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Protecting Children is Paramount: Rights of Access under the Child, Youth and Family Services Act

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The Information and Privacy Commissioner of Ontario has released its first decision related to services provided under Ontario’s Child, Youth and Family Services Act (the “Act”). The decision relates to a request for access to records under Part X of the Act.

Background: The Children’s Aid Society of Toronto (CAST) had two reports in its records about a child who may have been in need of protection. The reports named one of the child’s teachers. The teacher sought access to the records in order to use them in a dispute with their employer (the school board).

CAST refused the request on the basis that the Act provides a right of access to personal information held by a service provider in records of service only and when the requestor is the person who was the recipient of the service. It determined that no services were ultimately provided and even if they had been, the teacher would not have been the recipient of the services and therefore did not have a right of access.

The IPC examined the definition of “service” in the Act and concluded that the language reflected service provided to a child or their family. This conclusion is consistent with the broader purpose of the Act, which is to promote the best interests, protection and well-being of children. Indeed, granting a right of access to a teacher who was an alleged perpetrator of harm to the child would not be consistent with the purposes of the Act.

Take Aways:

  1. Under the CYFSA, individuals who are named in records may not have access to those records if no service was provided or if they are not recipient of service.
  2. CYFSA access rights are different from those in PHIPA in 2 major ways:
    1. under PHIPA, anyone can ask for records of information that a provider holds about them, regardless of whether those records are tied to services provided and regardless of whether the requestor is the individual who received services from the provider; and
    2. under PHIPA access is one of the key purposes of the legislation, while under the CYFSA child protection and well-being is paramount

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