James Charles Dakin

The appellants, a foster parent and his daughters, appealed a motion judge's decision to strike their claims against Family and Children’s Services of the Waterloo Region (FCS) and two of its employees.

The claims included breach of statutory duty, breach of duty of care, breach of fiduciary duty, and defamation, stemming from an FCS investigation into sexual abuse allegations.

The motion judge struck the claims, granting leave only for misfeasance in public office.

The Court of Appeal affirmed the motion judge's decision, holding that child welfare agencies do not owe a duty of care or fiduciary duty to foster parents, as their paramount duty is to the child, which would create an irreconcilable conflict of interest.

The Court also upheld the striking of claims against individual employees, finding the allegations of bad faith insufficiently particularized to overcome statutory immunity under s. 15(6) of the Child and Family Services Act.

The appeal was dismissed with costs.

This ruling addresses two motions to strike portions of a statement of claim brought by the plaintiffs, Jayelle and Sarel Alafi, against midwives and the Children's Aid Society of Algoma (CAS).

The Alafis sued for negligence, negligent misrepresentation, negligent infliction of mental suffering, intrusion upon seclusion, misfeasance of public office, and Charter s. 7 breaches, following the apprehension of their newborn child.

The court struck Mr. Alafi's negligence claims against the midwives related to their scope of practice, finding no duty of care owed to a non-patient third party.

The court also struck the plaintiffs' negligence claims against the CAS, reaffirming that the CAS's duty is solely to the child.

However, the court dismissed the CAS's motion to strike the plaintiffs' s. 7 Charter claims, finding it not plain and obvious that these claims would fail, particularly regarding the right to security of the person in child protection contexts.

Portions of the midwives' motion were adjourned for further submissions.

The plaintiff, Stefan Darcy Vernon, sued North Eastern Ontario Family and Children’s Services (NEOFCS) for negligence, alleging failure to investigate and protect him from abuse by his father.

NEOFCS moved for summary dismissal, arguing that the plaintiff failed to provide an expert report on the applicable standard of care for a child protection agency.

The court found NEOFCS's expert report inadmissible due to improper submission.

The court determined that expert evidence was not necessarily required for the plaintiff's claim of institutional negligence under the Child and Family Services Act, nor for allegations of egregious professional negligence that might fall under established exceptions.

Consequently, the court found a genuine issue requiring a trial and dismissed the motion for summary judgment with costs to the plaintiff.

Following a trial where the Plaintiff was awarded damages against Maryvale for sexual assault but his action against the Archdiocese of London and Father Horvath was dismissed, this endorsement addresses costs.

The Plaintiff sought substantial indemnity costs against Maryvale and a Sanderson or Bullock order to make Maryvale responsible for the costs of the successful co-defendants.

The Archdiocese and Father Horvath, having successfully defended, sought costs from the Plaintiff.

The court awarded the Archdiocese and Father Horvath $125,500 in costs payable by the Plaintiff, finding no basis for a Sanderson or Bullock order due to the independent nature of the claims and lack of blame-shifting.

The court awarded the Plaintiff $175,000 in substantial indemnity costs against Maryvale, accounting for the time spent on the unsuccessful claims against the other defendants.

The plaintiff sought to admit the evidence of Dr. Kerry Smith, a mental health clinician who provided therapy to the plaintiff in prison, as a participant expert in a civil action for damages for alleged sexual abuse.

The court ruled on the admissibility and scope of Dr. Smith's evidence, qualifying him as an expert and finding his evidence relevant to psychological harm and the occurrence of abuse.

The court applied the "participant expert" framework from Westerhof v. Gee Estate, allowing testimony based on observations, impressions, and treatment documented in his reports, but precluding opinions extending beyond these limits without compliance with Rule 53.03.

The plaintiff sought damages arising from a motor vehicle collision in which liability was admitted.

A jury assessed general damages at $35,000 but awarded nothing for competitive disadvantage or handyman services.

The trial judge was required to determine whether the claim met the statutory threshold under s.267.5 of the Insurance Act for recovery of non‑pecuniary damages.

The court held that the plaintiff failed to prove that his ongoing symptoms were caused by the collision, given significant prior back injuries and more persuasive defence expert evidence.

In any event, the alleged impairments did not amount to a permanent serious impairment of an important physical, mental, or psychological function.

The action was dismissed for failure to meet the statutory threshold.