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Tuesday, August 04, 2009

Alberta Government Official Found in Contempt of Court

The Alberta Court of Appeal recently made a very interesting decision that has profound implications for the quality of governance and accountability of public servants in Alberta.

The court found the Alberta government Director of Child, Youth and Family Enhancement in the Department of Children and Youth Services in civil contempt of court. The Director was found to have not ensured the timely execution of a previous Court Order directing a child, for whom he was also the guardian, be returned to a foster mother.

The decision on the penalty was reserved but the lawyer’s submissions on what would constitute an appropriate penalty for this contempt of court are due today August 4, 2009. A decision as to consequences for the contempt of court should be rendered by Mr. Justice Cote soon. I will do a follow up post on the legal counsel submissions on the penalty later as well as a commentary on the actual penalty imposed by the Court of Appeal in a subsequent post. It is an open question if the Director will face jail time or not.

This is a lengthy and weighty post so make sure you have some time to read it all. The events and implications are very important.

The Background:
In preparation of this commentary I have read the June 23, 2009 Reasons of Mr. Justice Cote in finding Mr. Richard Ouellet, the Director of Child, Youth and Family Enhancement, in civil contempt of court. I also read the July 14, 2009 Reasons for Decision of Cote in rejecting Mr. Ouellet’s Application to Vacate/Vary the Civil Contempt finding against him. I have not read the various affidavits filed in the original or any subsequent court proceedings dealing with the same child. I think there is enough background in these documents to comment on the political and governance implications of this decision. I will not deal with the law or legal reasoning behind Cote’s Reasons for Decision either. The legal reasons are interesting, but they are more like deep background to my purpose, namely the public policy, accountability, transparency and governance implications of this decision.

A brief history of the facts are needed to give you some context behind the decision and for a better understand the public policy, governance and potential political implications of finding a senior civil servant in contempt of court. The child, known as B.M., was removed from a foster home by the Director. His decision was appealed to an Appeal Panel who, according to Cote, apparently gave “fairly extensive written reasons” as to why the child should not have been removed from the foster home. The Director appealed the Appeal Panel decision to the Court of Queen’s Bench. He got a stay of execution of the Appeal Panel decision to return the child and also won a court decision reversing the Appeal Panel. The foster parent then appealed to the Court of Appeal and it was argued in September 2008. On January 30, 2009 the Court of Appeal allowed the appeal and reinstated the original Appeal Panel decision. The time for any further appeal to the Supreme Court has expired.

The foster mother, relying on the final Court of Appeal Decision demanded that the Director return the child to her care but the Director apparently disagreed with this course of action presumably taking the position that the Court Order was subject to another interpretation. The court was not impressed with how the Director responded to the court order. Cote found that between the original Court Order of January 30, 2009 and June 4th, 2009 “…the Director did nothing of any consequence toward obeying the order of the Court of Appeal, or to clarify what it meant and what he was required to do.” Cote noted further, “He and his officials, however, did find the time to take many steps to make it more difficult for the foster mother ultimately to win.”

Counsel for the foster mother did pursue clarification of the court order and on June 4 the Deputy Registrar of the Court of Appeal gave notice in writing to all parties clarifying that the Appeal Court “…judgment meant the child was to be returned.” The child was finally returned on June 22, 2009 almost five months after the original court order and the day before the June 23 Court of Appeal hearing that found the Director to be in contempt of court. The Director, Mr. Ouellet changed legal counsel who sent a letter to the Court of Appeal “…proposing to reopen and upset the contempt conviction…” and a Notice of Motion and an Affidavit to that end was filed by and on behalf of Mr. Ouellet on July 10, 2009. Cote reaffirmed the contempt of court finding against a province of Alberta senior public servant in the conduct of his duties.

What are the Governance and Public Policy Implications?
That is a summary of the facts, so now I will deal with some of the comments and findings of Mr. Justice Cote in his Reasons for Decision that has some serious governance and public policy implications. What follows is a policy commentary on the public policy, good governance, transparency, accountability, legal duty and respect for the law obligations arising from this matter.

Cote nails the point that nobody is above the law and government officials can’t ignore a court ordered public duty when he says [Para 27] “…when a court judgment or order is given directing someone to do something…Then doing nothing is not an alternative. Simply doing nothing in itself is contempt. Furthermore, it is not enough to take feeble and ineffective steps…negligent or inadequate attempts to obey the court order or to obey it in due course are themselves contempt of court.” He says that “…failure to obey by relying carelessly on others is in no sense vicarious liability. The duty is that of the person commanded.” (emphasis added).

In [Para 18] Cote broadens the issue of the legal duty of the public servants involved and brings it to a head when he says “For about 12 days after the contempt motion was filed here (and 18 days after the Court of Appeal clarified its judgment), everyone concerned on the government side was in clear and obvious breach of the Court of Appeal judgment.” (Emphasis added).

In [Para 36] it gets worse noting that Mr. Ouellet “…on June 5 he learned the following. The Court of Appeal decision of January 30 had not yet been obeyed, though the Court of Appeal on June 4 had clarified what should be done. None of the various officials concerned had yet returned the child, and they were still considering legal alternative to returning the child, i.e. trying to see if there was something which they could legally do to avoid returning the child, and in some fuzzy way were balancing the disadvantages of obeying the judgment.” (Emphasis added.)

In [Para 37] Cote also noted that Mr. Ouellet advised his officials “…he was satisfied with the course which they were following. He did not tell them that they could not wiggle out of obeying the order, nor that wasting time looking for alternatives to obedience was wrong. He did not say to return the child. Indeed he told me in open court on June 23 that the officials’ task on June 5 was to balance the conflicting interests of the two foster families and the child…Nor did Mr. Ouellet set any deadlines, nor inquire into how the child would be returned, nor the methods which would be used. He was content to leave it with the debating officials.” [Para 38] “Nor did Mr. Ouellet ask them to report, nor set up any checking or diarization methods. [Para 39] Yet Mr. Ouellet admitted that he had full power to give those other official binding direction, and that he had a duty to act if he saw something wrong, including a court order not obeyed.” [Para 40] “Worst of all, just before the meeting Mr. Ouellet was given a packet of material relating to this problem, but he never read it, whether before or after the meeting.”

Cote sums it all up in [Para 45] “…Mr. Ouellet had no system whatsoever for follow up or supervision or whether court orders against the Director were being obeyed; not even when the litigation had got as high as an appeal to the Court of Appeal. The Court of Appeal judgment was issued January 30, clarified June 4, contempt threatened June 4, formally moved for June 10, and the child was not returned until June 22. Yet throughout that period of almost five months, Mr. Ouellet had no idea whether or when the child had been returned, and did not ask. Apparently no one was supposed to tell him. The last the Mr. Ouellet knew (June 5) was that the child had not been returned, and that whether to return the child was being discussed. He still knew nothing and made no inquires up to June 23.” (Emphasis added)

Not My Duty – Others Are at Fault:
So what was the reasoning the Director offered to the Court of Appeal to believe he deserved to be released from the earlier finding of contempt of court? These representations amount to CYA and passing-the-buck positioning. I paraphrase [Para 54]in saying first the Director tired to allege that other branches of the government, or other entities or people authorized by the government, such as the regional Child and Family Services authorities, were the ones who were actually involved with this child. The contempt order should therefore be vacated because the Court of Appeal erred in holding Mr. Ouellet as responsible to see to the execution of the court order to return the child. This representation was rejected by the court but it obviously has some interesting and serious public policy and governance implications going forward.

The other chilling implication of the position by the Director in saying an appointed government authority, in this case the Child and Family Services Authority, is the delegated body responsible for this child. That “defense” should make those volunteer citizens think hard about what such a tactic might mean to their personal liability in the future. If that responsibility was found to on the regional authorities by the court they would be well advised to think hard about personal liability from serving on such boards. This argument by a civil servant as to ultimate liability for vulnerable citizens has serious implications for other authorities like in the new heath care Super board and the regional boards dealing with Persons with Developmental Disabilities (PDD).

The good news is that Cote slam dunks the Director’s allegation noting the legislation setting up the authorities in question positions them as “agents of the Crown in right of Alberta under the Minister’s direction.” They are not autonomous and the staff of those authorizes actually work for the government. Those citizens who are sitting on other such authorities may want to ensure that the wording of their enabling legislation also protects them from personal liability, duty of care and possible negligence actions.

The Job is Complicated and the Duty was Delegated:
Cote comments starting at [Para 66 to 70] saying that hiding behind administrative structures in the government will not protect the Director from a finding of contempt when he says “Administrative structure is not the same as law.” He notes the “new evidence tendered as to the extremely convoluted and puzzling structure of who is administratively involved with child protection in Alberta….” He goes on to observe that “Mr. Ouellet seems to think that because the people involved on the ground were not reporting directly to him in a functional sense, that the court should ignore that fact that he had full legal and administrative powers…to see to obedience of court orders like the one in question.” In [para70] the attempt to say the Director’s powers can be delegated to various other bodies, such as regional authorities, and that there is some precedent for that to have happened in the form of Memorandum of Understanding and extracts from websites of regional authorities about their role to “oversee the delivery of services.”

Ouellet [Para80] tries to convince the court that in essence all these matters are and were run by Child and Family Service Authorities, independent bodies which he did not supervise, and so he had no connection. Whereas earlier [Para81] his counsel’s submissions on liability was that there are many children in care and Mr. Ouellet could not personally be familiar with every case, and that he delegated responsibility to many people but admitted that “Mr. Ouellet had to make the final determination how to return the child.” The record shows that “Mr. Ouellet was and is the guardian of this child.” OUCH!

The court notes all the employees of those authorities work for the government and the CEOs report both to the Deputy Minister and the boards of the authorities and “ultimately the Minister governs.” As a consequence the court finds “nothing…which would remove the legal powers and duties from the Director, nor take from him any status as guardian which he was formerly given.” In short delegation is not abdication and the Director in this case lost none of his powers and had no legal obstacle to obeying the Court of Appeal judgment.

The Court Ponders if Other Officials be Specifically Named in Future Actions?
The Court of Appeal offered some advice to legal counsels that oppose those child “protection” authourities in the future. Cote suggested that they learn about all the government officials involved in all matters around any such actions and that they all are named in the litigation and that the officials be personally served and that “Some things should not be assumed. Avenues to escape obedience may be undesirable for a time.”

The Court Ponders if Cabinet Minister Immunity Might be Challenged in the Future:
Cote comments on Cabinet Ministers and potential future culpability too in [Para 118] “After this judgment, ignorance or neglect by such officials will be a smaller excuse for disobeying court orders than before. A repetition might lead to litigation over whether those higher ups were not immune.” Would Cabinet Ministers be within the definition of “higher ups?” Could be an issue tried and determined in the next miscarriage of a public duty in the government.

Is There an Attitude Problem in Government?
Cote says [Para 113] “Her Majesty’s government of Alberta, in my 42 years’ experience, has not been in the habit of hiding identities, equivocating, nor evading court orders against it…[Para 114]But the present case raises doubts about whether everyone in the child protection parts of the government now shares those high standards, or even fully understands court orders. The complex administrative structures suggested by the evidence here must exacerbate opacity and the opportunities for deniability. [Emphasis added]

[Para 115] The government is established under the Constitution to administer the law, including the law about children. Counsel have become used to relying upon the government’s trustworthiness and fairness in obeying court orders. That should remain possible…The government’s obedience to court orders should be and be seen to be willing, prompt and automatic, not strained through the mesh of contempt motions.” [Para 116] Any contempt of court which included shuffling off responsibility to obey a court order amongst different official (at times like the dried pea under three walnut shells) would be almost unprecedented.” OUCH AGAIN!

[Para 117] “It is highly undesirable that the courts and the Bar of Alberta even contemplate having to assume all the burden of enforcing court orders in child protection cases. After all, the parents or foster parents often lack resources and rely on Legal Aid. So taxpayers would suffer too if government were to play as game of hide-an-go-seek.” Cote therefore notes that quite possibly many more individuals involved in the case day-to-day, given the disobedience was lengthy and undeniable, and may also be guilty of contempt. So he invites the Alberta Attorney General to follow up with further investigation and to make sure they know about this decision(sic) he directed the Deputy Registrar of the court to “…send a copy of these Reasons to the Minister of Children and Youth Services, and to the Minister of Justice and Attorney-General of Alberta.

There is an active review of the governance of agencies, boards and commissions in the Alberta government directly tied to the Premier’s office. Perhaps that review must be extended into the governance and accountability of some key departments. I have some strong suggestions to make as to which departments could use some house cleaning and a serious accountability focus based on some of the work I do.

If this behaviour by government administration is left without comment, concern or consequence by our political leadership then I wonder about their character and capacity. I question if they are worthy of our consent to be governed by them. Good governance is always good politics. The reverse happens too but it is the exception.

The court has commented clearly and forcefully already but just as administrative process is not the law, neither is the judiciary there to run our government. We need our lawmakers and those government officials who serve the public interest to reaffirm, in all actions and deeds, that they are not be above the law. We need a strong political statement form all those who govern us that any disrespect of the law, from the very top to the very bottom of our entire governance structure, will result in harsh consequences. If our government fails, refuses or neglects to reassure Albertans in this way, then Albertans have to engage and reassure our government that such an attitude will not be tolerated - and at the ballot box if necessary.

9 comments:

  1. A Worker9:50 pm

    But is not politics all about creating oportunities for deniability through the creation of complex administrative structures? Perhaps when Child Welfare stops being so political we might see more emphasis on sound operational practices.

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  2. Anonymous1:46 pm

    I agree with A worker. Child protection is a hard enough job as it is, without the continuous scrutiny and criticism in the public arena which drives politicization of an essential societal service- trying to keep kids safe. .Having said that, I absolutely agree that public accountability is important. If the provincial role in a practical sense (if not in a legal sense) with CFSAs being part of the system is one of policy,standard and process creation and ensuring oversight and compliance processes are in place then it is clear in this case that compliance was lacking.

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  3. I often wonder if these regional authorities are not just buffers to protect Ministers from the citizens and a place where the administration can park and dispurse issues instead of resolving them.

    Not sure they ever give Minister's advice directly on local concerns because the system is too obtuse with CEO responsible both to the Boards and the Department.

    It is not an effective political, governance or adminstrative model because it mixes all three approaches up into a dog's breakfast.

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  4. Fay Orr, Deputy Minister, Alberta Children and Youth Services9:00 am

    Mr. Chapman highlights how important it is for government to respond quickly and appropriately to this contempt of court ruling by the Alberta Court of Appeal.

    Alberta Children and Youth Services wants to make sure that readers of this blog are aware of action that was taken by the ministry immediately following the ruling, to ensure immediate compliance with court orders will always happen in the future.

    A directive was issued to child intervention workers in the ministry right after the original contempt finding on June 23, to reinforce the absolute importance of making sure court orders are complied within an acceptable timeframe. This zero tolerance policy for non-compliance was reaffirmed with staff following the written decision on July 23.

    The Director of the Child, Youth and Family Enhancement Act was also removed from his position immediately following the original contempt finding.

    Additionally, Children and Youth Services and Justice and Attorney General are now jointly reviewing how court orders are handled. This review has been underway since the original contempt finding.

    We would also like readers of this blog to know that this matter did not return to court on July 23 at the request of our ministry. The director acted on his own to ask the court to reconsider its finding, and our ministry did not take a position when the matter was brought back to court by the director’s lawyer.

    Children and Youth Services wants to assure readers of this blog that delay in compliance with court orders is the exception, and swift action has been and continues to be taken to continually improve, by making sure there are no such exceptions in the future.

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  5. Thx for the Comment Fay and information on the clarification and follow up steps taken by Alberta Children and Youth Services on the Court of Appeal contempt of court decisions.

    I expected the former Director was acting on his own behalf and not throught the GOA in the July application to vacate or vary the original contempt of court order. I presumed that since he changed to outside legal counsel but it is important to know that as a fact.

    You use two very significant words in your comment, “assure” and “ensure.” Citizens are entitled to know that they can be assured that their government is doing everything practicable to ensure our societal obligations to vulnerable and dependent citizens are being met.

    The larger concern is if the corporate and management culture in these social service departments is so bad that the people can't do their jobs. The facts about how this part of the department was run as outlined in the court decision point to the possibility of a more profound and systemic problem.

    I hope the Ministry and the Department continues to communicate openly and transparently with the public. We need to know about any further steps being taken to continue to assure and ensure the public that real change is happening.

    Our record as a province in child welfare matters is spotty at best. Granted these are always complicated, emotional and stressful situations. But that only means we need our best, brightest, most capable and compassionate people dealing with these kids and that they have enough resources to do the best job they can.

    In addition we need in a caring and capable corporate culture in the social services departments especially in Children and Youth Services and also Seniors and Community Services. One truly has to wonder if that is the case now.

    Albertans will now need much more assurance and much more proof to be convinced that the governance and service delivery systems are truly intent and capable of ensuring that our government is meeting our collective societal duty to our most vulnerable citizens.

    For the record, I have known Fay Orr for many years and consider her to be a good friend.

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  6. Ken Chapman's analysis of Justice Cote's decision raises a variety of accountability questions that remain to be answered, hopefully in part by the Ministry of Justice and Attorney General's review requested by Justice Cote. However should such a review take place what are the chances of the review being made public? Fay Orr, the Deputy Minister for Children and Youth Services attempts to absolve the Ministry of any blame by jettisonning/scapegoating Director Ouelette as being solely responsible for the decision to ignore the court order to return the foster child. However Justice Cote in his judgement remarks doesn't support the single smoking gun/acting alone theory. Where does the buck stop? Who is ultimately responsible for decisions made within a Ministry. To what extent, if any, does the responsibility extend beyond the Ministry? Premier Stelmach promised a more transparent and accountable government. He not only appoints the ministers but in a highly publicized fashion sets out their assignments/expectations. For the sake of accountability there must also be an equally public evaluation process of his chosen minister's completion of the assignments or the whole homework posting process is a political sham. If Director Ouelette's misdeeds were an anomale, the only example, rather than the latest in a series of Children and Youth Services Ministry missteps, one might be tempted to give the Ministry and the Minister the benefit of the doubt but this is not the case. On almost a weekly and certainly a monthly basis, Albertans have received the news of children in the care of the Ministry either being killed or allegedly killing. The death toll to date for this year is six too many. Are Justice's Cote's concerns just the tip of the iceberg in the revelation of a dysfunctional ministry? Who is ultimately responsible for the well being of vulnerable children apprehended by the Ministry of Children and Youth Services? Will the Atorney General follow up on Justice Cote's request for accountability or if the review occurs will it just be one more in a series of internal government shelved reviews which never see the public light of day. Ken Chapman, in analysing Justice Cote's decision, has raised several questions of accountability which remain to be addressed. Who's responsible for answering them? When can Albertans expect to receive the answers? How many more children and family lives will be compromised or lost in the interval before decisive remedial action takes place.
    Harry Chase
    MLA for Calgary Varsity
    Liberal Critic for Children and Youth Services

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  7. I RECEIVED THE FOLLOWING IN AN E-MAIL FROM AN ANONYMOUS PERSON. I FOLLOWED UP AND HAVE THEIR PERMISSION TO PUT THE E-MAIL IN AS A COMMENT - KJC

    "I am a frontline child welfare worker and I absolutely agree with my Deputys statement that the facts surrounding the recent contempt conviction was an exception, not the rule.
    Having said this I have read Justice Cote's decision several times and was struck by his conclusions and how close they come to my experience on the job.

    I have seen countless folks get promoted and tell me they wanted to get away from the front line because they thought that was where all the responsibility lay. I get ordered to do things on my cases, and when I ask for it in writing, I am told it came from higher up (no names provided) and just do it or face discipline for not doing what I am told.

    We are already cutting back, and have to face regular Albertans by ourselves to explain why they can't get a service the used to receive and our superiors complain that we are not doing our job when we invite those we come in contact with to call our boss when they are not satisfied with our explanation.

    We have no internal procedures or policy in place to deal with complaints or other concerns as a result of internal decision-making. I think the issue surrounding the disclosure in child care about the old and new forms in subsidy assessments is a case in point.

    Minutes of meetings are whitewashed and not a true reflection of the debate or disagreement that sometimes occur at such meetings.

    We raise concerns and the response is usually we hear you, or have not talked with the right person, or outright silence.

    We are typically directed in subtle ways, in our day to day work, that sometimes takes the form of harassment or innuendo. When these concerns are brought forward we are told we are the problem and perhaps are bunt out.

    You better believe we need good governance, but all we get is bad politics.

    The statements about equivocation, and ". . .complex administrative structures suggested by the evidence here must exacerbate opacity and the opportunities for deniability." cuts close to the many frustrations I and my co-workers experience in this job.
    In good sprit I would like to challenge the Deputy to deal with the broader observations in Justice Cotes decision."

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  8. Anonymous8:30 am

    As a previous kinship foster and adoptive parent, i think at time the director has too much power and control. We had a relative in our care make allegations, and even the younger adopted sibling was given the okay not to return home while the the investigation was happening. He was allowed to return to the birth mother's home eventually along with the foster child. I regret today that I did not have a lawyer intervene, perhaps this would have prevented the breakup of our family. The two adopted brothers have since apologised to us for agreeing with the lies of their foster sibling.

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  9. What do these have in common?
    Goldman Sachs. The Catholic Church. Alberta Finance Department.

    They each have proven that they will “protect their own interests” before protecting the public.

    I have now heard from Alberta Finance Minister Ted Morton.   He will not answer questions on the practice of letting investment firms violate our laws.  It is strange to see a public servant stand on the side of financially abusive practices and secrecy.

    Despite $32 billion missing from the Canadian economy using legal tricks. (ABCP toxic investments)  Despite mutual fund companies which put billions into their own pockets at the expense of the public.  Despite several investor suicides, by people who have been damaged by illegal investments “approved” by our securities commissioners.

    Provincial securities commissions have done thousands of back-room deals without notice to the public.  Deals that give investment sellers “permission” to ignore our laws that protect investors. Strange to think that this is how our securities commissioners get paid. Can you imagine a police force that got paid by selling permission slips to skirt the law?

    The finance minister refuses to answer.  This speaks volumes about what he is hiding. Or who he is taking his “advice” from.  I suspect he gets his advice from persons earning $500,000 salaries at the Securities Commission.   The Ontario Legislature recently chastised it's securities commission for failing to protect the public interest.  Alberta Finance is years behind in protecting the public. But they are fine at protecting themselves.

    The questions are:

    “What public interest is served by giving investment firms permission to sell products that do not meet our laws?”

    “If there is a legitimate public interest, then why are the deals done in secret, without notice to consumers of the investments, and without public disclosure?”

    If there are legitimate reasons then the questions are easy.  If there is something to hide, then they become more difficult.  Mr. Morton, why are you hiding?

    With no explanation, I conclude that our investment industry is getting away with the financial murder of our economy. Some prefer to call it financial rape. I call it legalized financial abuse and it is in the order of billions. They are riding on a perfect wave of self regulation, corruption, connections and cronyism. Mr. Finance Minister, what are you gaining by supporting these practices?

    For Alberta Finance to hide this is a breach of trust.  Write a note and see if they can answer.  Then write me a note and myself and Citizens For Better Governance will track the answers. lelford@shaw.ca
    Larry Elford (former CFP, CIM, FCSI, Associate Portfolio Manager, retired)

    Lethbridge AB T1J 1N3
    403 328-0391
    Founder of www.investoradvocates.ca

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