A.L. and AE.L., a Minor, by his Litigation Guardian A.L. v. Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community and Social Services [Indexed as: L. (A.) v. Ontario (Minister of Community and Social Services)]
83 O.R. (3d) 512
Court of Appeal for Ontario,
Sharpe, Armstrong and MacFarland JJ.A.
November 24, 2006
Torts -- Misfeasance in public office -- Section 30 of Child and Family Services Act provides that Minister may enter into written agreement with parent or custodian of special needs child to provide needed services -- Plaintiffs allege that Ontario had policy of refusing to enter into any new s. 30 agreements -- Plaintiffs bring proposed class action on behalf of similarly situated parents of special needs children -- Statement of claim fails to disclose a cause of action for misfeasance in public office -- Pleading does not allege that specific public officer knowingly abused his or her statutory duties for unlawful purpose of hurting plaintiffs -- Child and Family Services Act, R.S.O. 1990, c. C.11, s. 30.
Torts -- Negligence -- Duty of care -- Section 30 of Child and Family Services Act provides that Minister may enter into written agreement [page513] with parent or custodian of special needs child to provide needed services -- Plaintiffs allege that Ontario had policy of refusing to enter into any new s. 30 agreements -- Plaintiffs bring proposed class action on behalf of similarly situated parents of special needs children -- Motions judge properly dismissed certification motion -- Statement of claim does not disclose cause of action in negligence -- Imposition of duty of care on Minister inconsistent with voluntary and discretionary nature of decision to enter into s. 30 agreement -- Child and Family Services Act, R.S.O. 1990, c. C.11, s. 30.
Section 30 of the Child and Family Services Act ("CFSA") provides that a parent or custodian who is unable to provide the services required by his or her special needs child may make a written agreement with the Minister whereby the Minister agrees to provide services to meet the child's special needs. A special needs child and the child's mother brought an action on their own behalf and on behalf of a proposed class of similarly situated children and parents for damages for negligence. The negligence claim was based on an alleged breach by Ontario of its statutory duty under s. 30 of the CFSA. The plaintiffs' motion to certify the action as a class proceeding was dismissed. The motions judge ruled that s. 30 conferred a discretion on the Minister and that the Minister could not be held liable in damages for refusing to exercise his discretion to enter into such agreements. The Divisional Court allowed the plaintiffs' appeal and certified the action as a class proceeding. The court ruled that there was an arguable claim in negligence, as the state was obliged to fund the services required by special needs children under its parens patriae obligations at common law and the requirements of the CFSA. The court found that it was arguable that the decision not to enter into a s. 30 agreement was an operational decision that had to be made in a non-negligent manner. The court also found that there was an arguable claim for misfeasance in public office, although that claim had not been pleaded. Ontario appealed. Following the Divisional Court's judgment, the statement of claim was amended to allege misfeasance in public office as well as negligence.
Held, the appeal should be allowed.
The negligence claim advanced by the plaintiffs was at odds with the nature of the legal relationship between the parties that is created by s. 30 of the CFSA. The statutory discretion conferred by s. 30 permits -- but does not require -- a voluntary agreement. The law cannot superimpose an involuntary tort duty of care within a legal framework that itself requires voluntary consent to create a legal relationship. One does not commit a tort by refusing to enter into a contract. Section 30 gives the Minister the right to say "no". When deciding whether or not to enter a s. 30 agreement, the Minister is required to act in the public interest and balance competing demands for scarce public resources. The statute presents the plaintiffs with hope that the Minister might enter into a special needs agreement but, in the face of the Minister's public duty to weigh other competing demands when deciding how to exercise his or her discretion, that hope does not amount to a legal duty of care that would ground an action for damages in negligence. The imposition of a duty of care would contradict and undercut the nature of the legal relationship contemplated by the statute and would be contrary to the public nature of any duty that is created by s. 30.
Even if, on the facts pleaded, there is sufficient proximity to give rise to a prima facie duty of care, there are residual policy considerations outside the relationship of the parties that negative the imposition of a duty. The law already provides a remedy that responded directly to the plaintiffs' complaint. The allegation that [page514] the Minister acted improperly by terminating s. 30 agreements or by failing to provide adequate criteria or guidelines for their use can be addressed by way of declaratory action or an application for judicial review. To recognize a private law duty of care would expose Ontario to claims for substantial damages by many families and individuals who believe that they have not received adequate services, and would represent an unwarranted and undesirable intrusion that could interfere with the sound administration of the CFSA.
The amended statement of claim did not disclose a cause of action for misfeasance in public office. To establish the tort of misfeasance in public office, first, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer, and second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff. The ingredient of a deliberate unlawful act intended to inflict harm on the plaintiff is central to the tort. Failure to discharge the functions of office because of budgetary constraints does not amount to a deliberate disregard of a public officer's duties. The statement of claim did not allege that a specific public officer knowingly abused his or her statutory duties for the unlawful purpose of harming the plaintiffs.
APPEAL from the judgment of O'Driscoll, Jarvis and Molloy JJ. (2005), 2005 16608 (ON SCDC), 77 O.R. (3d) 422, [2005] O.J. No. 1924 (Div. Ct.), allowing an appeal from the order of Cullity J. (2003), 2003 32458 (ON SC), 65 O.R. (3d) 289, [2003] O.J. No. 2405 (S.C.J.), dismissing a motion to certify an action as a class proceeding.
Cases referred to Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 W.L.R. 1024, 121 Sol. Jo. 377, 75 L.G.R. 555 (H.L.); Cooper v. Hobart, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, 96 B.C.L.R. (3d) 36, 206 D.L.R. (4th) 193, 277 N.R. 113, [2001] 11 W.W.R. 221, 2001 SCC 79, 8 C.C.L.T. (3d) 26; Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74, 233 D.L.R. (4th) 193, 312 N.R. 305, 2003 SCC 69, 19 C.C.L.T. (3d) 163, 11 Admin. L.R. (4th) 45, apld Roncarelli v. Duplessis, 1959 50 (SCC), [1959] S.C.R. 121, [1959] S.C.J. No. 1, 16 D.L.R. (2d) 689, distd Other cases referred to Brown v. British Columbia (Minister of Transportation and Highways), 1994 121 (SCC), [1994] 1 S.C.R. 420, [1994] S.C.J. No. 20, 89 B.C.L.R. (2d) 1, 112 D.L.R. (4th) 1, 164 N.R. 161, 19 C.C.L.T. (2d) 268, 2 M.V.R. (3d) 43; Edwards v. Law Society of Upper Canada (2001), 2001 SCC 80, 56 O.R. (3d) 456n, [2001] 3 S.C.R. 562, [2001] S.C.J. No. 77, 206 D.L.R. (4th) 211, 277 N.R. 145, 2001 SCC 80, 8 C.C.L.T. (3d) 153, 13 C.P.C. (5th) 35; Eliopoulos v. Ontario (Minister of Health and Long-Term Care), 2006 37121 (ON CA), [2006] O.J. No. 4400, 217 O.A.C. 69, 152 A.C.W.S. (3d) 622, 43 C.C.L.T. (4th) 163 (C.A.); Hollick v. Toronto (City) (2001), 2001 SCC 68, 56 O.R. (3d) 214n, [2001] 3 S.C.R. 158, [2001] S.C.J. No. 67, 205 D.L.R. (4th) 19, 277 N.R. 51, 24 M.P.L.R. (3d) 9, 2001 SCC 68, 13 C.P.C. (5th) 1; Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, 49 B.C.L.R. (2d) 273, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105; Three Rivers District Council v. Bank of England (No. 3), [2000] H.L.J. No. 32, [2000] 2 W.L.R. 1220, [2000] 3 All E.R. 1; Wynberg v. Ontario, 2006 22919 (ON CA), [2006] O.J. No. 2732, 269 D.L.R. (4th) 435, 142 C.R.R. (2d) 311, 213 O.A.C. 48, 40 C.C.L.T. (3d) 176 (C.A.) Statutes referred to Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 7, 26 [as am.], 30 Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1) Family Law Act, R.S.O. 1990, c. F.3, s. 61 [as am.] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21 [as am.] [page515]
Dennis W. Brown, Q.C., Michele Smith, Malliha Wilson and Lise G. Favreau, for appellant. Won J. Kim, Victoria Paris, J. Adam Dewar and Megan B. McPhee, for respondents.
The judgment of the court was delivered by
1SHARPE J.A.: -- The respondent AE.L. is a disabled child who has special needs. The respondent A.L. is AE.L.'s mother, AE.L.'s litigation guardian, co-plaintiff in the action and respondent on this appeal. The respondents sue on their own behalf and on behalf of a proposed class of similarly situated children and parents for damages against the appellant, Her Majesty the Queen in Right of Ontario ("Ontario"), represented by the Minister of Community and Social Services (the "Minister"). The respondents base their claim on the Child and Family Services Act, R.S.O. 1990, c. C.11 ("CFSA"). Section 30 of the CFSA provides that a parent or custodian who is unable to provide the services required by his or her special needs child "may . . . make a written agreement" with the Minister whereby the Minister agrees to provide "services to meet the child's special need". The respondents allege that since 1997, Ontario's policy has been to refuse to enter any new s. 30 agreements. They claim this has caused them and others similarly situated trauma, stress and humiliation since without a s. 30 agreement the only way they could secure the necessary services was for the children to be surrendered to Children's Aid Society ("CAS") wardship through a temporary care agreement. In the original statement of claim, the respondents' claim was based on the allegation that Ontario was in breach of its statutory duty, giving rise to a claim in negligence.
2The motions judge ruled that there was no legal basis for the negligence claim and dismissed the respondents' motion to certify the action as a class proceeding. He ruled that s. 30 conferred a discretion on the Minister and that the Minister could not be held liable in damages for refusing to exercise his discretion to enter such agreements. The motions judge refused to certify the damages claim as a class proceeding but ruled, at para. 47, that the respondents were entitled to proceed with their claim for a declaration "that the Minister was in breach of statutory duties by [page516] failing to provide clear and consistent criteria for special needs agreements and in deciding to terminate their availability".
3The Divisional Court (reasons by Molloy, O'Driscoll and Jarvis JJ. concurring) allowed the respondents' appeal and certified the action as a class proceeding. The Divisional Court ruled, at para. 9, that there was an arguable claim in negligence as the state was obliged to fund the services required by special needs children "under its parens patriae obligations at common law and the requirements of the CFSA". The Divisional Court found that it was arguable that the decision not to enter a s. 30 agreement was an operational decision that had to be made in a non-negligent manner. The Divisional Court also found that there was an arguable claim for misfeasance in public office although that claim had not been pleaded.
4The appellant sought and obtained leave to appeal to this court.
5For the following reasons, I would allow the appeal and set aside the order certifying this action as a class proceeding on the ground that the statement of claim does not plead facts capable of supporting the damages claims.
Legislation
6The respondents' claim is based upon s. 30 of the CFSA:
30(1) A person who is unable to provide the services required by a child in his or her custody because the child has a special need, and a society having jurisdiction where the person resides, may with a Director's written approval make a written agreement for,
(a) the society's provision of services to meet the child's special need; and
(b) the society's supervision or care and custody of the child.
(2) A person who is unable to provide the services required by a child in his or her custody because the child has a special need, and the Minister, may make a written agreement for,
(a) the Minister's provision of services to meet the child's special need; and
(b) the Minister's supervision or care and custody of the child.
(3) A special needs agreement shall only be made for a specific period, but may be extended, with a Director's written approval in the case of an agreement with a society, for a further period or periods.
7The term "special need" is defined in s. 26 of the CFSA as:
[A] need that is related to or caused by a developmental disability or a behavioural, emotional, physical, mental or other disability. [page517]
Facts
8This appeal arises from a motion to certify an action as a class proceeding pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6 ("CPA"). Section 5(1)(a) of the CPA requires that the pleading disclose a cause of action. Accordingly, my recitation of the facts will be restricted to those pleaded by the respondents in their statement of claim.
9Following the Divisional Court's judgment, the original statement of claim was amended. The amended statement of claim now alleges misfeasance in public office as well as negligence. The appellant submitted that this court should consider the original pleading that was before both the motions judge and the Divisional Court, but in oral argument suggested that in the interests of efficiency we should consider the amended statement of claim.
10The key allegations in the amended statement of claim are as follows:
-- AE.L. is a child with special needs arising out of his multiple disabilities.
-- In January 2000, a local CAS advised AE.L.'s mother that the only way to obtain the funding for the services AE.L. required was to surrender custody to the CAS through a temporary care agreement.
-- In September 2000, the local CAS advised AE.L.'s mother that she would have to agree to a full wardship order to secure services for AE.L. on a long-term basis.
-- AE.L.'s mother learned about s. 30 of the CSFA and special needs agreements and, in January 2001, entered an agreement with the Ministry of Community and Social Services (the "Ministry").
-- Ontario breached its statutory duty by failing to establish or implement clear and consistent criteria and procedures for entering special needs agreements.
-- The requirements of families with special needs children were not fairly assessed, and special needs agreements were entered on an ad hoc basis resulting in uneven and inequitable access to services.
-- In the spring of 1997, the Ministry underwent a restructuring and, although s. 30 of the CFSA was never repealed, a [page518] Ministry directive effectively terminated the availability of special needs agreements.
-- The decision to terminate special needs agreements "was irrational, reckless or made in bad faith".
-- Ontario knew or ought to have known that given the dependency of special needs children and the lack of available resources, termination of special needs agreements would cause "immediate and terrible pain, hardship and suffering".
-- Termination of special needs agreements "endangered the physical, emotional, mental and financial health of [the proposed] Class Members" in breach of Ontario's "statutory and parens patriae obligations".
-- "Ontario owed a duty of care to provide Special Needs Agreements" to those eligible under s. 30 of the CFSA and beached that duty by, inter alia:
-- ceasing to issue and/or terminating special needs agreements without ensuring adequate alternative services were available to the respondents and other members of the proposed class;
-- failing to provide and follow consistent criteria for special needs agreements;
-- taking CAS custody of AE.L. and other members of the proposed class as a means of providing needed services.
-- Ontario, the Minister, and other Ministry officials are liable for the tort of misfeasance in public office for engaging in the following deliberate conduct that they knew or ought to have known was unlawful and likely to cause harm to the respondents and the proposed class members:
-- issued the directive not to enter into special needs agreements; and
-- failed to exercise its discretion to enter into special needs agreements,
despite reports by the Office of Child and Family Service Advocacy and the Ombudsman of Ontario that special needs children were being forced into the child protection system to secure their needs. [page519]
Certification Motion
11The motions judge dismissed the certification motion on the ground that the statement of claim failed to disclose a cause of action in negligence. The motions judge accepted Ontario's submission that the allegations of negligence related to the allocation of public resources, a matter of policy that, in the absence of bad faith, is not reviewable by the courts and cannot form the basis for an action in negligence. The essence of his analysis is found in paras. 42-43 of his reasons:
[T]he court will not interfere with Ministerial decisions with respect to funding availability, priorities and allocations. The plaintiff's position is essentially that the powers conferred by the legislature on the Executive in s. 30 of the Act -- for the benefit of a vulnerable segment of society -- carry with them responsibilities that it is not entitled to walk away from without legislative approval. However, even if this proposition were to be accepted, I do not think it would be sufficient to establish the existence of a duty of care for the purpose of actionable negligence.
If such a duty existed, and was breached, the plaintiff would be entitled to damages as compensation for the harm suffered as a consequence. In deciding the question of causation, the court would, of necessity, have to consider in each case whether assistance would or -- should -- have been provided and in what manner and to what extent. That would require an inquiry into the manner in which Ministerial discretion with respect to funding priorities, and the allocation of funds, should be exercised.
12The motions judge ruled, at para. 47, that the statement of claim raised an arguable claim for a declaration that the Minister was "in breach of statutory duties by failing to provide clear and consistent criteria for special needs agreements and in deciding to terminate their availability". However, he concluded that certification for that claim should be refused under s. 5(1)(d) of the CPA on the grounds that a class proceeding was not the preferable procedure as the claim could be more efficiently and effectively presented by an individual. The result of a successful declaratory action would inure to the benefit of the proposed class without the attendant cost and complexity of a class proceeding.
Divisional Court
13The Divisional Court ruled that the motions judge erred by concluding at the pleadings stage that the decision to terminate s. 30 agreements was a policy decision. According to the Divisional Court, that determination could be made only at trial. The Divisional Court also disagreed with the motion judge's conclusion that the respondents' complaint was nothing more than the failure to allocate sufficient resources for special needs agreements under s. 30 of the CFSA. The Divisional [page520] Court's starting point, at para. 9, was that Ontario was required to provide for the special needs of children like AE.L. one way or the other "under its parens patriae obligations at common law and the requirements of the CFSA". On that assumption, the Divisional Court found that the decision to eliminate special needs agreements was arguably operational in nature. The issue for the Divisional Court, at para. 7, was "not a matter of funding per se, but rather whether the funding is provided within the prescribed legislative mandate and in a manner that reflects the best interests of the child". The Divisional Court stated at para. 9:
[T]he plaintiffs' case is not really about the level of budget commitments or the allocation of scarce resources as a question of government policy and priority. Rather, the plaintiffs argue this was an operational decision as to the manner in which services would be provided, with the government deciding to ignore the statutorily mandated route and with the result that children's needs were not met at all or parents lost custody of their children so that the needs were met through the Children's Aid Society.
14The Divisional Court added, at para. 14, that the statement of claim also raised an arguable cause of action for misfeasance in public office, although the respondents did not plead this claim: "To establish the tort, the plaintiff must prove: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. These requisite elements are pleaded in the statement of claim."
15Having found that the statement of claim satisfied the requirements of s. 5(1)(a) of the CPA with respect to articulating an arguable cause of action in negligence and misfeasance in public office, the Divisional Court found that the action satisfied the other criteria for certification and ordered that it be certified.
Issues
16There are two issues in this appeal:
(1) Does the amended statement of claim disclose a cause of action in negligence?
(2) Does the amended statement of claim disclose a cause of action for misfeasance in public office?
Analysis
17It is common ground that the test to be applied under s. 5(1)(a) of the CPA is the same as that applied under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: namely, assuming the allegations pleaded can be proved, is it "plain, obvious, and beyond doubt that the plaintiff could not succeed". Moreover, the [page521] claim "must be read generously with allowance for inadequacies due to drafting deficiencies" and should "not be dismissed simply because it is novel": Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, at p. 980 S.C.R.; Hollick v. Toronto (City) (2001), 2001 SCC 68, 56 O.R. (3d) 214n, [2001] 3 S.C.R. 158, [2001] S.C.J. No. 67, at para. 25.
(1) Does the amended statement of claim disclose a cause of action in negligence?
18It is also common ground that to determine whether a public authority owes a private law duty of care to an individual or to a class, the court is to apply the two-part test first announced by the House of Lords in Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 W.L.R. 1024 (H.L.), at pp. 751-52 and refined by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, at paras. 30-31:
At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant's act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care . . . .
On the first branch of the Anns test, reasonable foreseeability of the harm must be supplemented by proximity. The question is what is meant by proximity. Two things may be said. The first is that "proximity" is generally used in the authorities to characterize the type of relationship in which a duty of care may arise. The second is that sufficiently proximate relationships are identified through the use of categories. The categories are not closed and new categories of negligence may be introduced. But generally, proximity is established by reference to these categories. This provides certainty to the law of negligence, while still permitting it to evolve to meet the needs of new circumstances.
(Emphasis in original)
I will refer to this test as the Cooper/Anns test.
19In my view, the negligence claim advanced by the respondents is at odds with the nature of the legal relationship between the parties that is created by s. 30 of the CSFA. Simply put, one does not commit a tort by refusing to enter into a contract. The respondents' negligence claim rests on the argument that s. 30 of the CFSA imposes a duty of care, yet s. 30 contemplates a voluntary agreement. The central and fatal flaw in the respondents' position is that they are attempting to impose a tort law duty of [page522] care that is inconsistent with the contractual relationship contemplated by s. 30. Tort claims rest upon legally imposed duties; contractual obligations depend upon the mutual consent of the parties. The statutory discretion conferred by s. 30 permits -- but does not require -- a voluntary agreement.
20The respondents conceded in oral argument that the Minister is under no legal obligation to enter a s. 30 special needs agreement and that the respondents have no legally enforceable right to insist that he do so, however compelling their need may be. That is plain from the wording of s. 30 which speaks of an "agreement" that the Minister "may" authorize or enter. This connotes a voluntary undertaking between two or more parties that becomes legally enforceable only by virtue of the parties' mutual intent to create a legal obligation. I fail to see how the law could superimpose an involuntary tort duty of care within a legal framework that itself requires voluntary consent to create a legal relationship. Section 30 gives the Minister the right to say "no". The Minister's right to say "no" is a vital element in the creation of the legal obligation contemplated by s. 30 and is flatly inconsistent with a tort law duty that would require the Minister to say "yes" or make him liable for tort damages when he says "no".
21For a duty of care to be imposed, the harm must be foreseeable and a relationship of proximity must be found between the appellant and the respondents. It is undoubtedly foreseeable that the respondents would suffer harm if the Minister refused to enter a special needs agreement. However, this case does not fall within any established category in which proximity and a duty of care has been recognized. Nor, in my view, can a duty of care be made out under the Cooper/Anns test as there is no proximity of relationship sufficient to give rise to a duty of care.
22According to Cooper, supra, at para. 34, proximity is determined by "looking at expectations, representations, reliance, and the property or other interests involved" to "evaluate the closeness of the relationship between the plaintiff and the defendant" and by asking "whether it is just and fair having regard to that relationship to impose a duty of care in law upon the defendant".
23In this case, the only possible source of a duty of care is the statute. The CFSA confers upon the Minister certain powers to be exercised in the general public interest. Section 30 allows but does not require the Minister to enter special needs agreements. Section 30 is but one of many permissive sections that delineates various mechanisms to provide the services required to meet the needs of children. For example, s. 7(1) states that the Minister "may": [page523]
(a) provide services and establish, operate and maintain facilities for the provision of services; and
(b) make arrangements with persons, municipalities and agencies for the provision of services,
and may make payments for those services and facilities out of the legislative appropriations.
24The determination of what services to fund and how to fund them is left to the Minister. When deciding whether or not to enter a s. 30 agreement, the Minister is required to act in the public interest and balance competing demands for scarce public resources: see Wynberg v. Ontario, 2006 22919 (ON CA), [2006] O.J. No. 2732, 269 D.L.R. (4th) 435 (C.A.), at para. 257. The statute presents the respondents with hope that the Minister might enter into a special needs agreement but, in the face of the Minister's public duty to weigh other competing demands when deciding how to exercise his or her discretion, that hope does not amount to a legal duty of care that would ground an action for damages in negligence. Decisions by the Minister "require the exercise of legislatively delegated discretion and involve pursuing a myriad of objectives consistent with public rather than private law duties": Edwards v. Law Society of Upper Canada (2001), 2001 SCC 80, 56 O.R. (3d) 456n, [2001] 3 S.C.R. 562, [2001] S.C.J. No. 77, at para. 14. The imposition of a duty of care would contradict and undercut the nature of the legal relationship contemplated by the statute and would be contrary to the public nature of any duty that is created by s. 30.
25I wish to be clear that my decision does not rest on the assumption that the courts are entirely powerless to review or control the Minister's exercise of the discretion conferred by s. 30. I agree with the motions judge that it is not plain and obvious on the pleading that the respondents would necessarily fail on their claim that the Minister was in breach of certain statutory duties, namely, failing to provide clear and consistent criteria for special needs agreements and deciding to terminate their availability. However, since any duties or obligations contemplated by the statute are public in nature, they are not capable of giving rise to a private tort law duty of care or an action in negligence for damages.
26In my view, the Divisional Court erred in concluding otherwise. The starting point for the Divisional Court appears to have been the assumption that Ontario was legally required to provide for AE.L.'s special needs. According to the Divisional Court, the decision on the means that should be adopted to satisfy that obligation, whether through a s. 30 agreement or otherwise, was arguably operational in nature and would trigger a duty of care [page524] to implement the funding for services to meet AE.L.'s special needs in a non-negligent fashion.
27I disagree with this analysis. First, I do not agree that apart from s. 30, Ontario was legally required to pay for AE.L.'s special needs. The Divisional Court referred to the parens patriae doctrine as the source for this obligation but cited no authority for that proposition. Before us, counsel for the respondents conceded that the parens patriae doctrine does not impose an affirmative duty on the Crown to pay for AE.L.'s special needs. Second, I disagree with the Divisional Court's conclusion, at para. 9, that "the plaintiffs' case is not really about the level of budget commitments or the allocation of scarce resources as a question of government policy and priority". It seems to me apparent from the pleading itself that this is precisely what the respondents' claim is all about. The respondents' claim directly targets policy decisions, especially the decision to terminate s. 30 agreements.
28Nor do I agree with the Divisional Court that a trial is required to decide whether the respondents' claim rests on a policy or operational decision. In my opinion, as in Cooper and Edwards, it is "plain and obvious" from the statute and from facts pleaded that the decision to refuse to enter s. 30 agreements falls within the definition of policy decisions, described by the Supreme Court of Canada in Brown v. British Columbia (Minister of Transportation and Highways), 1994 121 (SCC), [1994] 1 S.C.R. 420, [1994] S.C.J. No. 20, at p. 441 S.C.R.:
True policy decisions involve social, political and economic factors. In such decisions, the authority attempts to strike a balance between efficiency and thrift, in the context of planning and predetermining the boundaries of its undertakings and of their actual performance. True policy decisions will usually be dictated by financial, economic, social and political factors or constraints.
29The Minister's determination of how to fund or not to fund the special needs of a child under s. 30 of the CFSA fits squarely within this category and gives rise to "difficult discretionary decisions in the area of public policy": Cooper, supra, at para. 53; Edwards, supra, at para. 14; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74, at para. 66.
30It is equally clear that the decision to terminate s. 30 agreements does not amount to an operational decision: see Brown, supra, at p. 441 S.C.R.:
The operational area is concerned with the practical implementation of the formulated policies; it mainly covers the performance or carrying out of a policy. Operational decisions will usually be made on the basis of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness. [page525]
31This brings me to the second stage of the Cooper/Anns test. Even if, on the facts pleaded, there was sufficient proximity to give rise to a prima facie duty of care under the first stage of the Cooper/Anns test, I would find under the second stage of the Cooper/Anns test that there are residual policy considerations outside the relationship of the parties that negative the imposition of a duty. These residual policy concerns are explained in Cooper, supra, at para. 37:
These [residual policy concerns] are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. Does the law already provide a remedy? Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class? Are there other reasons of broad policy that suggest that the duty of care should not be recognized?
32Here, the law already provides a remedy that responds directly to the respondents' complaint. The allegation that the Minister acted improperly by terminating s. 30 agreements or by failing to provide adequate criteria or guidelines for their use can be addressed by way of declaratory action or an application for judicial review. This is the proper remedy given the nature of the complaint: it relates to a statutory discretion and to duties owed to the public at large.
33To recognize a private law duty of care would expose Ontario to claims for substantial damages by many families and individuals who believe that they have not received adequate services. The respondents claim on behalf of the proposed class of some 30,000 individuals general damages of $500 million, special damages of $100 million, aggravated, exemplary and punitive damages of $50 million, and damages of $50 million under the Family Law Act, R.S.O. 1990, c. F.3, s. 61. In my view, to recognize a novel duty of care that would allow claims of this nature to proceed would be contrary to sound policy in this area of the law. A private law duty of care would represent an unwarranted and undesirable intrusion that could interfere with the sound administration of the CSFA. The Minister and the child welfare authorities have a difficult task to perform and limited resources at their disposal. Their priorities should be based on the general public interest, not on the interests of particular individuals, however difficult and sympathetic their circumstances may be. As in the case argued immediately before this one, Eliopoulos v. Ontario (Minister of Health and Long-Term Care), 2006 37121 (ON CA), [2006] O.J. No. 4400, 217 O.A.C. 69 (C.A.), at para. 33, the "authorities should be left to decide where to focus their attention and resources without the fear or threat of lawsuits". [page526]
(2) Does the amended statement of claim disclose a cause of action for misfeasance in public office?
34The original statement of claim did not plead the tort of misfeasance in public office. The Divisional Court, on its own initiative, found that the respondents had pleaded the factual elements of the tort. The respondents then amended the statement of claim to assert a claim for misfeasance in public office on the basis of the allegation that the appellant issued the directive not to enter s. 30 agreements and failed to exercise its discretion to enter s. 30 agreements when it knew or ought to have known that this was unlawful and likely to cause harm to the respondents and proposed class members.
35The tort of misfeasance in public office is founded on the principle that those who hold public office and exercise public functions are subject to the law and must not abuse their powers to the detriment of ordinary citizens. As Lord Steyn put it in Three Rivers District Council v. Bank of England (No. 3), [2000] H.L.J. No. 32, [2000] 2 W.L.R. 1220, at p. 1230 W.L.R.: "The rationale of the tort is that in a legal system based on the rule of law executive or administrative power aemay be exercised only for the public good' and not for ulterior and improper purposes." In Odhavji Estate, supra, at para. 30, Iacobucci J. described the "underlying purpose" of the tort of misfeasance in public office as being "to protect each citizen's reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of public functions".
36In Odhavji Estate, supra, at para. 23, Iacobucci J. described the elements of the tort: "First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff." The ingredient of a deliberate unlawful act intended to inflict harm on the plaintiff is central to the tort: Odhavji Estate, at para. 25. Failure to discharge the functions of office because of budgetary constraints does not amount to a deliberate disregard of a public officer's duties. Rather, the tort is directed "at a public officer who could have discharged his or her public obligations, yet wilfully chose to do otherwise" (emphasis in original): Odhavji Estate, at para. 26. Likewise, Odhavji Estate makes it clear, at para. 28, that public officials must retain the authority to make decisions adverse to the interests of particular individuals even with the knowledge that a course of action will cause harm: [page527]
A public officer may in good faith make a decision that she or he knows to be adverse to interests of certain members of the public. In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office.
37In my view, the amended statement of claim fails to plead facts sufficient to satisfy the requirements of the tort of misfeasance in public office. The pleading makes bald allegations that recite the basic elements of the tort in very general terms but fails to provide material facts sufficient to demonstrate an intentional wrongdoing by a specific public officer aimed at the respondents. The pleading does not allege that a specific public officer knowingly abused his or her statutory duties for the unlawful purpose of harming these respondents. The pleading alleges only that Ontario adopted a general policy not to enter new s. 30 agreements that applied to all members of the public. This lack of specificity is not merely a technical defect -- it goes to the core of the respondents' claim. Stripped to its essentials, the misfeasance in public office claim consists of a general allegation that terminating s. 30 agreements was unlawful. Although this allegation gives rise to a public law claim which may form the basis for an application for judicial review or an action for declaratory relief, it does not provide a foundation for a tort action for misfeasance in public office. This case is readily distinguishable from Roncarelli v. Duplessis, 1959 50 (SCC), [1959] S.C.R. 121, [1959] S.C.J. No. 1. Here, the respondents complain of a general policy decision not to fund special care needs by way of s. 30 agreements that applied to all Ontario residents. In Roncarelli, a provincial premier abused his statutory discretion to punish a specific individual for conduct unrelated to the statutory scheme.
Conclusion
38For these reasons, I would allow the appeal and set aside the order certifying this action as a class proceeding on the ground that the statement of claim fails to disclose a cause of action as required by s. 5(1)(a) of the CPA. The appellants do not seek costs and accordingly I would make no order in that regard.
Appeal allowed. [page528]
