WARNING

THIS IS AN APPEAL UNDER THE CHILD AND FAMILY SERVICES ACT AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:

45(7) The court may make an order,

(a) excluding a particular media representative from all or part of a hearing;

(b) excluding all media representatives from all or a part of a hearing; or

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45(9) The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

Court of Appeal for Ontario

Docket: C63675

Judges: Sharpe, Rouleau and Fairburn JJ.A.

Between

H.A.G. Plaintiff (Appellant)

and

Family and Children's Services Niagara, Dyan Pariak Defendants (Respondents)

Counsel:

• H.A.G., acting in person
• Carole Jenkins, for the respondents

Heard: November 2, 2017

On appeal from: the order of Justice Kenneth G. Hood of the Superior Court of Justice, dated March 22, 2017.

Reasons for Decision

[1] The appellant commenced a claim against the Family and Children's Services Niagara and one of its employees, claiming damages for the intentional infliction of mental suffering, negligence, and punitive damages. This is an appeal from an order made pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, dismissing all claims in negligence as disclosing no reasonable cause of action and all claims against the employee.

[2] Relying upon Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83, the motion judge concluded that the respondents' sole duty of care was to the children, and not the parents. As such, the claim in negligence could not proceed. The appellant maintains that the motion judge erred by failing to distinguish Syl Apps from this case, including on the basis that the respondents' negligent actions at least partially pre-dated the apprehension of the children.

[3] We see no error in the motion judge's approach or the conclusion reached. Both in the lead up to and following apprehension of the children, the respondents' duty of care was to the children and not the parents. We agree with the motion judge that in the circumstances of this case there could be no duty of care to the appellant because of the clear conflict that would arise when considering the respondents' duties to the children.

[4] The appellant also maintains that the motion judge erred in finding that s. 15(6) of the Child and Family Services Act, R.S.O. 1990, c. C. 11 ("CFSA"), provided immunity to the named employee. We disagree. The motion judge specifically reviewed the factual allegations set out in the statement of claim pertaining to the employee. We agree with his determination that while the pleadings may address allegations of negligence against the employee, they do no more than that. As such, the dismissal of the claim in negligence made it unnecessary to consider the application of s. 15(6) of the CFSA. To the extent that it was necessary to consider the application of this provision that provides immunity to employees for acts done in good faith in the execution of a person's duty, there are no facts supporting an allegation that the employee acted in anything other than good faith. Therefore, the immunity provision applies.

[5] As accepted by the respondents on appeal, the appellant is not without resort to the other aspects of her claim. Only the claims in negligence and against the individual employee have been struck. Her pleadings otherwise remain intact. Without commenting on the merit of the ongoing claim, we note that the appellant is still able to pursue her claim for the intentional infliction of mental suffering by the respondent, the Family and Children's Services Niagara.

[6] The appeal is dismissed.

[7] We award costs to the respondents fixed in the amount of $4,000 inclusive of disbursements and HST.

"Robert J. Sharpe J.A."

"Paul Rouleau J.A."

"Fairburn J.A."