Date: 19980112
Docket: A970167
Registry: Vancouver
IN THE SUPREME COURT OF BRITISH COLUMBIA
IN THE MATTER OF THE JUDICIAL REVIEW PROCEDURE
ACT, R.S.B.C. 1979, c. 209
AND
IN THE MATTER OF THE COMMISSION OF INQUIRY INTO
THE ADEQUACY OF THE SERVICES POLICIES AND PRACTICES OF THE MINISTRY OF
SOCIAL SERVICES AS THEY RELATE TO THE APPARENT NEGLECT, ABUSE AND DEATH
OF MATTHEW JOHN VAUDREUIL, PURSUANT TO ORDER IN COUNCIL 0692, APPROVED
AND ORDERED MAY 19, 1994 ("THE GOVE INQUIRY")
BETWEEN:
JOYCE RIGAUX
PETITIONER
AND:
THE HONOURABLE JUDGE THOMAS J. GOVE,
Commissioner of the inquiry into the adequacy of the services, policies,
and practices of the Ministry of Social Services as they relate to the
apparent neglect, abuse and death of Matthew John Vaudreuil ATTORNEY
GENERAL OF BRITISH COLUMBIA
RESPONDENTS
REASONS FOR JUDGMENT OF THE
HONOURABLE MADAM JUSTICE ALLAN
Counsel for the Petitioner Rigaux: R.H.
Hamilton; H.E. Maconachie
Counsel for the Respondent Gove: L.T. Doust,
Q.C.
Counsel for the Attorney General: G.H. Copley, Q.C. Place and Date
of Hearing: Vancouver, B.C. October 6-10, 1997
[1] Few people in British Columbia are unaware
of the tragedy of Matthew Vaudreuil's brief life, ending in his death at
age five at the hands of his mother. As a result of widespread media
coverage since July 1992, images of Matthew have become synonymous with
child abuse and neglect.
[2] On May 18, 1994, by Order in Council, Judge
Thomas J. Gove was appointed Commissioner to inquire into, report and
make recommendations on the adequacy of services and the policies and
practices of the Ministry of Social Services ("the Ministry")
in certain specified areas as they related to Matthew ("the Gove
Inquiry"). The two volume Report of the Gove Inquiry into Child
Protection ("the Report") entitled "Matthew's Story"
and "Matthew's Legacy" was released in November 1995. It was
highly publicized and widely circulated. The Report was critical of the
petitioner, Ms. Rigaux, who was Superintendent of Family and Child
Services in British Columbia ("the Superintendent") between
March 30, 1992 and January 1995.
RELIEF SOUGHT:
[3] In this petition, Ms. Rigaux seeks a
declaration that the Gove Inquiry violated her procedural rights and an
order that the 30 page chapter entitled "What the Ministry did
after Matthew Died", which contains findings adverse to her, be
quashed. Counsel for the petitioner submits that this remedy will help
repair the damage to Ms. Rigaux's reputation; it may assist her to
defend disciplinary proceedings commenced against her by the Board of
Registration for Social Workers of British Columbia; and it will prevent
injustices in future inquiries.
ISSUES:
[4] The petition raises several issues:
Jurisdiction: (1) Was a consideration of the Superintendent's Review
which led to the adverse findings against Ms. Rigaux within the mandate
of the Gove Inquiry? (2) Did Commissioner Gove make findings of
misconduct against Ms. Rigaux? If so, was it within his mandate to do
so? Was he required to give the petitioner reasonable notice and an
opportunity to respond? Were his findings based on evidence that had
some probative value? Judicial Review: (3) What is the appropriate
standard of review for an inquiry under the Inquiry Act? (4) Do the
Commissioner's impugned findings meet that standard? Fairness: (5) Was
the petitioner treated fairly? FACTS:
[5] Matthew died on July 9, 1992 following an
abysmal pattern of neglect and abuse during the five years of his life.
His mother, Verna Vaudreuil, pled guilty to manslaughter in the spring
of 1994.
[6] The petitioner was appointed Superintendent
commencing March 30, 1992. Pursuant to the Family and Child Service Act,
S.B.C. 1980, c. 11, (the Act in place at the time of her appointment),
all social workers carry out their responsibilities under authority
delegated by the Superintendent.
[7] Ministry policy required that the
Superintendent review the circumstances of a suspicious or unusual death
of a child "in care" or "known to the Ministry" and
refer the case to the Audit Review Division, formerly the Inspections
and Standards Unit ("ISU/ARD") for a full, independent review.
Commissioner Gove described the purpose of ISU/ARD reviews according to
a 1993 policy statement: ... to improve service delivery to ministry
clients and to contribute to the evaluation of child welfare practice
and programs, as well as to meet the need for public accountability.
[8] Commissioner Gove noted that in the usual
course of an ISU/ARD review, an inspector examines the relevant case
files, interviews staff and other people involved in the case, and
prepares a written report which is then canvassed with the field. The
report, which either contains the joint conclusions and recommendations
of the inspector and the field staff or the divergent views, is sent to
the superintendent.
[9] In this case, Ms. Knox, an ISU/ARD
inspector conducted a preliminary file review and prepared a chronology
in July 1992. She met with the Superintendent who told her not to
proceed at that time. Commissioner Gove was critical of Ms. Rigaux's
failure to proceed with a review before 1994 and her motivation and
priorities when she did order the Superintendent's Review on March 3,
1994, almost two years after Matthew's death. He concluded that the
petitioner's decision to order the review "was motivated primarily
by a desire to control damage to the ministry and its employees."
He stated that the priority of the petitioner and other (unnamed)
Ministry employees who participated in the decision "was not
Matthew and the implications of what had happened to him for other
children in the province."
[10] The Superintendent was designated by, and
reported to, the Minister of Social Services. In late April 1994, the
Honourable Joy McPhail (the "Minister"), announced that the
Superintendent's Review would be tabled in the Legislature and made
public. This was the first time that a superintendent's review had been
made public.
[11] The petitioner saw Inspector Orla
Petersen's first draft of the Superintendent's Review on May 9, 1994. It
was not complete and had not been circulated to field staff. The
petitioner directed that certain changes be made to the draft. Mr.
Petersen and Ms. Bitschy, the Acting Director of ISU/ARD, prepared a
second draft. Ms. Bitschy prepared the third draft on the basis of her
conversations with the petitioner. After that, further drafts were
subjected to advice regarding legal issues and plain language, comments
from the Ministry's Freedom of Information and Protection of Privacy
Office and advice from the Ministry's Communications Division.
[12] Ms. Rigaux, as Superintendent, had
ultimate responsibility for the final version of the Superintendent's
Review. She directed substantial changes in the knowledge that this
Review would be made public. It is those changes, the circumstances
surrounding them, and her decision not to conduct a review earlier, that
led to the findings of Commissioner Gove which are in issue. On May 17,
1994, the Minister tabled the Superintendent's Review in the
legislature.
[13] Two days later, on May 19, 1994,
Commissioner Gove was appointed sole Commissioner to inquire into,
report and make recommendations on the adequacy of services and the
policies and practices of the Ministry respecting four specific areas as
they related to Matthew. Commissioner Gove was appointed by an Order of
the Lieutenant Governor in Council under s. 8, Part 2 of the Inquiry
Act, R.S.B.C. 1979, c. 198. The Terms of Reference of the Inquiry
attached to the Order in Council were: 1. To inquire, report and make
recommendations on the adequacy of services, and the policies and
practices, including training and workload, of the Ministry of Social
Services respecting - receipt and investigation of reports that a child
is in need of protection, - decision making concerning provision of
services to the child and the child's family, - case management,
monitoring and termination of these services, and, - case co-ordination
and documentation and sharing of information on the case, within the
Ministry and among the ministries, professionals and agencies having
contact with the family as they relate to the apparent neglect and
abuse, and the death, of Matthew Vaudreuil. 2. To make the report under
section 1 in a form lawful for release to the public as soon as
practicable and state in the report the legal limitations, if any, on
publication or disclosure of information that governed the preparation
of the report.
[14] The Inquiry itself consisted of two parts.
Part I gathered evidence from those involved with Matthew and his mother
and evidence relating to the Superintendent's Review and the management
of the Ministry's child protection service. Part II gathered evidence
from members of the public, social workers and community organizations
with respect to their concerns and recommendations for change.
[15] During Part I, Commissioner Gove held
public hearings in which 113 witnesses gave sworn testimony over 41
days. He then held six days of hearings to receive evidence from
Ministry personnel responsible for policy development and from the
Ministry's senior managers responsible for child protection policy and
management of child protection services.
[16] The Ministry, twelve doctors and Ms.
Vaudreuil applied for and were granted standing. Standing included the
right to be represented by counsel, to cross examine witnesses, to call
evidence and to file documents. The petitioner did not apply for
standing and she was not represented by counsel. Counsel for the
Ministry, Ms. Jane Morley, who represented the Ministry and its
employees, did not represent the petitioner personally.
[17] Before the hearings commenced, an issue
arose as to whether the social workers involved in Matthew's life
required individual representation or union representation in case
disciplinary issues arose. Ms. Morley, concerned that there might be a
conflict of interest between the interests of the Ministry and its
employees, asked commission counsel to advise her if he became aware of
any evidence that would suggest the need for separate representation.
[18] Commissioner Gove stated that the inquiry
would be a public inquiry but made a ruling, over Ms. Morley's
objections, which excluded certain witnesses, including the petitioner,
from attending the hearings. Mr. Petersen was permitted to be present
throughout as a representative of the Ministry.
[19] Witnesses testified at the Inquiry under
oath and in public. Documents were filed as exhibits. These procedures
gave the inquiry a quasi-judicial flavour. Indeed, with respect to the
Part I hearings, Commissioner Gove stated: "There can be no
question that what I was conducting was, in fact, a quasi-judicial
proceeding."
[20] The petitioner was interviewed on August
16, 1994 and October 19, 1994 in the presence of Ms. Morley. She
testified at the hearings on November 16 and November 17, 1994. In these
proceedings, she complains that no allegations of wrongdoing were put to
her.
[21] The Report was released in November 1995.
The chapter entitled "What the Ministry did after Matthew
Died" is described in Commissioner Gove's words as "what the
ministry and the Superintendent did from the day Matthew died until the
day the Superintendent's Review was tabled in the Legislative
Assembly." It was extremely critical of the petitioner and the
changes she made to Mr. Petersen's initial draft of the Superintendent's
Review.
[22] This petition was filed January 20, 1997.
JURISDICTION: Was a Consideration of the Superintendent's Review within
the Mandate of the Gove Inquiry?
[23] In The Canadian Red Cross Society et al.
v. The Honourable Horace Krever (1997), 151 D.L.R. (4th) 1 (S.C.C.) at
p. 13, Mr. Justice Cory noted that commissions of inquiry in Canada
"have frequently played a key role in the investigation of
tragedies and made a great many helpful recommendations aimed at
rectifying dangerous situations." On the other hand, he recognized
that an inquiry's roles of investigation and educating the public should
not be fulfilled at the expense of the denial of the rights of those
being investigated . . . no matter how important the work of an inquiry
may be, it cannot be achieved at the expense of the fundamental right of
each citizen to be treated fairly. (p. 14)
[24] Because public inquiries are generally
high-profile, they receive intensive media coverage. Such publicity
assists in satisfying one of the objectives of such an inquiry:
education of the public. However, the risk of damage to reputations and
careers in a public forum which lacks the institutional protections of
judicial proceedings highlights the importance of procedural safeguards
to protect individual rights.
[25] It is a fundamental principle of inquiries
that a commissioner's jurisdiction is circumscribed by the terms of
reference found in the governing statute and the instrument of
appointment. Even if he or she has the noblest of motives, a
commissioner has no discretion to exceed or extend those terms of
reference. In this case, Commissioner Gove's mandate was set out in the
Order in Council appointing him "to inquire into and report on the
matters and in the manner set out in the attached Terms of
Reference." The Terms of Reference of the Inquiry attached to the
Order in Council, cited above, were very specific. They clearly relate
to events preceding Matthew's death. They simply do not bear a
construction which would include an investigation into the preparation
of the Superintendent's Review commencing on March 3, 1994, almost two
years after Matthew's death.
[26] I am unable to accept Mr. Doust's
contention that the Gove Inquiry's mandate extended to "making
recommendations about the Ministry's services, policies and practices
generally as they arose from the findings in the case of Matthew
Vaudreuil." It is true that the Ministry's involvement with
Matthew's case continued after his death in the form of the
Superintendent's Review. However, the Terms of Reference did not empower
the Commissioner to inquire, report and make recommendations on the
adequacy of services and the policies and practices of the Ministry
generally. They specifically restricted him to four areas of
investigation: the Ministry's services, policies and procedures
respecting (1) receiving and investigating reports that a child is in
need of protection; (2) decision making concerning provision of services
to the child and the child's family; (3) case management, monitoring and
termination of those services; and (4) case co-ordination and
documentation and sharing of information on the case. All of those
activities were completed (or, as the Inquiry found in Matthew's case,
not completed or not completed satisfactorily) prior to the commencement
of the Superintendent's Review. The "monitoring" referred to
clearly relates to the services provided to the child and his or her
family, not a "monitoring" of the Ministry's activity or
inactivity two years after the event. The Review is not "a service
to the child or child's family." The preparation of the post-death
Superintendent's Review or "monitoring" of the Ministry's
earlier procedures is not encompassed by the areas of investigation
articulated in the Terms of Reference.
[27] Before the resumption of the Inquiry's
hearings on November 7, 1994 to hear evidence with respect to the issue
of the Superintendent's Review, the Ministry of the Attorney General
objected that the proposed line of inquiry was not relevant to the
Commission's mandate. However, prior to the hearings, counsel for the
Attorney General advised: The view of the Ministry remains that the
Superintendent's Review in general, and enquiries respecting the
evolution from draft 2 to the final draft filed in the Legislature in
particular, are irrelevant and outside of the Terms of Reference upon
which the jurisdiction of the Commission is based. Our concerns
respecting privilege, relevancy and jurisdiction are waived in this
instance without prejudice to our right to raise these matters in the
future.
[28] Counsel for the Attorney General made no
submissions on this issue at the judicial review proceedings. Mr. Doust
submits that it is significant that counsel for the Ministry waived its
initial objection to the jurisdiction of the Commission to inquire into
the Superintendent's Review. I disagree. The jurisdiction of a
Commissioner cannot be extended by consent of any of the participants.
It could have been extended by a further order in council expanding the
mandate of the Inquiry; it was not.
[29] Commissioner Gove considered the
Ministry's review process to be "a critically important quality
assurance function" because "if mistakes were made which
contributed to a child's death or injury, the review process should
enable the ministry to learn from its mistakes so that children will be
better protected in the future." Mr. Doust submits that an inquiry
into the Ministry's review mechanisms to prevent future tragedies and to
assess whether the Superintendent's Review assisted the Ministry and the
public in learning from Matthew's tragedy was an appropriate part of
Commissioner Gove's mandate. Nonetheless, noble or honourable motives
cannot bestow jurisdiction. The Order in Council could have specified a
fifth consideration for investigation: " - reviewing its procedures
when a child in care or known to the ministry dies or is seriously
injured [i.e., conducting a Superintendent's Review]." It did not.
The Commissioner could have sought an extension of his mandate from the
Lieutenant Governor to bring this specific Review within his purview. He
did not.
[30] Virtually all of the chapter entitled
"What the Ministry did after Matthew Died" was beyond the
jurisdiction of the Gove Inquiry. However, it does not necessarily
follow that the petitioner is entitled to the relief she seeks. The
second issue to be determined is whether Commissioner Gove made
consequential findings of misconduct against her or simply "errors
of judgment". Did Commissioner Gove Make Findings of Misconduct
against the Petitioner?
[31] The chapter entitled "What the
Ministry did after Matthew Died" contains the following findings:
... Rigaux forcefully defended the view that she, as superintendent, had
the right to make changes to ISU/ARD inspectors' reports. Her position
on this issue was a complete reversal of earlier ministry practice. . .
. In fact, it is inappropriate for someone other than the inspector who
did the investigation to make substantive changes to a death review
report. . . . It is even more troubling that the superintendent would
presume to decide that the report should focus on themes rather than
individual culpability. . . . Joyce Rigaux eliminated all of Petersen's
statements that were critical of the Ministry of Social Service. . . .
Rigaux downplayed or removed references to poor social work practice by
ministry employees in Matthew's case. . . . Rigaux twice reversed
Petersen's findings. . . . Rigaux misrepresented Petersen's findings.
This meant the superintendent . . . took Peterson's statement that
ministry social workers had enough evidence of abuse and neglect to
justify apprehending Matthew under the Family and Child Service Act, and
twisted it into a contradictory statement that the Act limited the
ability to respond to high-risk cases of neglect and that this
contributed to Matthew's death. . . . The report of Matthew's life and
death that the Legislature and the public saw was an attempt to obscure
inadequate practice by ministry social workers, and to shift blame away
from the Ministry of Social Services. . . . Rigaux, as superintendent,
should have been at the front of the line pushing for improvements in
the child protection system to better protect "her" children.
Tragically, she was not. Instead of putting children first, she put the
ministry first. The one who should have stayed outside the
"system" became the consummate insider. . . . There was, in
this case, a blatant conflict of interest between the interests of the
ministry and the interests of children as represented by Joyce Rigaux
and her staff. . . . Joyce Rigaux ... render[ed] ineffective the role of
ISU/ARD in independently reviewing children's deaths and injuries.
[32] Mr. Copley submits that those descriptions
of Ms. Rigaux's conduct constituted errors in judgment rather than
findings of misconduct. Mr. Doust submits that findings of misconduct
may be appropriate to fulfil the mandate of an inquiry and, in this
case, Commissioner Gove was entitled to be critical of the petitioner.
He characterizes the focus of the Commissioner's criticism on the
petitioner as the holder of the office of Superintendent rather than as
a personal attack. Mr. Doust further submits that the findings critical
of the petitioner have no legal consequences.
[33] A definition of the word
"misconduct" in the abstract is elusive: is it conduct which
would lead to civil or criminal proceedings? Does misconduct encompass
damage to reputation? In the case of the Krever Commission, the
provisions of the relevant Act expressly gave Mr. Justice Krever
jurisdiction to make findings of "misconduct". In Krever,
supra, at p. 18, Mr. Justice Cory utilized the definition of misconduct
in the Concise Oxford Dictionary (8th ed. 1990): "improper or
unprofessional behaviour" or "bad management." That is
the applicable definition in this case. Cory J. stated that where harm
to a person's reputation will result from the factual findings which are
clearly within the commissioner's jurisdiction, there is no reason to
prevent the commissioner from drawing the appropriate evaluations or
conclusions which flow from those facts. However, he also noted that
findings of misconduct should be made only where they are required to
carry out the mandate of the inquiry.
[34] In this case, I find that the criticisms
of the petitioner's involvement in the Superintendent's Review
constituted findings of misconduct which have been detrimental to her
career and reputation. As the investigation of the Superintendent's
Review was beyond the mandate of the Inquiry, it follows that those
findings of misconduct were outside Commissioner Gove's jurisdiction.
[35] Having found that Commissioner Gove lacked
jurisdiction to investigate the Superintendent's Review and that, in the
course of that investigation, he made findings of misconduct against Ms.
Rigaux, it is unnecessary to consider the further issues of whether he
was obligated by statute or common law to give notice of those intended
findings and whether she did, in effect, have notice. It is also
unnecessary to articulate the relevant standard of review of the
findings of such a commission of inquiry or determine whether Ms. Rigaux
received the appropriate degree of procedural fairness. In view of the
findings I have made, any judicial determination on these further issues
would be obiter dicta and of no assistance to the development of the law
in these uncharted waters.
[36] I do, however, venture to comment
generally that inquiries in British Columbia are hampered by the
unwieldy structure of the Inquiry Act which is a single statute
comprised of two ancient acts which were merged sometime after 1960:
Part I of the present Act is the Departmental Inquiries Act, S.B.C.
1926- 27; Part II is the Public Inquiries Act, S.B.C. 1872. The powers,
duties, and statutory protections of commissioners differ greatly
according to whether they were appointed under Part I or Part II. While
the focus of the inquiry in Parts I and II is very different, it is
questionable that the disparate procedures set out in each part are
justified. For example, Part I which specifies that a commissioner can
inquire into the conduct of a person, requires that any person against
whom a charge is made in the course of an inquiry, is to be represented
by counsel; no report can be made against a person until he or she has
been given reasonable notice of "the charge of misconduct"
alleged against them and has been given full opportunity to be heard in
person or by counsel. Part II, which governed the Gove Inquiry, does not
contemplate findings of misconduct and provides no procedural
protections in the event that such findings are made. One important
question, which was argued but must remain unanswered in these reasons,
is whether it is open to a Commissioner to make findings of misconduct
in a Part II inquiry; if so, do the statutory protections of notice,
counsel and the right to be heard contained in Part I apply or, in the
alternative, are common law principles or Charter rights available? A
revision of the Act would eliminate these foreseeable difficulties.
Conclusion:
[37] I conclude that Ms. Rigaux is entitled to
an order that the 30-page chapter entitled "What the Ministry did
after Matthew Died" be quashed and that the findings adverse to her
therein be set aside. Counsel may address the issue of costs at a
mutually convenient date.
"Allan, J."
