Former Board Decisions

Summary of Community Care Facilities Appeal Board Decisions
(1993 – 2003)

1. Family Day Care – Kamloops

Refusal to issue licence

Two allegations of fondling against appellant’s son; incidents not in daycare; no criminal charges regarding first incident; found not guilty in second incident; issue: whether children exposed to unacceptable risk ; appellant acknowledged it was not unreasonable for licensing authorities to be concerned.

Dismissed: 1994; appellant could not provide necessary guarantees that children in her care would be afforded the protection required under Regulation.

2. Adult Specialized Care – Salmon Arm

Refusal to issue licence

Four grounds of appeal:

•  issued interim permit rather than permanent licence: abandoned

•  seeking approval to provide care for 5 residents rather than 3: dismissed – no information provided regarding intention to seek approval for 5; appellant can apply to licensing office

•  requirement for appellant to take upgrading courses: withdrawn; appellant not required to take courses

•  requirement for names of residents on permit: requirement withdrawn (December 1993)

3. Family Day Care – Penticton

Refusal to issue licence

Complaints that permit holder’s husband threatening parents of children; applicant’s spouse had criminal record for assaults, shoplifting, and harassment.

Dismissed: August 1994; unacceptable risk present to children; no appropriate resources to support licensee; significant that despite warning, a pattern of harassing behaviour continued during the pursuit of the licence; applicant and husband unwilling to accept responsibility for their behaviour.

4. Family Day Care – Abbotsford

Refusal to issue licence

Concerns of licensing included appropriateness of training and experience, location of medications, discipline, nutrition, cleanliness of facility, emotional development atmosphere.

Dismissed: May 1994; although appellant had attempted to respond in a limited manner to modify her attitudes and to improve her knowledge through further training, and to comply with specific recommendations made by the Licensing Officers, it was apparent that she had not succeeded (nor did the panel feel she was capable of succeeding) to the point where the health, safety, spirit, dignity and individuality of the children in care could be guaranteed.

5. Family Day Care – Maple Ridge

Cancellation of licence

Preliminary issue: whether hearings should be by way of ‘hearing de novo’ or ‘pure appeal’; no transcript of previous hearing; hearing adjourned for judicial review of this issue; decision of S.C.: jurisdiction limited to ‘pure appeal’ (Kucher v. Benson January 23, 1995, unreported, B.C.S.C.)
Hearing: preliminary issue: breach of natural justice because no procedural rules and record inadequate. Dismissed: appellant not prejudiced by lack of procedural rules ; appellant well aware of case she had to meet.

Dismissed: April 1995; record, including several hundred pages of documentary evidence, report of Medical Health Officer and licensing officers, lengthy and detailed decision of Director of Licensing and notes taken by the Director of Licensing at the hearing constitutes an adequate record; ample evidence to support decision to cancel licence; decision not patently unreasonable or clearly wrong.

6. Family Day Care – Prince George

Cancellation of licence and Early Childhood Educator certificate

Dismissed March 1995; inappropriate discipline ; failure by licensee to ensure safety of children in care at all times; ample evidence of a lack of knowledge by the licensee in the area of child care an development which resulted in the failure to provide developmentally appropriate programs for children ; process oriented complaints, even if correct, would not have resulted in this Board concluding decision clearly wrong; information also supports cancellation of ECE certificate; appellant does not demonstrate clear knowledge of child development nor appropriate expectations for children of different ages.

7. Family Day Care – Cranbrook

Variance committee – condition imposed on variance

Child Care Panel of the Variance Committee approved a variance to the applicant’s licence to permit her to care for 5 preschool age children (no children under 2 years) plus 3 school age children for a maximum of 2 hours per day commencing September 1, 1994 until June 30, 1995 on the condition that a second adult be present. [Reg 60(1)] . Appellant committed to providing continued daycare for specified families; clients part of extended family; siblings kept together; no other daycare places available for children; MHO and licensing officers recommended variance.

Allowed: Feb. 1995; decision of variance committee patently unreasonable in interpreting particular facts i.e. insufficient weight given to recommendations of Medical Health Officer and licensing officers in the area; undue hardship test met by licensee- denying short term variance would destroy the philosophical underpinning of this facility; insufficient weight given to particular circumstances of this case and the health and safety of children in this facility; Board satisfied no additional risk to children in care.

8. Family Day Care – Kelowna

Cancellation of interim permit

Interim permit cancelled because of incident involving bruising to child in care while husband of permit holder was supervising (Child Care Reg s.28).

Allowed: May 1995; decision of Director of Licensing clearly wrong based on all of the circumstances; appeal allowed on the condition that the appellant’s husband be removed as caregiver on the interim permit; investigation process flawed ; did not conform to the policy and procedure manual (chap 14) in that appellant not interviewed by chief licensing officer or medical health officer; appellant not given opportunity to respond to allegations; justice “not seen to be done”; Board weighed competing needs of protection of children in care and need for licensee to have access to procedural fairness.

9. Family Day Care – Vancouver

Cancellation of licence

Preliminary Issue: jurisdiction of Board ; appeal filed after 30-day limit (Commercial Appeals Commission Act s.8)

Dismissed: Dec. 1995; decision letter advised appellant of ability to appeal, the 30-day time limit and the address and telephone number of the Board; no adequate explanation why appellant did not comply with time limit; Board does not have jurisdiction.

10. Family Day Care  – Vancouver

Refusal to issue interim permit or licence

Concerns regarding appellant’s ability to recognize situations that pose health and safety risk to children; numerous inspections revealing continuing and new safety hazards; also concerns regarding appellant’s expectations of preschool children such as hot water dispenser accessible to children being a safety hazard.

Dismissed: November 1995; Board satisfied MHO decision not wrong – no further reasons.

11. Family Day Care  – Vancouver

Request for Variance denied

Variance requested to provide care for up to seven pre-school children. Hardship alleged as philosophy of centre would be jeopardized by being forced to retain children of different ages; not equipped to transport children to and from school for before and after school care.

Dismissed: April 1996; Board does not accept respondent’s definition of hardship, however, appellant had not proved that compliance with regulations would constitute an undue hardship .

12. Family Day Care – Nanaimo

Conditions attached to licence

Conditions imposed : 1) that licensee review and revise the facilities policy and procedures including the discipline policy and 2) the licensee complete a course in behaviour management and discipline of young children. Child had disclosed she had been hit by licensee; child interviewed by a social worker; other contraventions of regulations; during hearing it was revealed there was a tape recording of interview of child; After notice of appeal filed and before hearing before Board, appellant sought order from SC that tapes of the interview be produced and made available at the appeal; appeal adjourned until outcome of judicial review; SC denied request: no provision under Act to compel production of tapes; affirmed Kucher that appeal is ‘pure appeal’; appellant had to exhaust internal remedies and appeal had not yet been heard (Little v. Benson , May 13, 1996, unreported B.C.S.C.).

Grounds of Appeal: lack of evidence to prove appellant hit child; MHO did not specifically reject evidence of appellant; MHO did not require production of tapes – therefore, best evidence not presented; also, procedural unfairness in not producing tapes – appellant could not respond to opinions of social worker.

Dismissed: June 1996; tapes not specifically requested by appellant’s counsel; as this is appeal on the record Board cannot make adverse finding from the failure to require production of tapes; Board satisfied that MHO did specifically reject testimony of appellant and accept testimony of respondent by inference from reasons.

13. Adult Specialized Residential – Victoria

Request for variance denied

Request to be exempt from section of the Adult Care Regulations which requires that the licensee use a cycle menu written for a minimum of four weeks; Appellant basically challenging the regulation with respect to a small facility ; says it is not necessary where there are not multiple people on various shifts and requirement makes service delivery more institutionalized.

Dismissed: June 1996; appellant’s personal philosophy concerning bureaucratic controls in conflict with his role as an operator; there are more appropriate ways to bring about change in regulations; undue hardship test not met.

14. Family Day Care – Surrey

Cancellation of licence

Various ongoing contraventions; appellant claimed there was conspiracy but panel found no evidence to suggest this.

Dismissed: appellant had over 2 years to bring facility into compliance; delay in criminal record checks an industry wide concern-panel recommended that respondent attempt to find reasonable solution to problem that protects licence holders and people they serve.

15. Pre-School – Vancouver

Request for variance denied

Variance requested to permit licensee to enrol 50 children in the pre-school one day a week, where capacity on licence is 20 children; Licensee operated with 50 children one day a week since 1976 and approved by the Health Unit; four years old taken on field trip every Friday and never more than 20 children at the facility; program involved purchase of bus and insurance and hiring of additional staff; in June 1996 licensee advised that field trip operation in contravention of regulation which requires that children present in a facility are divided into groups of not more than 20; licensee applied for exemption from Sept 96 to June 97 in order to make necessary changes to program to bring it into compliance; hardship included: cancelling commitment to 20 families for the year; change in class schedule; lay off of staff; 40% drop in revenue; credibility and reputation of program would suffer.

Allowed: April 1997; panel does not accept Variance committee’s definition of hardship; insufficient weight given to considerable evidence of hardship; request only for short time period; both tests met .

16. Specialized Adult Residential – Parksville

Cancellation of Licence

Licensee replaced his wife as person in charge after their divorce; no formal notification to licensing although he informed licensing officers during two inspections between 1993 and 1996; inspection by chief licensing officer in Sept. 1996 revealed contraventions; after interview with licensee recommendation to cancel licence; MHO, after hearing, cancelled licence based on inspection by chief licensing officer.

Allowed: July 1997; process leading to hearing extremely flawed and unfair to licensee; because of a lack of follow up of inspection, due process denied .

17. Early Childhood Education Certificate – Vancouver

Suspension of Early Childhood Education certificate for minimum 1 year with conditions

Conditions to work in licensed child care facility in BC but not as manager/supervisor for at least 3 months; provide reference from a manager/supervisor, satisfactory to the Director of Licensing, attesting to the appropriateness of work with children, discipline practices and working relationship with other staff; completion of ECE courses; Investigation of child care centre prompted by information from five staff members re allegations of physical and emotional abuse, poor child care practices and poor human resource management; licensee subsequently dismissed; after further consultation and hearing, certificate suspended; appellant claims behaviour result of hypo-glycemia, was given insufficient time to present case, she had no recollection of events therefore claims allegations false.

Dismissed: January 1998; no error based on evidence before Director; licensee’s evidence inconsistent regarding acceptance of incidents; licensee abdicated all responsibility for her behaviour; concerns regarding investigation process i.e. total reliance on evidence of five staff, and concerns regarding process prior to hearing – no clear policy guidelines around conducting of hearings.

18. Specialized Adult Residential – Nanaimo

Refusal to issue License

Proposed halfway houses do not fall within the definition of Community Care Facility and not intended to be licensed; Appellant argued that proposal satisfies requirements of Act by providing sufficient supervision of its residents and providing sufficient social or educational training or physical or mental rehabilitative therapy to its residents; respondent argued program did not fall within intent of legislation which partly transfers the responsibility for the safety and well being of the individual in care to the care provider, protects individuals who would be at risk without care, constant supervision and direction, and includes vulnerable adults who are not able to take responsibility for their own behaviour.
Act defines a facility as any facility that “provides care, supervision, social or educational training or physical or mental rehabilitation therapy, with or without charge, to 3 or more persons not related by blood or marriage to an operator of the facility”.

Allowed: 1997; facility falls within definition of facility; program requires care giving, supervision, provides social and educational training, provides mental rehabilitative therapy in its cognitive skills training, responsibility for resident’s safety and well being a shared responsibility between residents and staff.

19. Family Day Care – Mission

Refusal to issue licence

During 12 month interim period, facility inspected 4 times by 2 licensing officers; first two inspections revealed minor safety concerns; 3 rd inspection noted appellant to be engaged in inappropriate discipline practices with one child; gas fireplace in use and a safety hazard; number of children under 3 exceeded; plan submitted and accepted by licensing; 4 th visit fireplace screen insufficient and concerns re interactions with children; appellant considers fire screen not a safety hazard; respondent’s primary concern is appellant’s level of competence.

Dismissed: January 1998; decision reasonable based on the evidence; concerns regarding lack of consistency between findings of the licensing officer who conducted first two inspections and licensing officer who conducted last two; also, concerns re lack of clarity in the process of granting interim permits; also, no apparent objective measure of performance for caregivers.

20. Family Day Care – Williams Lake

Refusal to issue licence

Refused on the basis that appellant did not report incidents of sexual abuse of her children by her former husband and did not report allegations of sexual assault of children by her son; that two of the three persons asked to provide reference recommended that she not be issued licence and that Mental Health also recommended that she not be issued licence.

Allowed: February 1998; errors of fact included that incidents involving husband occurred when there was no requirement to report; two individuals had given positive references (prior to withdrawing them) – that she would make excellent caregiver – therefore their credibility is in question; opinion by Mental Health person not supported by evidence.

21. Family Day Care – Vancouver

Cancellation of licence

Child missing from day care for more than two hours; picked up by police and turned over to Ministry for Children and Families; during investigation complaint received that appellant and husband, a few months earlier, had gone to Reno leaving a 14-year-old in charge.

Board: Rehearing ordered February 1998; significant flaws in investigation process -appellant not given notice that investigation included allegations of Reno trip; lack of thoroughness of investigation; although there were serious flaws in the investigation procedure, the appellant was given ample opportunity to have a full and fair hearing .

Judicial Review: matter returned to the Board for a re-hearing on the matter of remedy only ; the Supreme Court found the hearing before the Medical Health Officer insufficient to cure the acknowledged defects in the investigation process and adequacy of notice ; it was also inappropriate to conduct full re-hearing because basic underlying facts well-established (Johnson v. Blatherwick , October 13, 1999, unreported, B.C.S.C.).

Board: April 2001; Dismissed the appeal on the basis that the decision was reasonable given the seriousness of the incidents and that they posed a high risk to the health and safety of the children in care.

22. Adult Care facility – Victoria

Condition on licence

Condition that all contraventions to the Act and Regulation be corrected to the satisfaction of the Medical Health Officer by April 1998.

During course of hearing the parties adjourned to explore a resolution and submitted to the Board a settlement that included the appellant abandoning its appeal regarding certain contraventions, the Board allowing the appeal regarding certain findings of the MHO with respect to the manager, acknowledgement from the MHO that the risks to the health and safety of the residents were only potential risks, that most were addressed and there was a full expectation that all would be addressed in his final report, a statement from the MHO that he regards this facility to be a leader in the care of elderly residents and, a statement of commitment from the appellant and licensing to work together in a consultative fashion to address any of their mutual concerns.

Proposal accepted by the panel, June 1998

23. Child Minding Facility – Coquitlam

Refusal to issue licence

After applying for a licence, inspections revealed appellant repeatedly caring for more children than allowed; high hazard ratings; decision not to issue licence; meeting arranged with appellant; meeting changed from receiving reasons for decision to opportunity to respond to issues.

Allowed: MHO directed to immediately re-instate the Interim Permit for 2 months , October 1998; actions of licensing inconsistent ; appellant receiving mixed messages and no follow-up inspections in timely manner; appellant not given opportunity to show compliance ; decision to refuse licence made before meeting with appellant; although no statutory requirement for meeting to allow appellant to respond to issues, having done so, MHO obliged to ensure that meeting fair and without bias or the appearance of bias; reasonable apprehension of bias thus tainting the whole decision.

Judicial Review: (Loewen v. Community Care Facility Appeal Board , August 31, 1999, unreported, B.C.S.C.). Grounds of Petition: Board breached rules of natural justice and was patently unreasonable ; petitioner not given notice that bias a ground of appeal and no evidence of apprehension of bias.

Dismissed: although notice of appeal did not mention bias, bias quickly became an issue in the proceedings; failure of applicant for licence to allege procedural unfairness and bias not a breach of the rules of natural justice; meeting with licensing a matter of form only and the decision a “fait accompli”; Board’s finding that process flawed reasonable.

24. Early Childhood Education Certificate – Victoria

Refusal to issue Early Childhood Educator certificate

Appellant from Ontario, applied for certificate in BC; refused on grounds there was no evidence of completing training equivalent in the area of Health and Nutrition as required in basic ECE training program. Appellant claims she was directed by Ministry representative to take advanced course in health and nutrition and, upon completion, she would receive certificate; no documentation to confirm representative’s directions.

Allowed: March 1999; accepted that the direction and promise was given by ministry representative; appellant acted in good faith in relying on direction; also, respondent could not provide any basis to conclude that content of advanced basic health and nutrition course insufficient to meet requirements of basic course; Director failed to conduct own evaluation of appellant as required by Act and delegated function to private organization without statutory right to do so.

25. Family Day Care – Duncan

Refusal to issue Licence

Refusal based on results of interviews and observation of appellant; primary concern presence of stepfather during daycare hours; stepfather had sexually assaulted appellant when she was a child; appellant did not feel he was a danger to children.

Dismissed: March 1999; panel expressed several concerns regarding process such as conduct of suitability assessment, lack of contacting additional references, misrepresentation of facts in reports, conclusions regarding stepfather based on one interview, appellant given inadequate opportunity to demonstrate her abilities with children; even though suitability assessment process seriously flawed overriding concern was appellant’s inability to recognize the potential risk of having her step-father on the property while children present.

26. Early Childhood Education Certificate – Cranbrook

Refusal to issue Early Childhood Education Certificate

Requirements of Child Growth and Development component not met; Appellant requested that her Saskatchewan certificate be given equivalency with existing programs in BC; certificate evaluated by International Credential Evaluation Service (ICES); requirements met except for equivalency in Child Growth and Development; appellant submits requirement met through a combination of previously taken courses; Director’s sole consideration in granting equivalency was assessment from ICES; panel noted that specific course content required, observing and recording behaviour, was not a component of Child Growth and Development course and appellant had completed a course that included this

Adjourned: to allow parties to attempt negotiated settlement ; parties reached an agreement and respondent informed the panel that appellant would be issued a certificate forthwith; Panel recommended to Director of Licensing that if outside body used to assess equivalency then changes be made to Regulation and Policy to reflect this; also, if responsibility to evaluate is to be delegated then Licensing enter into formal agreement with agency (March 1999).

27. Child Care Certificates

This decision is included in the binder of decisions although it is a decision of the Provincial Child Care Facilities Licensing Board, the predecessor of the Community Care Facility Appeal Board (since March 1993). The mandate of the previous Board was to regulate childcare facilities and to ensure the safety and well being of children in those facilities. Its regulatory function also included the issuance and cancellation of licenses and certificates.

This decision resulted from the consideration of several reports to the Board from the Medical Health Officer for the City of Vancouver in which he recommended that the Child Care Certificates issued to Mr. Magness be cancelled. The recommendations were based on a series of allegations against Mr. Magness of physical and sexual abuse of young children in his care. The Board, after considering all the circumstances of the case, cancelled his certificates.

28.Intermediate Care Facility – Nanaimo

Refusal to issue licence

Intermediate Care Facility; Insufficient demonstration of ability or willingness to comply with Act and Regulation; continual state of non-compliance and failure to meet deadlines over the interim permit year;

Dismissed: January 2000; decision reasonable given the evidence of non-compliance.

29. Family Day Care – Nanaimo

Cancellation of licence

Incident of child being injured triggered review of facility; history of non-compliance over 7 year period; supervision, record keeping, smoking in facility, cleanliness.

Dismissed: April 2000; infractions numerous; not willing to maintain standards; type of children may require higher standard; issue of new evidence discussed.

30. Family Day Care – New Westminster

Refusal to grant interim permit or licence

History includes operation of two previous facilities; operating without licence, discipline; staff qualifications; does not have skills, temperament .

Dismissed: July 2000; ongoing pattern of failing to meet the minimum requirements of Act and Reg; issue of new evidence discussed.

31. Pre-school – Victoria

Refusal to grant exemption from Regulation 15(2.1)

Change in Regulation limited Early Childhood Education substitute to qualified assistants and excluding “responsible adults”; refusal based on failure to prove hardship exceeding what is expected of other licensees.

Allowed: September 2000; test of undue hardship met; all factors together produce hardship that is disproportionate and exceptional; would change nature of preschool , reducing parent participation; issue of undue hardship discussed.

32. Family Day Care written submissions

Refusal to grant exemption from Regulation s.60(1)

Refusal to allow appellant to operate with 9 children rather than 7 children when she and another adult have operated under exemption for 10 years; respondent alleged complying with Regulation would not cause undue hardship.

Allowed: October 2000; appellant meets test of undue hardship; issue of undue hardship discussed.

33. Family Day Care – New Westminster

Refusal to issue licence

Refusal based on non-compliance with Regulation including continued over capacity, lack of suitable sleeping arrangements and inadequate supervision.

Dismissed: October 2000; long history of operating unlicensed facility and refusal to come into compliance with Regulation.

34. Early Childhood Education Certificate written submissions

Refusal to grant exemption from ECE requirements

Appellant’s work experience (500 hrs required) does not satisfy requirement that it is performed under direction of ECE; nor is she eligible for granting of partial hours under a policy which only applies to the owner/operator of the facility.

Dismissed: January 2001; no statutory authority to allow Director to grant exemption under s.6 Regulation; neither does policy apply to appellant.

35. Family Child Day Care – Chilliwack

Refusal to issue licence

Interim permits issued over 10 year period; one expired due to renovations, one due to only 2 children enrolled; inspections during most recent permit revealed insufficient numbers, concerns re unsuitability, misrepresentation.

Dismissed: January 2001; decision reasonable; reasonable basis for misrepresentation; ongoing health and safety issues; appellant not able to sufficiently understand role as licensee although long application process.

36. Family Child Day Care – Vancouver

Licence cancelled

Board returned matter to MHO for re-hearing; appealed to Supreme Court of BC; returned to the Board for re-hearing with respect to remedy only.

Judicial Review – returned for re-hearing on remedy

Two incidents triggered cancellation of licence: two year old wandered from facility and 14 yr old left to cover daycare.

Dismissed: April 2001; MHO’s decision to cancel reasonable; two incidents, although apparent anomalies, sufficient to warrant cancellation as they were serious contraventions; new evidence issue discussed.

37. Family Day Care – Kamloops

Refusal to grant interim permit

Refusal based on information of references including family arguing and inability to provide stimulating environment; also, insufficient comprehension of child care operating policies and procedures.

Allowed: April 2001; insufficient evidentiary basis for reasons of refusal; respondent unreasonably relied on negative information of references.

38. Family Day Care – North Vancouver

Refusal of Group Child Care facility licence

Refusal based on series of events including denial of inspection of facility, over-numbers, disregard for court ordered appearances.

Dismissed: April 2001; chain of events over course of several months sufficient reason for respondent to lose confidence in appellant’s ability to run facility; lack of regard for licensing process.

39. Family Child Day Care – Chilliwack

Refusal of Interim Permit

Refusal based on continued failure to ensure supervision of children.

Dismissed: July 2001; supervision concerns supported by the evidence.

40. Family Day Care – Vancouver

Cancellation of Daycare Licence

Cancellation triggered by incident of pulling hair of child; history of complaints regarding disciplining of children and supervision and overcapacity.

Dismissed: October 2001; credibility assessment of MHO sufficient; pulling child’s hair and past history of contraventions support decision to cancel.

41.  Family Day Care – Prince George

Cancellation of Daycare Licence

Cancellation due to contraventions including, unsafe practices while transporting children, unsafe practices while walking with children and inappropriate discipline techniques such as lying on children to make them nap; history of continued practices that threaten the health and safety of children.

Dismissed: October 2001; evidence substantial; hearing before MHO potential for unfairness because 1st of 2 hearings held without appellant.

42. Early Childhood Education Certificate – Vancouver

Cancellation of Early Childhood Education Certificate

Preliminary decision regarding whether the Board should accept the Respondent’s submission that the Board should dismiss the Appellant’s appeal without a hearing on the merits on the grounds that too much time had passed (3 ½ years since the cancellation decision was made) and on the basis that it would be outside the bounds of administrative fairness to hear an appeal after that length of time.

Preliminary Decision: March 15, 2001; Respondent’s submission rejected; respondent failed to satisfy onus to demonstrate evidentiary or other prejudice ; argument that matter “moot” rejected; Board not persuaded that, if appeal was meritorious, any remedy would have no practical benefit.

43. Early Childhood Education Certificate – Vancouver

Cancellation of Early Childhood Education Certificate

Cancellation of ECE certificate due to concerns including, inadequate policy and procedures, poor supervision, inability to work with licensing staff, inappropriate behaviour and poor judgment.

Dismissed: January 3, 2002; Director entitled to conclude appellant not of good character when she listened in on confidential conversations, instructed staff to forge documents and hid in her car to avoid licensing officers and on evidence entitled to conclude appellant exhibited poor professional practice in dealing with staff and in behaviour in front of children.

44.  Family Child Day Care – Vancouver

Refusal of Day Care Licence

Refusal to grant license after expiry of interim permit based on appellant’s history of unwillingness to comply with the regulation regarding number of children allowed in her care and lack of confidence that appellant would be a suitable licensee.

Dismissed: April 16, 2002; panel found no error in Deputy Director’s decision and found it to be reasonable based on the evidence before him that the appellant was unwilling or unable to accept the requirements of her licence or the authority of the licensing officers to impose those requirements.

45. Early Childhood Education Certificate – Chilliwack

Renewal of Early Childhood Education Licence with conditions attached

ECE certificate was renewed with conditions attached resulting from an investigation into previously owned child care facility and failure to demonstrate necessary abilities and competence to ensure health and safety of children in her care.

Dismissed: June 14, 2002; panel found no error in decision and found imposition of conditions reasonable based on evidence before them. Recommended extension of time for completion of supervised hours.

46. Family Day Care – Vernon

Request for variance refused

Child Care Panel of the Variance Committee refused request to exempt appellant’s two school age children from total number of children allowed in facility. Appellant operated with understanding that only the lower level of home was licensed as the day care thus excluding her school age children who were upstairs from the number of children allowed under s. 60 of the regulation.

Dismissed: October 29, 2002; although there was policy in place that expressly includes whole house in facility, appellant’s misunderstanding was in part due to licensing officer’s actions; panel satisfied that Variance Committee considered all relevant factors of hardship including purchase and renovation of lower level however, factors not sufficient to cause undue hardship.

47. Specialized Adult Residential Care – New Westminster

Licence Cancelled

Facility accommodates some adults who are very difficult to place; investigation of facility resulted in several ongoing contraventions to the Act and regulations and belief that appellant did not have training or ability to operate facility; issues included medication administration, reportable incidents, staffing requirements, state of cleanliness and repair.

Dismissed: November 19, 2002; appellant acknowledged she had not complied with regulations; does not feel necessary given her particular clients and level of funding; licensed status requires her to abide by requirements of Act and regulations; evidence before respondent overwhelmingly indicates the facility operating well below minimum standard for health and safety.

48. Group Child Care – Written submissions

Refusal to grant variance

Request for exemption from s.43(a) and (c) of the Child Care Regulation, to reduce floor space per child from 3.7 sq. meters to 2.66 sq. meters and to increase number of children per toilet and wash basin from one per 10 children to one per 12 children;

test of undue hardship met due to unexpected changes required; second test not met – granting exemption would increase risk to health and safety of children;

Dismissed: onus on appellant to show that variation will not increase risk to health and safety; onus not met; increase in number of children per floor space significant; no evidence presented to contradict information regarding past history of minor accidents and issues related to health and safety; also no evidence presented by way of constructive plan to ensure further crowding would not compromise health and safety.

49. Family Day Care – Vancouver

Refusal to issue interim permit or licence

Refusal based on 1) issues arising out of incident: supervision, coping and communication; 2) appellant’s refusal to take courses required as a result of incident; 3) appellant’s lack of co-operation with licensing authorities

Allowed: lack of procedural fairness tainted decision to refuse licence or further interim permit; requirement to take courses was a term or condition of the interim permit and should not have been imposed without a hearing as required by s.6 of the Act; appellant received no proper direction regarding appeal process after term or condition imposed; appellant’s refusal to meet with licensing authority or to take courses and her approach with Ombudsman were major factors in respondent’s conclusion appellant was unco-operative and its ultimate decision not to renew interim permit; appellant to be issued interim permit for 3 months with no requirement to take courses as term or condition.

50. Family Day Care – Penticton

Refusal to issue interim permit or licence

Refusal based on appellant’s inability to provide a safe outdoor play area that meets Schedule D of the Child Care Regulations. Schedule D requires the provision of outdoor activities that “encourage the development of large and small muscle skills appropriate to each child’s level of development”. Respondent found outdoor play area too small and the local park unsafe due to its proximity to a busy street, insufficient fencing and difficulties in supervision.

Dismissed: Respondent’s decision reasonable. Panel viewed the outdoor space and park. Appellant did not provide sufficient plan to overcome small outdoor space to ensure health and safety of the children and did not seem to understand the degree of safety hazards posed by park area.

51. Family Day Care – Nanaimo

Refusal to issue interim permit or licence

Refusal based on outside fenced play area not meeting requirements and intent of Child Care Regulation s.30(1), inappropriate conduct and inability to work co-operatively with licensing authority.

Dismissed: Respondent’s conclusion that play area was too small was a reasonable exercise of her discretion; completed area well below original plan appellant committed to and less than half the size required for group care; respondent’s decision to refuse a licence based on appellant and her husband’s conduct also reasonable and sufficient to dismiss appeal; husband’s angry tone and derogatory remarks towards licensing officers, particularly when children present, inappropriate; past behaviour relevant; husband’s involvement in appellant’s business appears to generate an environment of conflict between them and licensing authorities that makes the necessary working relationship untenable.