Court File and Parties

Citation: T.N.B v. Children’s Aid Society of Halton, 2016 ONSC 1684 Divisional Court File Nos.: 15-597 and 15-589 Date: 2016-03-09 Superior Court of Justice – Ontario Divisional Court

Re: T.N.B., Plaintiff/Respondent And: The Children’s Aid Society of the Regional Municipality of Halton and Spectrum Foster Care Services Inc., Defendants/Moving Parties

Before: L.A. Pattillo J.

Counsel: Robert A. Cobham, Q.C., for the Plaintiff/Respondent Elizabeth K.P. Grace and Anna Matas, for the Defendant/Moving Party the Halton Children’s Aid Society Lauren N. Bloom and Zofia Vorontsova, for the Defendant/Moving Party Spectrum Foster Care Services Inc.

Heard: In Writing

Endorsement

Introduction

[1] The Children’s Aid Society of Regional Municipality of Halton (the “Society”) and Spectrum Foster Care Services Inc. (“Spectrum”) (collectively the “Defendants”) jointly seek leave to appeal from the order of Madam Justice K. P. Wright dated October 27, 2015, which dismissed the Defendants’ motions to strike the statement of claim pursuant to rule 21.01(1)(b).

[2] The Plaintiff’s claim arises from allegations that T.H., then a 15 year-old boy, committed assault and sexual assault on her while he was a foster child in her care. At the time of the allegations, T.H. was a Crown ward under the care of the Society. The Plaintiff alleges that the Society and Spectrum, who is an independent foster care service provider, licenced by the Ministry of Children and Youth Services, failed to disclose to her all material information concerning the behaviour of T.H. before she agreed to take him into her care. The Plaintiff claim is based on negligence, negligent misrepresentation, breach of fiduciary duty and breach of contract.

[3] In her endorsement dismissing the Defendants’ motions, the motions judge addressed briefly the facts as pleaded and each of the claims asserted by the Plaintiff. She set out the three components necessary to establish a duty of care and concluded, based on the statement of claim, that none of the three components could be excluded at that stage. She then noted that the law was not settled concerning the duty as alleged by the Plaintiff and concluded that it was not plain and obvious that the Plaintiff’s claim in negligence would fail. She then considered both the breach of contract claim and the breach of fiduciary claim and concluded that it was not plain and obvious that either of those claims would fail.

Test for Leave to Appeal

[4] The test for granting leave to appeal under rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[5] Under rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).

[6] Under rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

Analysis

[7] In my view, leave to appeal should not be granted. The Defendants have not established that they meet either of the tests set out in rule 62.02(4). First, the Defendants have not pointed to any conflicting decisions. All of the decisions they rely on are distinguishable. Further, the Defendants concede that the question of whether a duty of care is owed by them to prospective foster parents has not yet been decided. Whether such a duty exists and the extent of it should be decided on a full factual record.

[8] Further, based on the reasons of the motions judge, in my view there is no reason to doubt the correctness of the motions judge’s decision. The test on a motion pursuant to rule 21.01(1)(b) is very high. It must be “plain and obvious” that the claim cannot succeed. The motions judge correctly set out the test and considered each of the Plaintiff’s claims. She considered the arguments of the Defendants. Specifically, she was alert to the fact that the Defendants must act in the best interests of T.H. Nevertheless, she was of the view that it was not plain and obvious that the Plaintiff’s claims as pleaded could not succeed.

[9] The Defendants further submit that the motions judge failed to address their request to set a timetable. The Plaintiff submits that it was never addressed before the motions judge. Regardless, if the parties require a timetable they should agree on one, failing which they should schedule a practice court appointment to have a timetable set.

[10] The Defendants’ motion is dismissed. The Plaintiff is entitled to her costs on a partial indemnity basis. Based on the cost outlines filed, the Plaintiff’s costs are fixed at $6,500 inclusive of disbursements and taxes. Payable forthwith by the Defendants jointly.

L. A. Pattillo J.

Date of Release: March 9, 2016