first publicized the absence of security on the child-welfare agency’s website, they shut it down and figured it was time to hire a computer security expert.
At the time, the agency’s program manager in charge of the website was Margaret Row. The child-welfare agency hired Margaret Row’s son-in-law, David Schmidt, to investigate what happened and fix any breach of security even though there wasn’t one, according to undisputed facts in the judge’s decision.
Schmidt’s investigation revealed that IP addresses linked to Denham had accessed the children’s aid society’s public website, just like anyone else could.
Schmidt also reported about the website’s absence of security, something Denham, an adult-education teacher, had already exposed. Schmidt made several recommendations to boost security — notably for the child-welfare agency to have two separate websites: one for the online public, and an intranet exclusively for board members with VPN only access..
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IT'S NOT ROCKET SCIENCE...
Ontario's CAS grappling with how to monitor privacy breaches. July 17, 2017 ARTICLE SOURCE Toronto Star.
Child welfare workers who pry into electronic records of youth in care are impossible to track, critics warn, with an alert system for possible privacy breaches used only on select files.
The challenge of tracking who is using the system isn't unique to the new system, as previous independent children's aid society databases faced the same problem, according to Elman.
SOLUTION....
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The ISG with IDP defends against security threats such as worms, trojans, malware, spyware, unauthorized users and hackers and can provide information on rogue servers and data on applications and operating systems that were inadvertently added to the network. Application signatures enable administrators to maintain compliance and enforce corporate business policies with accurate detection of application traffic.
Denham Story Continues:
The agency went against the main recommendation and a few months later, Denham was able to access a spreadsheet that listed more than 250 names of clients of the children’s aid society. She posted a photograph of the hyperlink to access the files but did not post any names.
The judge noted that the CAS did not take appropriate measures to secure private information. The judge also noted there were no special computer skills or deception required to access the files, which were not marked as confidential and came with no warnings or disclaimers.
The information was publicly available, the judge ruled. He said there was no hacking and Denham didn’t break any Children’s Aid Society (CAS) laws about identifying children involved in court proceeding.
“Ms. Denham has been vindicated and her conduct was not only not criminal but ultimately led to the (child-welfare agency) having to fix a very serious problem in their system.
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2019: PAGE 29/30 - Trial Testimony.
EXECUTIVE DIRECTOR RAYMOND LEMAY.
I was just repeating what had been explained to me. That the security features of the website, when it was first installed, had not been turned on. That’s what was explained to me, and I am just repeating what I heard.
Q. So, all you know is whoever C.A.S. retained for you working in your position did something incorrectly with respect to the website that caused this issue?
(Does that mean every file FCSLLG upload to the internet and not just client information but every file could have been downloaded by just anyone since FCSLLG's website went online???)
A. That’s what, that’s what I understand, yes.
READ THE COMPLETE TRIAL TRANSCRIPT HERE: https://www.kelleyandderek.com/
D. David Rakobowchuk: Trial Testimony
-8-
43. Det. Rakobowchuk is himself a member of the above Facebook group. He testified that to join the group, a Facebook user had to request approval from a group administrator.12
44. Det. Rakobowchuk testified that there was no breach of password or anything similar used to gain access to the spreadsheet in question:13
Q. And, just for the purpose of the record, you have referred to — the information you got there was a hack, I guess?
A. Yes.
Q. But, as the investigation went on it was very — it became clear that there was no actual, I guess, a breach of a password, or anything like that used to gain this information?
A. Exactly.
READ THE COMPLETE TRIAL TRANSCRIPT HERE: https://www.kelleyandderek.com/
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M.M. v. Lanark, Leeds and Grenville Children’s Aid Society, 2018 ONSC 5032 (CanLII) 2018-08-23.
[20] Ms. Denman, who is the central actor either as a commendable whistleblower or as a deplorable newsmonger and hacker and leaker of confidential information is seriously inconvenienced and possibly prejudiced by having to defend or prosecute the various proceedings in Toronto, where she has been unable to obtain a lawyer to represent her.
[1] In 2016, pursuant to the Class Proceedings Act, 1992,[1] M.M., who had been subject to a child protection inquiry, brought a proposed class action against: (a) Family and Children’s Services of Lanark, Leeds and Grenville (“the Society”), a children’s aid society, then regulated by the Ministry of Children and Youth Services of the Ontario government; (b) Raymond Lemay, the Executive Director of the Society, (b) Tracy MacCharles in her capacity as the Minister of Children and Youth Services, (d) Her Majesty the Queen in Right of Ontario (“Ontario”), and (e) Jane Doe, who was later identified in an Amended Statement of Claim to be (f) Kelley Denham.
[2] On December 21, 2017, M.M. moved for certification of her action as a class action. The Defendants consented or did not oppose certification, and the action was certified as a class proceeding against the Society to advance three causes of action; namely: negligence, intrusion upon seclusion and breach of section 7 of the Canadian Charter of Rights and Freedoms; and against Ms. Denham to advance an intrusion upon seclusion claim.[2]
[3] In the class action, the Class Members claim $75 million in general, special, and punitive damages from the Society and $1 in damages from Ms. Denham.
[4] After the certification of the action, the pleadings were completed. The Society delivered a Statement of Defence and included a Crossclaim for contribution and indemnity from Ms. Denham, whom it blamed for the disclosure of the Class Member’s private and confidential information.
[5] Ms. Denham delivered a Statement of Defence and included a $15 million Crossclaim against the Society Defendants for negligence, intrusion upon seclusion, breach of section 7 of the Canadian Charter of Rights and Freedoms, defamation, abuse of process, and intentional infliction of emotional distress.
[6] Now before the court are several motions for a diverse mix of procedural and evidentiary orders.
a. M.M. seeks to discontinue her action against Ms. Denham.
b. The Society, which, as noted above, had crossclaimed against Ms. Denham, seeks an Order converting its Crossclaim into a Third Party Claim and converting Ms Denham’s Crossclaim into a Counterclaim in the Third Party Action.
c. The Society seeks an Order that the Third Party Action including its Counterclaim be case managed in Toronto as a part of the class action and be tried together with or immediately following the class action.
d. The Society seeks a sealing order. The sealing Order is said to be required to address confidentiality concerns arising because of s. 87 (8) of the Child Youth and Family Services Act, 2017[3] and s.70(1) of the Children's Law Reform Act.[4]
e. Ms. Denham does not oppose the continuation of the crossclaims within a Third Party Action, but she opposes the request for case management in Toronto and asks the court to transfer the Third Party Action to Perth, where she lives and where apparently she will have a lawyer prepared to act for her in defending the Third Party Action and in prosecuting her Counterclaim.
[7] The request for a sealing order, which was not opposed, should be granted.
[8] Section 87 of the Child Youth and Family Services Act, 2017 prohibits the publication of information that has the effect of identifying a child who is the subject of a child protection proceeding.
[9] In order to defend itself to Ms. Denham’s Crossclaim or Counterclaim, the Society may need to identify a child who is the subject of a child protection proceeding, and the Society is rightly concerned that there be no breach of s.87 of Child Youth and Family Services Act, 2017 or of s.70 (1) of the Children's Law Reform Act.
[10] The Society’s request for a sealing order will permit it to defend itself to Ms. Denham’s Crossclaim or Counterclaim without beaching these statutes.
[11] Moreover, a sealing order would be appropriate in accordance with the common law test for sealing a court file or otherwise limiting the open court principle.[5]
[12] Turning to the other requests for relief, the only area of contention is whether the class action and the third party proceeding should be case managed in Toronto or whether these actions should be transferred and case managed by a judge of the East Region of this court.
[13] M.M., who is represented by Flaherty, McCarthy LLP, a downtown Toronto law firm, and the Society Defendants, who are represented by Fasken Martineau DuMoulin LLP, a downtown Toronto law firm oppose the transfer of the action to the East Region.
[14] Apart from the location of M.M.’s and the Society Defendants’ lawyers, there is nothing to connect the proposed class action to Toronto. All the events in the class action, all the events in the third party proceedings, and all the events in the counterclaim in the third party proceeding occurred in the East Region.
[15] The class action and the third party proceeding are inextricably interwoven, with multiple overlapping issues of fact and law to be determined. There is a substantial overlap between the events of the class action and of the third party proceeding, which should not be separated, and where there is no overlap, the events have no connection to Toronto.
[16] Although the current litigation plan does not envision any individual proceedings, if the Class Members were to advance individual claims for idiosyncratic special or general damages caused by the release of the private and confidential information, the venue of those individual proceedings would have no connection to Toronto unless the Class Member happened to have moved.
[17] Apart from the convenience to counsel, there are no advantages to having the class action managed in Toronto and there is no advantage to having the various actions determined by trial or by summary judgment motion in Toronto.
[18] Ms. Denham’s, M.M.’s and the representative of the Society’s examinations for discover will or should occur in the East Region where the parties reside.
[19] The events of the various actions, which attracted the attention of the media in Perth, Ontario, are of interest to the citizens of the East Region, who have an interest in the operation of their local children’s aid societies, but the events are of little more than of prurient interest to the citizens of Toronto.
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Unfair or Indefensible - Costs Against C.A.S.?
On behalf of Gene C. Colman Family Law Centre posted in Child Welfare on Tuesday, January 7, 2014.
There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal (Ontario Family Law Rules, R. 24(1)). There is, however, no such presumption for costs in a child protection case (Rule 24(2)). Does that mean that a successful parent can never obtain a costs order against a children's aid society? Let us delve a little further.
The lack of presumption for costs is perfectly understandable. The Courts have been hesitant to impose cost orders against children's aid societies as they are faced with the difficult statutory duty of protecting children from harm and the law tells us that they should not be punished (through costs orders) for errors of judgment. A further reason for courts rarely awarding costs against societies stems from the view that societies should not be discouraged from taking action because of the risk of an adverse costs order.
Rule 24(2) does not give children's aid societies the authority to behave with impunity though. The courts have (and will) order costs against children's aid societies in limited circumstances. For example the 2013 matter of Catholic Children's Aid Society of Toronto v. SSB awarded costs to the mother and Office of the Children's Lawyer for the procedural failings of the CCAST. This case affirms the courts' approach in awarding costs against children's aid societies in that a society will not be shielded from costs where its behaviour is "unfair or indefensible or where exceptional circumstances exist".
In SSB the CCAST sought disclosure of "clinical investigation notes" from the OCL. The OCL claimed that the requested documents were subject to solicitor-client privilege and therefore could not be disclosed as the disclosure would amount to a serious breach of trust between the OCL and the children. The prevailing concern was that the CCAST had sought to obtain the privileged documents on three separate occasions (only to withdraw their motion before a decision could be delivered) and had put the mother and OCL to considerable expense in defending the motions. The judge considered that the repeated attempts to obtain disclosure was tantamount to an abuse of process and verged on acting in bad faith. The judge, most helpfully, summarized the responsibility of the CCAST as follows [at paragraph 12]:
... Like any other litigant, the society must conduct itself according to the rules. It is given broad investigative scope, and cannot and should not be liable for costs for actions it takes in good faith in its duty to investigate cases. That, however, does not give a society licence to ignore the general rules of procedural fairness. When it does, it should be liable in costs.
The CCAST matter also made reference to the 2005 decision of Children's Aid Society of Niagara Region v. B. (C.), which provides guidance for the circumstances when children's aid societies should and should not be liable for costs. These can be summarized as follows [paragraphs 89-100]:
1. Bad Faith Not Required: To attract an adverse award of costs, a children's aid society need not have acted in bad faith;
2. Fairness: Costs may be awarded against a society, "where it conducts itself... in a way where it would be perceived by ordinary persons as having acted unfairly";
3. Indefensible Behaviour: Many cases hold that a children's aid society should only be visited with an adverse award of costs where it has taken a step or position that is "indefensible", ie. "admitting of no defence".
4. Exceptional Circumstances: There is a line of decisions holding that costs should not be awarded against a society "unless exceptional circumstances exist";
5. Error in Judgment not sufficient to attract costs: A society should not be punished for a mere error of judgement (an error of judgement can truly arise only where one has considered all courses of action reasonably available at the time);
6. Society Not to Be Dissuaded by Costs: A society should not be dissuaded from its statutory mandate by costs considerations;
7. Society to Re-assess Its Position: A children's aid society must be even-handed and act in good faith. To this end a society must be prepared to re-assess its position as an investigation unfolds and more information becomes known;
8. Accountability: "Children's aid societies must be accountable" for the manner in which it investigates a case and in the way it chooses to litigate that case (one method of achieving accountability is through costs sanctions);
The judge in CASNR tells us that a society can attract an adverse costs award where it fails in any of the following seven areas (paragraph 102):
1. Investigation before apprehension;
2. Continued investigation after apprehension;
3. Consideration of all appropriate protective measures;
4. Formation of a fair and defensible position;
5. Reassessment of that position as circumstances warrant;
6. Use of properly trained workers; and
7. Accessing independent experts in the field of child psychology.
This more critical approach adopted by some courts should provide some modest encouragement to parents who have been subjected to biased investigations or litigation undertaken by a children's aid society where the C.A.S. actions were patently unfair or indefensible. These factors should be relevant not only to a costs determination but also to the expected standard of care to which child protection authority must adhere. Holding these agencies accountable to such standards should hopefully be encouraged by the case management judge as the case unfolds.
If you have a matter where a children's aid society has acted unfairly, indefensibly or there are exceptional circumstances, you may benefit from a consultation with our experienced child welfare lawyers.
Tags: CAS, Child Custody, Child Protection, Child Welfare, Children's Aid Society, Costs, Procedural Fairness
Related Posts: THE EASTER BUNNY AND C.A.S. ABUSE OF POWER, Do's and Don'ts of a CAS Apprehension of Your Child, C.A.S. Attitude: Win child welfare cases at all costs, PROPORTIONALITY, SUMMARY JUDGMENT, SELF REPRESENTED CHILD WELFARE LITIGANTS
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THE ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN -and- KELLY J. DENHAM.
APPEARANCES: FOR THE CROWN: Mr. Corbella
FOR THE DEFENDANT: Mr. Mansour
REASONS FOR JUDGMENT
These are reasons for judgment concerning Kelly J. Denham who stands charged with the following counts under the Criminal Code of Canada, and the Child and Family Services Act of Ontario, specifically:
- Criminal Code s. 430(1.1)(c): that between 31 January 2016 and 18 April 2016 she did obstruct, interrupt or interfere with the lawful use of computer data of the Family and Child Services of Lanark, Leeds and Grenville.
- Criminal Code s. 430(1.1)(d): that between 31 January 2016 and 18 April 2016 she did obstruct, interrupt or interfere with a person in the lawful use of computer data, or denied access to computer data to a person who was entitled to access it.
- Criminal Code s. 342.1(1)(c): that between 31 January 2016 and 18 April 2016, she did fraudulently and without colour of right, use, or cause to be used, directly or indirectly a computer system with intent to commit an offence under s. 430 in relation to computer data.
And under the Child and Family Services Act
- Child and Family Services Act of Ontario s. 76: that on 18 April 2016 she published information that has the effect of identifying a witness at, or a participant in a hearing, or a party to a hearing, to wit; the names of clients of Family and Children Services.
- Child and Family Services Act of Ontario s. 45(8): on 18 April 2016 did publish information that has the effect of identifying a child who is a witness at, or a participant in a hearing, or the subject of a proceeding, or the child’s parents, or foster parents, or a member of the child’s family, to wit; the names of clients of Family and Children Services.
The trial took place before me at Perth. It was agreed by counsel that the information alleging offences under the Criminal Code would be tried together with the information under the Child and Family Services Act of Ontario, with the evidence received applying to both.
At the conclusion of the evidence on 15 August 2019, counsel requested and I agreed to an adjournment for oral and written argument. Argument was finally concluded on 17 December 2019, and the matter was adjourned ultimately to this date for judgement.
Read more here shortly @ http://kelleyandderek.com/
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Ontario's Whistleblower Regime: Civil Cause of Action for Reprisals Now Possible.
The amendments provide that any relevant whistleblower claiming an improper reprisal may bring an action in the Ontario Superior Court of Justice or make a complaint to be resolved by binding arbitration. In any such case, the company will have the legal burden of proof to demonstrate that it did not engage in a reprisal.
Under the Ontario Securities Act, the OSC may take enforcement action against corporations who take reprisals against whistleblowers.
Public sector salary disclosure 2017: organizations with no salaries to disclose.
Information on all public sector organizations, covered under the Public Sector Salary Disclosure Act, with no employees who earned $100,000 or more in 2017.
Brown Derrick $101,674.15 $158.34 FCSLLG Human Resources Manager
Eastwood Jennifer $116,121.74 $140.07 FCSLLG Director of Corporate Services
Edmundson Nicola $101,143.12 $158.34 FCSLLG Senior Counsel
Fleet Michael $106,097.47 $158.34 FCSLLG Director of Service
Harper Penny $101,610.27 $158.34 FCSLLG Manager of Finance
Jonkman Debbie $104,048.11 $927.59 FCSLLG Service Manager
Knapp-Fisher Cathie $111,006.23 $158.34 FCSLLG Director of Operations and Innovation
Leblanc Dana $102,348.80 $158.34 FCSLLG Service Manager
Lemay Raymond $194,498.98 $9,123.92 FCSLLG Executive Director
Marcotte Erin Lee $106,097.47 $158.34 FCSLLG Director of Service
Morrow Cynthia $103,591.80 $158.34 FCSLLG Service Manager
Simon Siju $106,462.80 $158.34 FCSLLG Service Manager
Thomas Stephanie $101,611.80 $158.34 FCSLLG Service Manager
Von Cramon Karynn $112,779.01 $158.34 FCSLLG Manager of Legal Services
https://www.ontario.ca/page/public-sector-salary-disclosure-2017-organizations-no-salaries-disclose
"Still more sunshine around."
By Ronald Zajac, Recorder and Times Monday, April 3, 2017
Family and Children’s Services of Lanark, Leeds and Grenville contributed 14 names to the 2016 Sunshine List, led by former director of operations and innovation Kimberley Morrow, who earned $135,132.45 ($158.34 an hour), followed closely by the organization’s executive director Raymond Lemay, at $126,404.79 ($6,271.86 an hour).
Manager of Legal Services Karynn Von Cramon made $111,941.48 ($158.34 an hour).
Director of Corporate Services Jennifer Eastwood earned $114,935.99 ($158.34)
Lake 88.1 “In Focus”interview with LAO’s Andreas Von Cramon and Nathalie Champagne: Date: April 8, 2014.
Description: Transcript of April 8th, 2014 “In Focus” interview by Bob Perreault from Lake 88.1 FM in Perth and Andreas Von Cramon, Supervisory Duty Counsel Criminal/Family Law and Nathalie Champagne, District Area Director, Ottawa Region.
Anderas von Cramon Supervisory Duty Counsel Family, Criminal Law in Brockville, Lanark, Leeds and Grenville and is married to the CAS in house lawyer for FCSLLG, Karynn Von Cramon.
Anderas von Cramon operates a free family law clinic for families dealing with the CAS out of the courthouse to provide advice to people and to help them to prepare for family law cases, or to try to resolve their family cases outside the court. (sign consent forms and service agreement)
Parents go in praying for competent representation and good advice and instead get someone willing to bill legal aid to guide the parents through the process of having all their rights, dignity and children stripped away from them. According to legal aid right now family lawyers willing to accept legal aid bill an average of $40 000 dollars per case for not filing documents or filing them after the court has already granted the society a supervision order.. Or the society requests the judge order the parents to sign consent or service agreements after the parents have refused to sign anything and the judges oblige the society by ordering the parents to just cooperate.
Anderas von Cramon also gives basic help drafting documents. Basic means what? It means no help swearing in and filing documents or serving the document before the deadline - which means he does less than nothing.
http://www.casprivacybreach.com/
http://www.casprivacybreach.com/whats-new/
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