COURT OF APPEAL FOR ONTARIO
Paciocco, Thorburn and George JJ.A.
BETWEEN
Jessie James Sprockett Patterson
Plaintiff (Appellant)
and
Eastern Residential Services Inc. and
Simcoe Muskoka Child, Youth and Family Services
Simcoe Muskoka Family Connexions*
Defendants (Respondent*)
AND BETWEEN
Jessie James Sprockett Patterson
Plaintiff (Appellant)
and
E.P., J.P., and
Children’s Aid Society of Nipissing & Parry Sound*
Defendants (Respondent*)
Raymond Colautti, for the appellant, Jessie James Sprockett Patterson
Carole Jenkins, for the respondent (COA-25-CV-1096), Eastern Residential Services Inc.2
Sheila Handler, for the respondent (COA-25-CV-1096), Simcoe Muskoka Child Youth and Family Services, Simcoe Muskoka Family Connexions
Jessica DiFederico and Dakota Forster, for the respondent (COA-25-CV-1225), Children’s Aid Society of Nipissing & Parry Sound
Heard: May 8, 2026
On appeal from the orders of Justice Jasminka Kalajdzic of the Superior Court of Justice, dated July 28, 2025, with reasons reported at 2025 ONSC 4385.
1The appellant appeals from the July 28, 2025 order made on a r. 21 motion under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which struck his statement of claim against Eastern Residential Services Inc. (“ERS”) and Simcoe Muskoka Family Connexions (“SMFC”), except for the breach of contract claim against ERS, which was struck with leave to amend. He also appeals from the order made the same day striking his statement of claim against the Children’s Aid Society of Nipissing & Parry Sound (“CASNPS”). The motions were argued together in the court below, as were the appeals before us.
2In both appeals, the appellant challenges only the motion judge’s decision to strike three causes of action: alleged breaches of his ss. 7 and 12 rights under the Canadian Charter of Rights and Freedoms, misfeasance in public office, and negligent investigation. He does not challenge the striking of the remaining tort claims.
3For the reasons that follow, I would allow the appeal against CASNPS on the misfeasance in public office claim only and would dismiss the balance of that appeal. I would dismiss the appeal against SMFC in its entirety.
I. FACTUAL BACKGROUND
4The appellant had worked intermittently for ERS as an accredited youth worker since 2009. ERS provides residential foster care services to Children’s Aid Societies and is licensed by the Ministry of Children, Community and Social Services (the “Ministry”). SMFC and CASNPS are regulated by the Ministry and governed by the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). The appellant became a foster parent in August 2019.
5Before the events giving rise to this action, B.M. was in SMFC’s custody. In February 2021, with SMFC’s consent, ERS placed B.M. in a foster home operated by the appellant. B.M. had intellectual disabilities, speech impediments, developmental delays, and generally communicated by gesturing and pointing.
6In June 2021, J.P. and E.P. applied to adopt B.M. He was placed with them two months later, in August 2021. J.P. and E.P. later reported that B.M. had disclosed that the appellant sexually assaulted him.
7SMFC initiated the ensuing investigation, and CASNPS interviewed B.M. and reported its findings to ERS. During the investigation, the appellant was prohibited from working one-on-one with children or being in his foster home when children were present.
8After the allegations were verified, SMFC and ERS removed all children from the appellant’s foster home, and ERS terminated his employment. The appellant was never criminally charged.
9After his foster home was permanently closed in May 2022, the appellant commenced the actions underlying these appeals.
II. DECISION BELOW
10The motion judge struck all causes of action without leave to amend, except for the breach of contract claim against ERS, which she struck with leave to amend.
11The motion judge struck, without leave to amend, the claims for negligence, malicious performance of a statutory duty, breach of privacy, and breach of s. 7 of the Charter, finding that they were unavailable as a matter of law and had no prospect of success. She struck the remaining claims – intimidation, breach of contract, inducing breach of contract, civil conspiracy, intentional infliction of nervous shock, intrusion upon seclusion, breach of confidence, wrongful falsehood, and misfeasance in public office – because, in her view, the pleadings contained radical defects. I will summarize the motion judge’s findings only on the causes of action at issue on appeal.
12On the negligence claim, the appellant alleged that SMFC and CASNPS (collectively, the “Societies”) should have approached the adoptive parents’ report with skepticism and that the ensuing investigation did not comply with certain statutory and regulatory standards
13The motion judge relied on J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198, 445 D.L.R. (4th) 642, leave to appeal refused, [2020] S.C.C.A. No. 129 and [2020] S.C.C.A. No. 151, which interpreted the Supreme Court of Canada’s decision in Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83. She concluded that, based on J.B. and Syl Apps, the Societies owed a duty of care only to the children in their care, not to caregivers. She rejected the appellant’s private law duty of care argument for the same reason.
14On the misfeasance in public office claim, the motion judge identified the elements of the tort and held that it was not enough for the appellant to plead that the Societies, as state actors, failed to conduct the investigation in accordance with applicable standards. The tort also requires bad faith or malice. Although the appellant alleged that the adoptive parents resented B.M.’s placement with him and maliciously instigated complaints, he pleaded no material facts showing animus by the Societies. The motion judge further found that the pleadings alleged no material facts capable of supporting bad faith by the Societies but instead rested on assumptions and speculation about motive. She concluded that, in substance, the claim was one for negligent investigation, which was not available to him.
15As for the alleged Charter breaches, the appellant’s counsel argued before the motion judge that the appellant’s ss. 7 and 12 Charter rights were engaged, although the statement of claim referred only to s. 7. The motion judge therefore considered only the alleged breach of s. 7 and the availability of s. 24 Charter remedies. The appellant alleged that the Societies breached his Charter rights by acting inconsistently with standards imposed by law and regulation. The motion judge struck the claim because it pleaded no material facts capable of constituting a breach of s. 7. She held that, on this basis alone, the Charter claim must be struck. She further characterized the claim as, in essence, one for negligent investigation “dressed up as a Charter breach” and reiterated that the Societies owed the appellant no duty of care.
III. ISSUES
16The appellant raises the following issues on appeal:
(i) Is it plain and obvious that the appellant has no cause of action for a Charter remedy based on alleged breaches of his ss. 7 and 12 Charter rights?
(ii) Is it plain and obvious that the appellant has no viable claim for misfeasance in public office?
(iii) Was J.B. wrongly decided insofar as it holds that no duty of care is owed to a parent at the investigative stage of a sexual assault complaint?
17I will begin by addressing the first and third grounds of appeal, both of which I reject. I will then turn to the second ground of appeal, which I would allow as against CASNPS only.
IV. DISCUSSION
18The standard of review on an appeal of a r. 21 motion is correctness: Fowler v. Family and Children’s Services of the Waterloo Region, 2024 ONCA 41, at para. 28, leave to appeal refused, [2024] S.C.C.A. No. 151.
1. Sections 7, 12 and 24 of the Charter
19The appellant submits that the motion judge misconceived the nature of a s. 24 Charter remedy. He argues that such a remedy is a public law response to a constitutional breach, rather than a private law cause of action. On that basis, he says it is a stand-alone claim that does not turn on private law concepts such as duty of care. He submits that the motion judge erred by characterizing his Charter claim as a “negligence action in disguise” and by concluding that there is no constitutional right to an investigation conducted in accordance with mandatory statutory and regulatory standards, including the Ontario Child Protection Standards (2016). Put another way, the appellant says the motion judge failed to consider whether those standards are intended to protect persons in his position from state overreach affecting their s. 7 Charter rights.
20I am not persuaded by these submissions.
21In his statements of claim, the appellant pleaded that the Societies are state actors for the purposes of ss. 7 and 24 of the Charter and that they could “affect the legal rights, powers, privileges, immunities, duties or liabilities of the [appellant], and … affect his eligibility to receive, or continue with his career as a child and youth care worker, a foster parent provider, and other work within the Child Welfare sector.”
22He further pleaded that the Societies breached standards under the CYFSA, the Ontario Child Protection Standards (2016), and related regulations. The alleged investigative deficiencies include unqualified or inadequately trained investigators, improper interview methods and techniques, a failure to obtain information from collateral contacts, and a failure to exercise reasonable judgment. He also alleges that the Societies acted unreasonably, violated the principles of fundamental justice, and infringed his s. 7 Charter right to security of the person. These allegations were advanced in support of both the Charter and negligence claims. However, neither statement of claim identifies the specific conduct said to breach s. 7, explains how that conduct amounts to a constitutional breach, or distinguishes the Charter claim from the negligence claim.
23I agree with the motion judge that, properly characterized, these claims sound in negligence.
24The appellant relies on authorities that hold a parent’s security of the person may be engaged in child protection proceedings and asks this court to extend that principle to foster parents: see, e.g., New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46.
25In my view, the appellant’s position as a foster parent is not equivalent to that of a parent. Parental status is central to personal identity, and the state-imposed loss of that status may carry serious stigma and emotional consequences. The appellant was not in that position. B.M. had only been in the appellant’s care for about six months before J.P. and E.P. applied to adopt him, and B.M. had already been removed from the appellant’s care when the investigation began. That removal did not engage the appellant’s identity, companionship interests, or social standing in the same way as the loss of parental status. In other words, the Societies neither usurped, nor attempted to usurp, a parental role, nor did they “relieve [the appellant] of custody”: see e.g., G.(J.), at para. 69. Simply put, a foster home does not involve the same degree of intimacy and privacy as a parental home.
26Although s. 12 of the Charter was not pleaded in the statement of claim, the appellant argues that he was subjected to cruel and unusual treatment because he was punished for crimes he did not commit. This submission also attempts to recast what is in substance a negligence claim as a Charter claim. It too must fail.
27Section 12 protects against state conduct that inflicts physical or mental pain and suffering through degrading or dehumanizing treatment or punishment, thereby safeguarding human dignity and the inherent worth of the individual: R. v. Hills, 2023 SCC 2, [2023] 1 S.C.R. 6, at para. 32, citing Quebec (Attorney General) v. 9147‑0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426, at para. 51. The appellant’s s. 12 right was not engaged because neither the Societies’ investigation nor its consequences amounted to treatment or punishment.
28Because the pleadings do not disclose viable claims under either ss. 7 or 12 of the Charter, this ground of appeal must fail.
2. J.B. v. Ontario (Child and Youth Services)
29The appellant submits that, contrary to this court’s decision in J.B., child welfare agencies may, in some circumstances, owe a duty of care to parents and foster parents of the children they are mandated to protect.
30In Syl Apps, the Supreme Court held that the Children’s Aid Society did not owe a duty of care to biological parents because such a duty would conflict with the statutory duty owed to children in its care. In J.B., this court interpreted Syl Apps and similarly held that, “where entities exist to protect and provide for children’s best interests, to avoid conflicting duties, they must only owe a duty of care to the children they serve”: at para. 39. The appellant argues that this interpretation reads Syl Apps too broadly. In his view, Syl Apps did not establish a categorical rule that a Children’s Aid Society can only owe a duty of care to the children they serve and never, under any circumstances, to a parent or foster parent.
31The appellant relies on para. 49 of the British Columbia Court of Appeal’s decision in Harrison v. British Columbia (Children and Family Development), 2010 BCCA 220, 319 D.L.R. (4th) 251, leave to appeal refused, [2010] S.C.C.A. No. 293, to argue that a Children’s Aid Society may owe a duty of care to someone other than a child where doing so would not conflict with the CYFSA’s overriding mandate. He submits that this is such a case because the allegations were made purportedly on behalf of a child who could not communicate, and because B.M. was no longer in his care. In those circumstances, investigating past allegations of sexual abuse would not place the Societies in a potential conflict with the child. Nor, he adds, would a foster parent have parental expectations about the care a Crown ward would receive after removal from the foster home.
32I reject the appellant’s submission that any conflict in the Societies’ duties ended once B.M. was removed from his care. Even then, the Societies’ obligation to protect B.M. remained in tension with the duty of care the appellant says they owed him in investigating the alleged sexual abuse. Section 1(1) of the CYFSA confirms that priority: “The paramount purpose of this Act is to promote the best interests, protection and well-being of children.”
33In short, the Societies’ duty of care was owed to children who are, or may be, in the appellant’s care and whose safety may therefore be at risk. Not to him.
34Following J.B. and Syl Apps, this court reaffirmed in Fowler that a child welfare agency investigating abuse allegations cannot be expected to act in the best interests of both the alleged victims and the alleged perpetrators: at para. 37. This court also accepted that child welfare agencies, in exercising their statutory mandate, do not owe duties of care to third parties-that is, to anyone other than the children they serve: at para. 29.
35The law is settled: the appellant cannot maintain a negligence claim against the Societies. It is therefore plain and obvious that this cause of action will fail.
3. Misfeasance in Public Office
36I now turn to misfeasance in public office. I will begin with the governing legal principles and then explain why this ground of appeal fails against SMFC but succeeds in relation to CASNPS.
a. Applicable Legal Principles
37The tort of misfeasance in public office has two elements as articulated in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 23:
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.
38To properly plead the tort, a plaintiff must allege material facts showing that the defendant: (i) was a public officer; (ii) deliberately engaged in unlawful conduct in that capacity; (iii) knew the conduct was unlawful and likely to harm the plaintiff; and (iv) legally caused compensable injury: Meekis v. Ontario, 2021 ONCA 534, 158 O.R. (3d) 1, at para. 73.
39Misfeasance in public office requires that the public officer have subjective knowledge, or be reckless or willfully blind to the fact, that their conduct is unlawful and likely to harm the plaintiff: Hartman v. Canada (Attorney General), 2026 ONCA 270, 9 C.C.L.T. (5th) 315, at para. 55, leave to appeal to S.C.C. requested, 42403. The tort also requires particularized allegations of bad faith or malice.
40Where misfeasance in public office is alleged, the defendant – in this case, the Societies – must be able to understand precisely what conduct is said to be wrongful. As this court stated in Hartman, at para. 60, the pleading must identify “circumstances, particulars, or facts … upon which a trier of fact could infer or conclude that the public officer’s conduct was deliberate and unlawful, with knowledge of the potential consequence to the plaintiff.” On a r. 21 motion, a bare allegation of malice is insufficient. Rule 25.06(8) of the Rules similarly requires that, “[w]here fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.” The appellant submits that his statements of claim are amplified by the responses to the demands for particulars, and that those responses plead facts from which malice can be inferred.
b. SMFC
41As against SMFC, the statement of claim alleges that its employees lacked the necessary experience and qualifications, failed to comply with applicable standards, and performed their duties improperly. These allegations amount to, at most, a claim in negligence. The further allegation that SMFC employees failed to approach the adoptive parents’ account of B.M.’s allegations with sufficient skepticism is likewise a claim in negligence. Although the statement of claim uses the language of calculation and intentionality, those conclusory assertions do not support a finding, or even an inference, of malice. Nor does the appellant’s response to the demand for particulars add material facts capable of supporting the misfeasance claim. Unlike the response provided in relation to CASNPS, discussed below, the response in SMFC’s case largely refers back to the statement of claim. In my view, that is insufficient to plead the elements of misfeasance in public office.
42The appellant relies on Meekis, where discrimination was pleaded as the improper purpose. That case does not assist him. Meekis involved allegations of a pattern of discriminatory conduct toward Indigenous communities. The appellant pleads no comparable facts against SMFC and does not allege that it exercised its discretion for a discriminatory purpose.
43Misfeasance in public office is an established tort, not a novel one. There is therefore no reason to relax the ordinary pleading requirements. As against SMFC, the appellant did not meet those requirements. As such, the motion judge did not err in concluding that the appellant failed to plead a viable claim for misfeasance in public office.
c. CASNPS
44CASNPS advances arguments similar to SMFC’s. However, when the statement of claim is read along with the response to the demand for particulars, the claim against CASNPS is pleaded differently in material respects.
45The appellant submits that the response to the demand for particulars supplements the statement of claim3 and that, on a r. 21 motion, the pleaded facts in that response must be taken as true unless they are patently ridiculous or incapable of proof: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 22-23. The appellant says those facts either establish malice or support an inference of malice. In particular, he alleges that CASNPS conducted a biased investigation and gathered and assessed information through “confirmatory bias, gender bias, premature confirmatory distortions, and hindsight bias.” He further alleges that the adoptive parents, who harboured animus toward him, “co-opted” CASNPS into furthering a conspiracy to harm him. Relying again on this court’s decision in Meekis, the appellant argues that discriminatory conduct can satisfy the unlawful-conduct element of misfeasance in public office.
46CASNPS submits that the appellant has not pleaded material facts capable of establishing deliberate and unlawful conduct. It says the allegations are bald and, in substance, amount to no more than negligence. CASNPS also distinguishes Meekis on the basis that, unlike in that case, the appellant does not plead a discriminatory exercise of discretion or material facts capable of supporting an inference of discrimination.
47I agree that the statement of claim, standing alone, does not adequately plead misfeasance in public office. The core allegations are that CASNPS employees failed to conduct a proper forensic investigation, used inappropriate interviewing techniques, and did not approach the adoptive parents’ sexual abuse allegation with sufficient skepticism. Although the statement of claim alleges bad faith by the adoptive parents, the allegations against CASNPS and its investigators largely concern failures to remain child-centred, comply with applicable standards, exercise reasonable judgment, and use valid, unbiased interviewing methods.
48The appellant further pleads that CASNPS failed to conduct the investigation reasonably, fairly, in good faith, and without bias, and that CASNPS and the adoptive parents intimidated him. These allegations extend beyond the investigation itself to its aftermath and consequences for the appellant.
49Although the statement of claim alleges bad faith in general terms, it does not plead material facts particularizing dishonesty, bad faith, or malice by CASNPS. Nor does it explain how CASNPS knowingly or recklessly abused its statutory powers for an unlawful purpose. As noted, the statement of claim identifies the harm the appellant says he suffered, but it does not plead the knowledge or unlawfulness elements of the tort.
50However, the information set out in the response to the demand for particulars, summarized in the discussion that follows, is capable of supporting inferences of unlawfulness and malice. At the pleadings stage, it is generally sufficient to identify a “narrow window of opportunity” for the alleged misfeasance to have occurred: Granite Power Corporation v. Ontario (2004), 2004 CanLII 44786 (ON CA), 72 O.R. (3d) 194 (C.A.), at para. 40, leave to appeal refused, [2004] S.C.C.A. No. 409.
51The response to the demand for particulars differs from the broad allegations against SMFC. It specifically identifies a CASNPS worker and alleges that she displayed hostility towards him during the adoption process. Read together with the pleaded malice of the adoptive parents, that allegation is capable of supporting an inference of malice against CASNPS.
52Against that backdrop, the appellant points to facts that, he says, support the allegation that CASNPS collaborated with the adoptive parents. He alleges that a CASNPS worker was in charge of transitioning B.M. from his home to the adoptive parents’ home and that she conducted herself in an unprofessional manner, displaying a hostile attitude and creating unnecessary tension during the adoption process. The appellant further alleges that:
In a separate event, in support of BM’s transition the [adoptive parents] were informed by the [appellant] of BM’s historically documented attention seeking behaviour. Passing along this supportive information resulted in a surprising collaborative and unnecessary complaint letter sent from [the CASNPS worker] and the [adoptive parents] to ERS. [Emphasis added.]
53Given the appellant’s allegation that the adoptive parents harboured animus and made several complaints against him, the allegation that the CASNPS worker was also hostile towards him and joined with the adoptive parents in complaining to his employer could support an inference of bad faith and bias by that worker, who was at the time clearly acting in her capacity as a CASNPS representative. It could also be inferred that she acted at the adoptive parents’ behest, or was improperly influenced by them, and that by knowingly advancing their bad-faith efforts she acted intentionally and unlawfully.
54The appellant’s response to the demand for particulars also alleges that the CASNPS representative who interviewed B.M. knew him. It further alleges that, before B.M.’s interview, the adoptive parents — who were motivated to have the appellant’s foster home closed — spoke with that representative and gave extensive direction on how B.M.’s communications should be interpreted. This, at the very least, suggests a lack of neutrality, and could, when considered with everything else that is pleaded, support an inference of something far worse.
55To be sure, a failure by CASNPS to follow applicable statutory or regulatory standards, or to use optimal investigative techniques, would not by itself sustain a claim for misfeasance in public office. But, as discussed above, the particulars go further. In my view, a trier of fact could find that CASNPS intentionally departed from its usual practices and methods of gathering information to advance the adoptive parents’ pleaded malicious objective.
56Read together, the statement of claim and the supplemental material facts in the response to the demand for particulars distinguish the claim against CASNPS from the claim against SMFC. The particulars concerning CASNPS’s conduct, including the role of its workers in the interviews and the adoption process, are capable of supporting the necessary inferences at the pleadings stage. As it is not plain and obvious that this aspect of the appellant’s claim will fail, it should not have been struck.
V. CONCLUSION
57For these reasons, I would allow the appeal with respect to the misfeasance in public office claim against CASNPS and would set aside the order striking it. I would dismiss the balance of the appeal against CASNPS and dismiss the appeal against SMFC in its entirety.
58I would order the appellant to pay SMFC costs fixed in the all-inclusive amount of $12,000. Given the divided success, I would make no costs order as between the appellant and CASNPS.
Released: July 27, 2026 “D.M.P.”
“J. George J.A.”
“I agree. David M. Paciocco J.A.”
“I agree. Thorburn J.A.”
Footnotes
- By discretionary order of the court, the names of the child and the adoptive parents have been anonymized in the title of proceedings as they were in the court below to protect the identity of the child. No person shall publish or make public the child or adoptive parents’ identities.
- Eastern Residential Services Inc., E.P. and J.P. were not named as respondents on appeal. Carole Jenkins appeared for Eastern Residential Services Inc. but made no oral or written submissions.
- Counsel for CASNPS agreed during oral argument that the appellant’s response to their demand for particulars can be considered alongside the statement of claim. The position of counsel for SMFC is that the information contained in CASNPS’s response to the demand for particulars should not be used against SMFC.