Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240122 DOCKET: COA-22-CV-0397

Gillese, Trotter and Coroza JJ.A.

BETWEEN

Christopher Michael Fowler*, Heather Lynn Fowler , Tara Marie Fowler* , a minor under 18 years by her Litigation Guardian Heather Lynn Fowler and Shawna Lynn Fowler* , a minor under 18 years by her Litigation Guardian Heather Lynn Fowler

Plaintiffs (Appellants*)

and

Family and Children’s Services of the Waterloo Region , Alison Scott and Lynne Marie Frye

Defendants (Respondents)

Counsel: Raymond Colautti and Adam Elkeeb, for the appellants James Dakin and Reema Chawla, for the respondents

Heard: September 18, 2023

On appeal from the order of Justice Kelly C. Tranquilli of the Superior Court of Justice, dated October 17, 2022, with reasons reported at 2022 ONSC 5879.

REASONS FOR DECISION

I Overview

[1] The appellant, Christopher Fowler, was a foster parent. [1] Family and Child Services of the Waterloo Region (“FCS”) placed a child in his care. That child later made allegations of sexual abuse which FCS investigated.

[2] Fowler and his daughters (“the appellants”) sued FCS and two of its employees – the respondents Scott and Frye – for breach of statutory duty, “breach of duty of care”, breach of fiduciary duty, and defamation. The appellants claimed that shortcomings and failures in the FCS investigation led to the breakdown of their family, including the apprehension of one of the appellant’s daughters from his care.

[3] The respondents brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), to strike the appellants’ pleading for failing to disclose a reasonable cause of action. They argued that FCS does not owe any of the legal duties to foster families that the appellants alleged and that the respondent-employees Scott and Frye benefit from the protection provided by s. 15(6) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”). [2]

[4] The motion judge granted the respondents’ motion because, in her view, it failed to disclose a reasonable cause of action. However, she granted the appellants leave to file a fresh as amended statement of claim based on the tort of misfeasance in public office.

[5] The appellants’ primary argument on appeal is that the motions judge erred by misinterpreting 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. The appellants assert that the motion judge misapplied Syl Apps by precluding foster parents, whom they describe as “trusted agents of FCS,” from bringing actions in negligence and breach of fiduciary duty against FCS.

[6] In Syl Apps, the Supreme Court held that child welfare agencies do not owe a duty of care to the biological parents of children under their care. The Supreme Court reasoned that if child welfare agencies owed a duty of care to a child’s biological parents, that duty would conflict with their fundamental, statutory duty of care to the child. This court’s decision in J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198, 445 D.L.R. (4th) 642, at para. 39, leave to appeal refused, [2020] S.C.C.A. No. 129 and [2020] S.C.C.A. No. 151, interpreted Syl Apps to mean 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” (emphasis added). While the appellants seek to distinguish this case on its facts, J.B.’s statement of law on the duties of child welfare agencies is clear and categorical. In our view, the motion judge correctly held that to “find that a foster parent is owed a duty of care by a child protection agency would run counter to the reasoning of these binding authorities.” Thus, despite assuming the facts pleaded to be true, the pleading disclosed no reasonable cause of action.

[7] In terms of the employee-respondents, the motion judge agreed with the appellants that s. 15(6) does not necessarily provide civil immunity to child protection workers, regardless of their conduct. However, she held that the claims asserted by the appellants lacked a “factual matrix” and failed to plead particulars or material facts in support of claims that go beyond mere negligence. She described the claims of bad faith as “no more than bald conclusory assertions rather than factual contentions.” We agree.

[8] Accordingly, and for the reasons that follow, the appeal is dismissed.

II FACTS

(1) The Statement of Claim

[9] In their statement of claim the appellants impugn the quality of the FCS’ investigation in response to the allegations of sexual abuse, and allege it and its employees acted with improper motives.

[10] The motion judge noted that the appellants’ statement of claim was limited, vague, and confusing. She observed that, although the pleading included many conclusory assertions of misconduct by FCS and its employees, it lacked particulars and material facts. These deficiencies made it challenging to conduct a r. 21.01(1)(b) analysis, even with a generous reading of the pleading.

[11] Ultimately, the motion judge found the statement of claim particularized that the respondents:

• Made false accusations about sexual abuse by Fowler;
• Advanced an investigation under false premises and pretences;
• Abused its powers;
• Failed to properly investigate;
• Failed to train and supervise its employees; and
• Acted in bad faith.

(2) The Motion to Strike

[12] The motion judge outlined the test on a r. 21.01(1)(b) motion. She assumed that the facts pleaded in the statement of claim were true and asked whether the pleading disclosed a reasonable cause of action: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17.

[13] As a preliminary matter, the motion judge considered an affidavit proffered by the appellants, which attested to and appended written service agreements between Fowler and FCS. As the motion judge correctly noted, r. 21.01(2)(b) explicitly precludes the admission of evidence on a r. 21.01(1)(b) motion. In accordance with McCreight v. Canada, 2013 ONCA 483, 116 O.R. (3d) 429, at para. 32, she asked whether the service agreements had been “sufficiently pleaded” to be treated as being incorporated by reference into the pleading. She found that the existence, terms, and alleged breaches of the agreements had not been pleaded. Accordingly, she determined that the service agreements were inadmissible.

[14] Regarding the claims against FCS, the motion judge considered the Supreme Court’s decision in Syl Apps to be a complete bar to the appellants’ case. The appellants argued that Syl Apps only held that child welfare agencies do not owe a duty of care to biological parents. But the motion judge relied on this court’s decision in J.B. for the proposition that Syl Apps ruled out a duty of care, either in negligence or a fiduciary duty, to any party other than the child.

[15] Fowler argued that he was in a unique position, given his relationship with FCS. He argued that he was a foster parent who had an agency relationship with FCS grounded in statute, regulations, and contracts that required FCS to provide for support services, training, and professional consultation as a member of the team. Fowler further argued that a duty to support and provide services to foster parents did not conflict with FCS’ overarching duty to protect children. The motion judge rejected these arguments, first because the appellants did not actually plead the existence of any contract or agreement, and second because she understood Syl Apps to be a categorical bar to duties being owed to third parties.

[16] Turning to the appellants’ claims against individual FCS employees, the motion judge considered the applicability of s. 15(6) of the CFSA, which prohibits actions instituted against employees of child welfare agencies for acts done in good faith in the execution or intended execution of their duties. She noted that the statement of claim alleged the individual respondents acted in “bad faith” in their investigations. However, she found that the statement of claim included no particularized instances of bad faith, beyond bald claims such as “making false accusations”. Therefore, she struck the claims against these individual employees.

[17] The motion judge also struck the appellants’ claim against the employees in defamation and the claim against FCS for breach of statutory duty. The appellants do not appeal from these aspects of her order. [3]

[18] Finally, the motion judge declined to grant the appellants leave to amend their statement of claim. However, she granted leave to file a fresh as amended statement of claim alleging the tort of misfeasance in public office. Although the motion judge expressed misgivings about granting this leave because of the vague nature of the pleadings, she was persuaded that it might be possible to tenably plead the tort of misfeasance in public office arising from the respondents’ alleged misconduct.

III ISSUES ON APPEAL

[19] The appellants argued the following three grounds of appeal:

1. The motion judge erred in refusing to admit or consider the affidavit evidence setting out the terms and conditions of the foster care agreement between Fowler and FCS;
2. The motion judge erred in holding that there was no cause of action in negligence, breach of fiduciary duty, or breach of contract under r. 21.01(1)(b); and
3. The motion judge erred in applying s. 15(6) of the CFSA, to bar the appellants’ action against the individual respondents.

[20] We are not persuaded that the motion judge made any such errors.

IV ANALYSIS

(1) The Motion Judge Correctly Declined to Admit Affidavit Evidence

[21] Evidence is not admissible on a r. 21.01(1)(b) motion.

[22] On the motion, Fowler proffered his affidavit. This affidavit included as exhibits foster agreements between Fowler and FCS. Fowler characterizes these agreements as contracts. The motion judge refused to admit the agreements because r. 21.01(2)(b) stipulates that “no evidence is admissible” on a r. 21.01(1)(b) motion.

[23] The appellants argue that the motion judge erred because the statement of claim asserted that Fowler was a foster parent for FCS, and foster families are required to enter into written agreements with their agencies under regulation: see General, R.R.O. 1990, Reg. 70, s. 120. Consequently, in their submission, the written agreements formed part of the pleadings.

[24] We dismiss this ground of appeal. The leading case from this court on when documents can be considered on a r. 21.01(1)(b) motion is McCreight v. Canada. In short, a motion judge can consider a document that is “incorporated by reference into the pleading and that forms an integral part of the plaintiff’s claim”: at para. 32.

[25] As the motion judge noted, the written agreements cannot be viewed as having been pleaded in the statement of claim – they are not integral to the factual matrix of the appellants’ statement of claim. She observed that Fowler did not plead the existence, terms, or breach of any terms of the agreements. Nor did the statement of claim plead that the appellants made any acts or omissions because of any such agreements. The motion judge was accordingly correct in holding the written agreements to be inadmissible.

(2) The Motion Judge Made No Error in Finding that the Pleading Disclosed No Reasonable Cause of Action

[26] A r. 21.01(1)(b) motion to strike may be granted where the pleading discloses no reasonable cause of action. A generous approach should be given to assessing the pleading.

[27] The appellants argue that the motion judge erred in law by determining that it was plain and obvious that their claims in negligence, breach of fiduciary duty, and breach of contract were not tenable.

[28] The standard of review on an appeal of a r. 21.01(1)(b) motion is correctness: Kang v. Sun Life Assurance Company of Canada, 2013 ONCA 118, 303 O.A.C. 64, at para. 27.

[29] The motion judge held that recognizing a duty of care in negligence or a fiduciary relationship between the parties would put FCS directly into conflict with its paramount duty to act in the best interests of the child. She found that it was well-settled law that child protection agencies like FCS do not owe duties to third parties in exercising their mandate under the CFSA. We agree with the motion judge. Given the binding authority of Syl Apps and J.B., the pleading discloses no reasonable cause of action in negligence or for breach of fiduciary duty.

[30] In Syl Apps, the plaintiffs were biological family members of a child who was placed into a foster home and, later, under a wardship with the Halton Children’s Aid Society. The Society was concerned that the child was being abused by her parents, which the parents vociferously denied. Over several years in care, the child attempted suicide multiple times, and was moved to various medical facilities. The family members opposed the wardship orders and eventually sued the various government institutions and officials for negligence. The crux of the claim was that the defendants had negligently treated the child as if she was a victim of abuse, which caused her separation from her family, which in turn deprived her family of a relationship with her.

[31] Two defendants – one of the medical facilities that treated the child and one of its social workers – brought a r. 21.01(1)(b) motion, which eventually made its way to the Supreme Court. For a unanimous court, Abella J. conducted an “Anns / Cooper” [4] analysis to determine whether a novel duty of care in negligence existed between the parties. Abella J. held that it was plain and obvious that no such duty existed.

[32] Abella J.’s reasoning rested on a lack of proximity between the parties. Child welfare agencies derive their purpose and authority from child welfare statutes. And under the CFSA, child welfare agencies are required to act in the best interests of the children under their care. This paramount duty forecloses the possibility of proximity to other parties whose interests could conflict with those of the children in care. As Abella J. stated, at paras. 41 and 43:

The deciding factor for me, as in Cooper and Edwards, is the potential for conflicting duties: imposing a duty of care on the relationship between the family of a child in care and that child’s court-ordered service providers creates a genuine potential for “serious and significant” conflict with the service providers’ transcendent statutory duty to promote the best interests, protection and well-being of the children in their care.

It is true that treating a child in need of protection can sometimes be done in a way that meets with the family’s satisfaction in the long term. But it is not the family’s satisfaction in the long term to which the statute gives primacy, it is the child’s best interests. The fact that the interests of the parents and of the child may occasionally align does not diminish the concern that in many, if not most of the cases, conflict in inevitable.

[33] Child welfare agencies must be able to act in the best interests of the children in their care, without fear of liability in negligence to third parties. Accordingly, there was no proximity in the relationship between the treatment facility and the parents. Since proximity is a required component of the Anns / Cooper test, this statutory backdrop was fatal to a claim for the existence of a common law duty of care.

[34] The appellants attempt to distinguish this case from Syl Apps on the basis that Abella J. did not specifically opine on a duty to foster families. They cite Superior Court judgments that support their interpretation of Syl Apps as being a narrow judgment, focused only on relationships between biological families and those involved in the medical treatment of their children. However, these lower-court decisions all predate J.B.

[35] In J.B., the plaintiffs were again family members of children in the foster system. They alleged that various child welfare agencies conducted negligent investigations of alcohol and drug abuse and then used the flawed results of those investigations in criminal and child protection proceedings. The defendants moved to strike under r. 21.01(1)(b). On appeal, this court agreed that Syl Apps created a categorical rule, which meant that the claim in negligence was not tenable.

[36] For the court, Benotto J.A. stated, at para. 39:

The underlying ratio of Syl Apps is 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. On this point, there is no principled reason to differentiate between a treatment centre and the CAS. The potential for a conflict between the child’s best interests and parental expectations was crucial to the Supreme Court’s analysis in Syl Apps – the nature of the treatment centre and the allegations at issue were not determinative in this regard: Syl Apps, at para. 41.

[37] In our view, it would be impossible to expect a child welfare agency, when investigating allegations of abuse, to act in the best interests of both the alleged victims and alleged perpetrators of that abuse. This case exemplifies why child welfare agencies do not owe a duty of care in negligence to foster families.

[38] J.B. is clear and categorical. It is plain and obvious that children’s aid societies do not owe a duty of care in negligence to any third party, because the existence of such a duty could conflict with their transcendent, statutory duty to act only in the best interests of the children under their care.

[39] In addition to claiming a duty of care in negligence, the appellants also suggest that FCS owed them a fiduciary duty. They suggest that certain hallmarks of a fiduciary duty exist in this relationship. A fiduciary duty is a duty in equity for one party to act in the best interests of another: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at paras. 29-30. But again, FCS owes a duty of loyalty mandated by the CFSA to act in the best interests of the child. Given the clear potential for the child and the foster family’s interests to conflict, FCS’s fiduciary duty must only be to the children in its care. As the motion judge noted, any fiduciary duty that would require FCS to weigh competing interests would be improper. Indeed, this court held as such in J.B., at para. 71. We therefore agree with the motion judge that there is no reasonable cause of action based on a claim for breach of fiduciary duty in this case.

[40] Lastly, the appellants argue that this case is materially different from Syl Apps and J.B., because unlike in those cases, there is a principal-agency relationship in this case. According to the appellants, this relationship arises from contract (in the form of the written agreements between the parties) and from the CFSA and its regulations.

[41] We disagree. First, as discussed above, the motion judge was correct in finding that the service agreements were inadmissible on the motion because the pleading made no reference to a contractual relationship between the parties.

[42] Furthermore, regarding the supposed statutory and regulatory basis for an agency-principal relationship that would give rise to a duty of care in negligence and a fiduciary duty, the motion judge rejected this argument because of Syl Apps. She held:

Thus, to the extent that the service agreement between [Fowler] and FCS is evidence of proximity and any duties owing by FCS to the plaintiff, in my view, those contractual obligations cannot be interpreted in a way to subordinate the agency’s overarching duty to the best interests of a child.

[43] We agree with the motion judge and adopt her analysis. To the extent that there may be statutory obligations towards foster parents under the CFSA, those obligations cannot conflict with the paramount purpose of the Act, “to promote the best interests, protection and well being of children.” Thus, even assuming that the CFSA and its regulations do give rise to a principal-agent relationship, this would not displace the holding that there is no duty of care in negligence or fiduciary duty to foster parents.

[44] Finally, the appellants ask this court to restore their purported claim for breach of contract. However, as the motion judge noted, the statement of claim does not allege a claim for breach of contract or seek a remedy based thereon. This court cannot restore a cause of action that was never in the statement of claim to begin with.

[45] Accordingly, in our view, the motion judge correctly struck the appellants’ claims against FCS under r. 21.01(1)(b).

(3) The Motion Judge Correctly Struck the Claims Against the Individual FCS Respondents

[46] The appellants argued that Frye and Scott, as FCS employees, were personally liable for their bad faith acts. In response, the respondents argued that the employees were protected from civil liability under s. 15(6) of the CFSA.

[47] At the relevant time, s. 15(6) of the CFSA read:

No action shall be instituted against an officer or employee of a society for an act done in good faith in the execution or intended execution of the person’s duty or for an alleged neglect or default in the execution in good faith of the person’s duty.

[48] The appellants argue that given the nature of the conduct complained of (i.e. an absence of good faith), s. 15(6) did not protect the employees and thus the motion judge erred in striking the claims against the employees.

[49] The motion judge accepted that s. 15(6) does not provide statutory immunity to child protection workers regardless of the nature of their alleged conduct. However, in this case, the statement of claim was struck because it did not plead any specific instances of bad faith conduct by Frye or Scott. The motion judge held that the bald allegations of bad faith were insufficient to surmount the statutory protection provided by s. 15(6). We agree.

[50] In any event, as noted above, the motion judge granted leave to issue a fresh as amended statement of claim to plead a cause of action that properly makes out the tort of misfeasance in public office. And, as the motion judge observed, this would potentially resurrect the question of whether the employee-respondents benefit from s. 15(6).

[51] In sum, we see no merit to the argument that the motion judge erred in her application of s. 15(6).

V DISPOSITION

[52] For these reasons, the appeal is dismissed.

[53] Costs of the appeal are ordered to the respondents in the amount of $2,931.38, all-inclusive.

“E.E. Gillese J.A.”

“Gary Trotter J.A.”

“S. Coroza J.A.”

[1] For ease of reference, throughout these reasons we refer to the appellant Christopher Fowler as “Fowler.” We mean no disrespect in doing so.

[2] The Child and Family Services Act was in effect at all relevant times for this action, but it has since been repealed and replaced by the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch 1.

[3] The appellants alleged in their notice of appeal that the motion judge erred by striking the claim for breach of statutory duty, but appellants’ counsel did not press this claim in their written or oral submissions.

[4] Anns v. London Borough of Merton, [1977] 2 All E.R. 492 (H.L.); Cooper v Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537.