Court File and Parties

COURT FILE NOS.: CV-16-558896 CV-16-563305 CV-16-563304 CV-18-589318 CV-17-588649 CV-17-588648 CV-18-591059

DATE: 20190501

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: C.R., C.H., J.H., and C.H.H., by his litigation guardian C.R., Plaintiffs

-and-

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, CHILDREN’S AID SOCIETY OF THE REGIONAL MUNICIPALITY OF WATERLOO, ANGELA BRENNER, MICHAEL BUCHNEA, JAMES WOODSTOCK, THE HOSPITAL FOR SICK CHILDREN, GIDEON KOREN, JOEY GARERI, and JULIA KLEIN, Defendants

AND:

Y.M., Plaintiff

-and-

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO, THE HOSPITAL FOR SICK CHILDREN, CHILD PROTECTION WORKER(S) JOHN DOE / JANE DOE, GIDEON KOREN, JOEY GARERI, VIAGUARD INC., also known as Accu-Metrics, HARVEY TENENBAUM, and KYLE TSUI, Defendants

AND:

T.W., K.B., and K-L.B., Plaintiffs

-and-

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, FAMILY YOUTH AND CHILD SERVICES OF MUSKOKA, THE HOSPITAL FOR SICK CHILDREN, GIDEON KOREN, JOEY GARERI, and MARILYN SMART, Defendants

AND:

M.MD., D.W., and B.W. by his litigation guardian M.MD., Plaintiffs

-and-

THE CHILDREN’S AID SOCIETY OF THE NIAGARA REGION, CHILD PROTECTION WORKER(S) JOHN DOE / JANE DOE, THE HOSPITAL FOR SICK CHILDREN, GIDEON KOREN, JOEY GARERI, and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Defendants

AND:

C.T., Plaintiff

-and-

HOSPITAL FOR SICK CHILDREN, GIDEON KOREN, JOEY GARERI, THE CHILDREN’S AID SOCIETY OF THE REGIONAL MUNICIPALITY OF WATERLOO, THE CHILDREN’S AID SOCIETY OF HAMILTON, CHILD PROTECTION WORKER(S) JOHN DOE / JANE DOE, and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Defendants

AND:

J.TH., C.J.TH, and J.B.TH, by his litigation guardian J.TH., Plaintiffs

-and-

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE HOSPITAL FOR SICK CHILDREN, CHILDREN’S AID SOCIETY OF THE REGION OF PEEL, GIDEON KOREN, JOEY GARERI, and CHILD PROTECTION WORKER(S) JANE DOE / JOHN DOE, Defendants

AND:

J.B., Plaintiff

-and-

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTER OF CHILD AND YOUTH SERVICES and the MINISTER OF HEALTH AND LONG-TERM CARE, CHILDREN’S AID SOCIETY OF THE REGIONAL MUNICIPALITY OF WATERLOO, HOSPITAL FOR SICK CHILDREN, GIDEON KOREN, and JOEY GARERI, Defendants

BEFORE: Darla A. Wilson J.

COUNSEL: Julie Kirkpatrick, Counsel for the Plaintiffs R., M., W., MD., T., TH. Katherine Hensel, Counsel for the Plaintiff J.B. Simon Clements and Christian Breukelman, Counsel for the Defendant Julia Klein Jeremy Glick, Christopher Wayland and Daniel Guttman, Counsel for Her Majesty the Queen in Right of Ontario Elizabeth Bowker and Nicola Brankley, Counsel for the Defendant Children’s Aid Societies

HEARD: December 20, 21, 2018, and January 16, 2019

Endorsement

[1] In my capacity as the Case Management judge dealing with the numerous claims arising from the hair follicle testing done at the Motherisk Drug Testing Laboratory (“Motherisk Lab”, “Motherisk”, or “Lab”) at the Hospital for Sick Children (“HSC”), I heard motions to strike the claims of certain plaintiffs pursuant to Rule 21 for failing to disclose a reasonable cause of action against specific defendants in seven actions. The various Children’s Aid Societies (“CAS”) as well as Her Majesty the Queen in Right of Ontario (“HMQ”) brought the motions, along with an individual defendant, Ms. Julia Klein (“Klein”). Although the various Children’s Aid Societies are named differently depending on the location of the office, I will refer to these defendants collectively as the CAS.

[2] Rule 21 motions were brought in the following files:

• Motion by the Defendants Children’s Aid Society of the Regional Municipality of Waterloo, Angela Brenner, Michael Buchnea, and James Woodstock, and by the Defendant Julia Klein, and by the Defendant HMQ in action CV-16-558896 with C.R. as Plaintiff (the “R. Action”);
• Motion by the Defendant The Catholic Children’s Aid Society of Toronto, and by the Defendant HMQ in action CV-16-563305 with Y.M. as Plaintiff (the “M. Action”);
• Motion by the Defendants Family Youth and Child Services of Muskoka and Marilyn Smart, and by the Defendant HMQ in action CV-16-563304 with T.W. as Plaintiff (the “W. Action”);
• Motion by the Defendant Children’s Aid Society of the Niagara Region, and by the Defendant HMQ in action CV-18-589318 with M.MD. as Plaintiff (the “MD. Action”);
• Motion by the Defendants, Children’s Aid Society of the Regional Municipality of Waterloo and Children’s Aid Society of Hamilton, and by the Defendant HMQ in action CV-17-588649 with C.T. as Plaintiff (the “T. Action”);
• Motion by the Defendant Children’s Aid Society of the Region of Peel, and by the Defendant HMQ in action CV-17-588648 with J.TH. as Plaintiff (the “TH. Action”); and
• Motion by the Defendant Family and Children’s Services of the Waterloo Region, and by the Defendant HMQ in action CV-18-591059 with J.B. as Plaintiff (the “B. Action”).

[3] The R., T., W., MD., TH., and M. Plaintiffs are all represented by Ms. Kirkpatrick. J.B. is represented by Ms. Hensel.

[4] The motions were argued over the course of three days. After the completion of oral argument, counsel requested the opportunity to make further submissions on a relevant case, S.H. v. Children’s Aid Society of Haldimand-Norfolk, 2019 ONSC 848 (“S.H.”), which was released after the motion was argued. I agreed to receive further written submissions from counsel on this case and those were received and reviewed.

Background

[5] These claims all arise from the use of hair follicle testing for drug and alcohol abuse done at the Motherisk Lab at HSC, which results were used in family and criminal cases, and in child welfare investigations and proceedings. Ontario established an independent review following controversy about the reliability of hair tests performed by the Motherisk Lab. The Honourable Susan Lang conducted the review and delivered a report dealing with, among other things, the reliability of the hair strand tests conducted at the Motherisk Lab between 2005 and 2015 and how the Lab was operated during that time. Ontario subsequently established the Motherisk Commission (“Commission”) as an independent commission of inquiry in 2016 to review various cases and to produce a report.

[6] In each of the actions, at least one of the Plaintiffs is a biological parent of a minor Plaintiff and it is alleged that as a result of flawed laboratory tests done at the Motherisk Lab, which were incorrect and unreliable, the Plaintiffs’ children were apprehended by the local CAS, and in some cases, the children were made Crown wards without access and eventually adopted. Essentially, all of the cases involve the temporary or permanent loss of a child. Most of the Plaintiffs are family members of children who were the subjects of CAS investigations and child welfare proceedings. In some of the actions, the children who were the subject of the investigations by the CAS are named as Plaintiffs.

[7] The Plaintiffs have sued a number of Defendants, including the HSC and Dr. Koren, the physician who was the Director of the Motherisk Lab. As well, the Plaintiffs have included HMQ as well as the CAS and some employees as Defendants; in one case, an individual, Klein, who was retained as an expert to give evidence in the underlying child welfare proceedings, is a named Defendant. Some of the moving parties have delivered Statements of Defence.

[8] In all of the actions, the Plaintiffs claim the CAS and HMQ, as well as in one case Klein, owed the Plaintiffs a duty of care which was breached. The Plaintiffs claim damages against HMQ and the CAS based in negligence, negligent investigation and supervision, negligent and/or intentional infliction of mental distress, bad faith, breach of fiduciary duty of care, and misfeasance in public office. The Plaintiffs assert there were breaches of ss. 7 and 8 of the Canadian Charter of Rights and Freedoms (“the Charter”) because HMQ allowed the CAS to demand bodily samples from the Plaintiffs. It is alleged these samples were tested improperly and this infringed section 7 rights.

[9] The Plaintiffs do not claim HMQ had any direct involvement in the testing that was undertaken; rather, they allege that HMQ owed them a duty to oversee the various CAS involved, as well as to oversee the HSC and the Motherisk Lab, and that there was a failure to make inquiries and satisfy itself that proper procedures were being followed. The Plaintiffs allege HMQ “simply assumed the accuracy of the drug results from the Motherisk Lab”. Further, the Plaintiffs allege that HMQ failed to ensure that the Motherisk hair tests were reliable and appropriate for use and they failed to prevent the CAS from using the Motherisk hair tests after concerns about the reliability of the testing surfaced.

[10] J.B. alleges, in addition, that HMQ owed a fiduciary duty of care having regard to the overrepresentation of Indigenous children in the system along with the history of Indigenous people, and that there was a duty to ensure that decisions were made recognizing the constitutional rights of the child, family, and the First Nation community. J.B. pleads as well there was a violation of s. 35 of the Constitution Act, 1982 (“the Act”) and that the Truth and Reconciliation Commission’s Final Report (“TRC Report”) was disregarded. In the same fashion as the other Plaintiffs, J.B. asserts that HMQ failed to properly supervise Motherisk Lab and ensure that the testing done was proper and that the CAS were not relying on unreliable hair testing results in the course of their investigations.

[11] The Plaintiffs allege the various CAS were negligent in their investigations – specifically that they were: (a) negligent by relying on the Motherisk tests as part of the child protection investigations, (b) they breached the duty of cared owed to the Plaintiffs by failing to ensure that the testing done at Motherisk was completed in accordance with the appropriate standards, and that reliable, accurate, or complete information was placed before the Court in the child welfare proceedings, and (c) permitted the Court to be misled by calling expert evidence based on the Motherisk testing. It is also alleged the CAS breached the section 7 Charter rights of the Plaintiffs by apprehending the children based on flawed drug testing. Specifically, it is alleged the CAS was negligent in assuming the accuracy of the Motherisk drug test results. Additionally, in the claims against CAS, J.B. alleges violations of s. 35 of the Act.

Rule 21.01(1)(b)

[12] Rule 21.01 permits the court to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. In a Rule 21 motion, the judge must takes the facts as pleaded as true and it is on this basis that the potential success of the claim will be measured. No evidence is admissible on a Rule 21 motion without the leave of the court or the consent of the parties.

[13] The moving party must prove that, assuming the facts pleaded are true and proven, it is plain and obvious there is no reasonable cause of action: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321.

[14] Since the allegations against HMQ and CAS are the same in all of the seven cases on which these motions are brought, it was agreed the argument would be made by all counsel in the R. case, and it would apply to the other cases, as would my ultimate decision.

[15] The allegations against Klein in the R. action are different than the claims made against the other moving defendants and thus will be dealt with separately in these Reasons.

[16] As well, the claims in the B. Action contain certain different allegations and I will deal with those motions separately from the motions in the R., M., W., MD., T., and TH. Actions.

The Motions in the R., M., W., MD., T., and TH. Actions

Background in the R. Action

[17] C.R.’s two children were apprehended from her care after birth in 2007 and 2008 due to concerns of drug abuse. The apprehension occurred after positive hair follicle testing done at Motherisk. C.R. was only permitted supervised access to the children. The Plaintiff J.H. was C.R.’s partner at the time; the minor Plaintiff C.H.H. is C.R.’s older child. By order of the Court dated April 14, 2009, the children were made Crown wards for the purposes of adoption. The order was not appealed. C.R. brought a judicial review application which was dismissed by the Divisional Court.

[18] The Defendants HMQ and Children’s Aid Society of the Regional Municipality of Waterloo, Angela Brenner, Michael Buchnea, and James Woodstock seek to dismiss all claims asserted against them. I note that in the Fresh as Amended Statement of Claim, Ms. Brenner, and Messrs. Buchnea and Woodstock are named as Defendants in the action. However, they are not identified in the body of the Statement of Claim and there are no specific allegations made against them. I presume they were employees of the CAS but there is absolutely no reference to them in the claim.

Background in the T. Action

[19] C.T. is the mother of a child who was apprehended by the CAS in 2012, following Motherisk testing. She identifies as an Indigenous woman. By court order dated December 15, 2015, the child was made a Crown ward for the purposes of adoption. This court order was appealed, and the appeal was dismissed.

[20] The Plaintiff alleges the CAS was negligent in relying on the Motherisk testing and seeks damages based in negligence, negligent investigation, negligent and/or intentional infliction of mental distress, bad faith, breach of fiduciary duty, misfeasance of public office, abuse of power, abuse of process, and breach of s. 7 Charter rights.

[21] The Rule 21 motion is brought by the Defendants HMQ and the Children’s Aid Society of the Regional Municipality of Waterloo.

Background in the M. Action

[22] Y.M. is the mother of a child who became the subject of a child welfare proceeding in June 2011. Y.M. was required to undergo hair strand tests at Motherisk in September 2012, due to concerns about alcohol and drug use. The test results were positive and the child’s father obtained a temporary custody order on October 9, 2012. The court made a final order on August 2, 2013 granting the biological father custody with Y.M. having limited access to the child. That order was not appealed. The Plaintiff brought a judicial review application and the Motherisk Commission was a Respondent. The Plaintiff complained of the manner in which her case was dealt with by the Commission. The application was dismissed by the Divisional Court.

[23] The Defendants HMQ and the Catholic Children’s Aid Society of Toronto (“CCAS”) seek to strike the entire claim against them.

Background in the W. Action

[24] The Plaintiff T.W. is the mother of two children who were the subjects of child welfare proceedings in 2009; her children are also Plaintiffs. T.W. underwent hair follicle testing at Motherisk and she alleges the results of these tests caused the children to be removed from her care to foster homes, with her having supervised access. T.W. alleges that she challenged the results of the testing and was eventually able to disprove the Motherisk tests. Damages are sought for breach of s. 7 Charter rights.

[25] There is a final court order of February 16, 2012 which ordered joint custody between T.W. and the children’s father. The Defendant Marilyn Smart was the CAS worker assigned to handle the child protection investigation.

[26] The motion is brought by the Defendants HMQ, Family Youth and Child Services of Muskoka, and Marilyn Smart to strike the claims of the Plaintiff T.W. only.

Background in the MD. Action

[27] M.MD. is the mother of a child who was the subject of child welfare investigation in 2011 and 2012; the minor Plaintiff is her son. The investigation commenced prior to the child’s birth, and meconium and hair follicle testing were done at the Motherisk Lab. The child was apprehended from the mother in June 2011 and was placed in the custody of the biological father, with the mother having supervised access. The child protection file was closed by the CAS in January 2012.

[28] The Plaintiffs allege the CAS was negligent in relying on the testing done at the Motherisk Lab as part of the child protection investigations. Damages are sought from the CAS for negligence, bad faith, and abuse of process and power. Damages are sought for breach of s. 7 Charter rights. It is alleged the Plaintiffs lost access to the older son for a long period of time as well as the child who was apprehended shortly after his birth. The CAS seeks to strike the claims of the parents only, M.MD. and D.W., and not those asserted by the child, B.W.

[29] It is alleged HMQ was negligent in failing to monitor how the CAS was operating, by failing to advise the CAS not to use the Motherisk test results as they were unreliable and further, that HMQ “turned a blind eye” to evidence about the lack of reliability of the Motherisk test results. It is alleged there was a duty on HMQ to ensure that proper forensic procedures were being followed at Motherisk and to ensure that the testing that was done was reliable and accurate. HMQ seeks to strike the claims in their entirety.

Background in the TH. Action

[30] J.TH. is the father of two children. The CAS conducted an investigation in 2009 and 2010 following a complaint that the children were being exposed to cannabis grown and used by J.TH. During the child welfare investigations, hair follicle testing was done on the children and results were positive. Neither of the children was taken from J.TH.’s care and the file was closed in 2010.

[31] J.TH. alleges he attempted to raise his concerns about the reliability of the Motherisk testing with numerous entities, including the Commission, to no avail. He asserts the CAS was negligent in relying on the Motherisk testing and seeks damages based in negligence, negligent investigation, intentional infliction of mental distress, bad faith, abuse of process and power and breach of s. 7 Charter rights. The CAS seeks to strike the claim of J.TH., not those asserted by the children.

[32] J.TH. alleges he brought information about the testing to the attention of HMQ and that Ontario failed to make any inquiries in response. HMQ permitted the CAS to continue to use the Motherisk test results. It is pleaded there was a duty on HMQ to make inquiries and satisfy itself that proper procedures were being followed and the tests results were accurate and reliable. HMQ seeks to dismiss the claims of the Plaintiffs against it entirely.

Positions of the Parties

HMQ

[33] HMQ states that the claims pleaded fail to disclose a reasonable cause of action and must be struck. HMQ notes that Ontario had no involvement in the CAS proceedings. The fact that the government regulates an entity does not give rise to a duty of care owed to the clients of the organization. Specifically, the fact that there is a duty owed to the public generally does not create a private law duty of care; there is no relationship of proximity between Ontario and the Plaintiffs.

[34] The various Plaintiffs allege Ontario failed to supervise the CAS and was therefore negligent. The jurisprudence is clear that HMQ owes no duty of care to the parents in respect of the conduct of the CAS, the HSC, or the Motherisk Lab. HMQ is not involved in the daily activities of these entities. The Plaintiffs cannot succeed on cases framed in negligence and they must be struck.

[35] On the alleged breach of s. 7 of the Charter, the Plaintiffs’ claims are untenable because any breaches of s. 7 committed by other Defendants do not carry through to HMQ. The Plaintiffs have made bald assertions of bad faith but this cannot be sustained.

[36] HMQ submits that several actions are abuses of process because they are, in reality, collateral attacks on existing court orders in family law or child welfare proceedings. The Plaintiffs chose not to appeal these orders and cannot re-litigate those issues in these claims.

CAS

[37] The CAS is created by statute, the Child and Family Services Act, R.S.O. 1990, c. D. 11 (“CFSA”). The CAS submits that the paramount purpose of child protection legislation is to promote the best interests, protection and well-being of the child. This has been affirmed in countless decisions, including in the Supreme Court of Canada (“SCC”). Because there is a statutory duty to the child, the CAS cannot also owe a duty to the parents of children to ensure that no harm is caused from the investigation. It is plain and obvious that the claims against the CAS cannot be maintained on the basis of a suggested duty of care owed to the parents of children under the care of the CAS. That is contrary to the law and the claims must be struck without leave to amend.

[38] With respect to the alleged breaches of the Charter rights, the CAS submits that there were orders made for the taking of the hair samples sent to the Motherisk Lab. The law is clear that such an order is not a breach of s. 7 Charter rights as the orders were made in accordance with the principles of fundamental justice.

[39] It is submitted that the pleadings against the CAS are in reality collateral attacks on previous court orders. The presiding justice in the underlying child welfare proceedings was the gatekeeper of the evidence and the Motherisk test results were allowed into evidence; the CAS played no role in that.

[40] The CFSA provides statutory protection to employees of a CAS from any alleged acts or omissions committed in the good faith execution of their duties as employees of the CAS. It is only claims alleged in intentional wrongdoing or malice that could attract personal liability. In this case, there are no such allegations and it is clear that the claims against Brenner, Buchnea, and Woodstock cannot succeed.

[41] Finally, it is submitted that the claims for intentional infliction of mental distress, misfeasance in public office, and breach of fiduciary duty are simply broad-brush claims without any particulars and must be struck as they disclose no reasonable cause of action against the CAS Defendants.

Plaintiffs

[42] Ms. Kirkpatrick submits that the pleadings are to read generously and it is not plain and obvious that the claims cannot succeed. At the heart of counsel’s argument is the submission that the law on duty of care owed is not settled. Ms. Kirkpatrick and Ms. Hensel do not agree that Syl Apps Secure Treatment Centre v. B.D., [2007] 3 S.C.R. 83 (“Syl Apps”) settled the law on this issue; there have been other decisions which have stated that there may be a duty of care owed to parents of children under investigation and each case is factually distinct. Thus, an evidentiary record is necessary for the proper disposition of these claims and the actions against HMQ and the CAS ought not to be dismissed at a Rule 21 motion.

[43] The Plaintiffs submit that the law does not provide immunity to HMQ and the CAS regardless of conduct. The case law is not clear that there is no duty of care by HMQ and/or the CAS to the parents; there are many things Ontario could have done and failed to do that resulted in reliance being placed on inaccurate tests, which had devastating consequences to the Plaintiffs. Syl Apps cannot be interpreted as precluding a finding of a duty of care in these circumstances.

[44] Bad faith is pleaded on the basis that the CAS failed to consider the evidence that had emerged surrounding the unreliability and inaccuracy of the testing from Motherisk. If bad faith conduct is established, there may be a finding of negligence. Numerous claims are made against HMQ on things they ought to have done earlier to ensure the testing was properly done and also in the face of evidence about unreliability of the tests.

[45] It is submitted that the analysis in Syl Apps does not preclude a finding of a duty of care in these cases; the law is emerging and the impact of conduct of the government and its agencies must be considered in the proper context. The court needs the benefit of expert evidence and the cases ought not to be dismissed at this early stage. That would result in unfairness.

[46] Indigenous litigants such as J.B. are more likely to have contact with child welfare agencies and are predictably impacted by the acts and omissions of the government and its agencies. The claims must be pleaded and ought not to be dismissed at this early stage. A full evidentiary record is necessary to have a contextualized analysis of these cases and the harm that resulted to J.B. as a result of the actions of the moving defendants. If there is a defect in the current pleadings, amendments should be permitted. This is the only venue through which J.B. and the others can seek damages, which must be recognized when considering these motions.

Analysis

[47] The law is clear that on Rule 21.01(b) motions, a claim will be struck only if it is plain and obvious that the pleading discloses no reasonable cause of action or in other words, even assuming the facts pleaded are true, the claim is hopeless: McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429. The court has made it clear the rule is intended to get rid of actions at an early stage that have no chance of success. In considering a Rule 21.01(b) motion, the pleading must be read in a generous fashion, making allowances for deficiencies in the pleading. If a claim is novel or is one that has not been recognized by the courts, it should not be struck simply for those reasons. The test on a Rule 21.01 motion is different than that for a summary judgment motion and a different analysis must be undertaken by the court.

(a) Is there a duty of care owed?

[48] In order for the claims against HMQ and the CAS in negligence to succeed, the Plaintiffs must establish these Defendants owed them a duty of care; this is a question of law. In my view, it is appropriate for the Court to deal with this issue by way of a Rule 21 motion. There are many cases where courts have ruled on negligence actions against public bodies by way of a Rule 21 motion: Wellington v. Ontario, 2011 ONCA 274, 105 O.R. (3d) 81 (“Wellington”).

[49] On the facts of these cases, they are amenable to motions pursuant to Rule 21 at this juncture. The threshold is high: there must be no chance of success, which is why this rule permits dismissal at an early stage without any evidence being considered.

(i) Re: HMQ

[50] All of the actions plead HMQ owed the Plaintiffs a duty of care to ensure that the CAS was following a proper procedure in their implementation of child welfare policy and that the evidence they gathered and put before the court was reliable. It is not suggested that HMQ had direct involvement in the investigations or proceedings; rather, it is alleged that HMQ had a duty to oversee the CAS and the HSC and to ensure that the Motherisk Lab was using reliable methods of testing and was operating properly. It is alleged HMQ ought to have prevented the use of the Motherisk hair tests, which were later determined to be unreliable. The Plaintiffs allege HMQ was negligent in their supervisory role of the CAS, the HSC, and the Motherisk Commission.

[51] Because it is not alleged there were any direct interactions between the Plaintiffs and any employees of HMQ with respect to the Motherisk testing, any duty of care must arise from statute, specifically the CFSA and/or the Public Hospitals Act, R.S.O. 1990, c. P.40 (“PHA”).

[52] There is nothing in the statute that supports the view that HMQ owes a private duty of care to specific individuals in this context. HMQ’s duties pursuant to the CFSA are set out and can be described as general duties to the public at large. However, that does not mean there is a duty of care to specific people.

[53] In determining whether a duty of care exists by HMQ, the facts as pleaded do not set out a relationship that the courts have previously recognized as giving rise to a duty of care; no cases were provided to me that supported such a contention. In Taylor v. Canada (Attorney General), 2012 ONCA 479, 111 O.R. (3d) 161, the Court of Appeal noted, at para. 73, “if courts have previously determined that the same or an analogous relationship does not create a prima facie duty of care, the court will, generally speaking, not repeat the analysis, but will find no duty of care based on the prior authority”.

[54] I agree with the submission of counsel for HMQ that no Anns analysis [1] is required pursuant to Knight v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45 (“Imperial Tobacco”) because the courts have determined that the relationship does not create a prima facie duty of care to family members and thus the analysis need not be repeated.

[55] There is no private law duty of care owed to the parents by HMQ based on the claims as articulated in the pleadings. These claims must be struck as they fail to disclose a cause of action.

[56] Turning to the issue of whether HMQ could owe a duty of care to the minor Plaintiffs (the children who were the subject matter of CAS investigations and are now Plaintiffs in some of these cases), counsel were unable to direct me to any cases dealing with the issue of duty of care owed to these children. Reading the nature of the allegations in the various Statements of Claim does not bring these Plaintiffs within a relationship with Ontario that has been recognized as giving rise to a private law duty of care by HMQ. Consequently, an Anns analysis must be undertaken.

[57] In Imperial Tobacco, the court set out the approach to be undertaken to determine if a duty of care exists: is there a relationship based on the pleadings that has been recognized as giving rise to a private duty of care? If not, a two part test must be undertaken according to Anns. First, when examining the relationship between the two parties, is there a relationship of proximity in which a failure to take reasonable care might foreseeably cause loss or harm to a party? If so, then a prima facie duty of care arises. Next, are there policy reasons why the prima facie duty of care should not be recognized?

[58] For a duty of care to be owed to the children, there must be a relationship of proximity established. The CFSA makes it clear that the role of HMQ in child protection matters is a general role with broad duties to the public. The Court of Appeal addressed this issue in Wellington and stated, at para. 44:

There is now a well-established line of cases standing for the general proposition that public authorities, charged with making decisions in the general public interest, ought to be free to make those decisions without being subjected to a private law duty of care to specific members of the general public. Discretionary public duties … do “not give rise to a private law duty sufficient to ground an action in negligence”.

[59] HMQ is not and cannot be involved on a day to day basis with the CAS dealing with child protection matters. In much the same way that the SCC found no private duty of care by Ontario concerning the operation of a police force in Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263 (“Odhavji Estate”), HMQ cannot be found to owe a private law duty of care to children the CAS is investigating because it is not directly involved in these investigations. There is a supervisory relationship and a general obligation to monitor the CAS, but as noted in Odhavji Estate, at para. 70, “[t]he lack of any direct involvement in the day to day conduct of members of the force substantially weakens the nexus between the Province and the plaintiffs.” In the same way, HMQ cannot have a private law duty of care to the infant Plaintiffs in these cases; HMQ is “simply too far removed from the day to day conduct of members … to be under a private law obligation”.

[60] There is no private law duty of care owed to the children who were the subjects of investigation by HMQ. It does not arise from the statute and I do not find a relationship of proximity exists between Ontario and the children who are the subjects of child welfare investigations or proceedings that is sufficient to give rise to a private law duty of care. These claims must be struck without leave to amend as they fail to disclose a reasonable cause of action and cannot succeed.

(ii) Re: CAS and its employees

[61] With respect to the claims against the CAS and their employees, it is alleged the CAS was negligent and acted in bad faith by relying on the Motherisk testing results in their investigations. It is further alleged the CAS breached the duty of care owed to the Plaintiffs by failing to ensure that reliable and accurate information was given to the court in child welfare proceedings.

[62] The leading case and the highest authority on the issue of duty of care in child protection matters is the SCC decision in Syl Apps. That case involved a claim by parents and other relatives of a child who was apprehended by the defendant CAS, placed in a treatment centre and subsequently made a ward of the Crown. The claim made allegations of negligence against the CAS and treatment providers as well as against the government. Various defendants brought a Rule 21 motion to strike. The central issue before the SCC was whether the treatment centre and the employee owed the Plaintiffs a common law duty of care giving rise to an action for damages in negligence. The SCC granted the Rule 21 motion and struck the claim without leave to amend.

[63] The SCC found there was no duty of care owed by the treatment providers to the family of the child who was found to be in need of protection. In coming to this conclusion, the SCC noted the governing legislation, the CFSA, did not give rise to a relationship of proximity; the SCC observed (at para. 48) that the paramount purpose of the legislation was to “promote the best interests, protection and well-being of children.”

[64] The SCC stated (at para. 42) that if a duty of care to the family members was imposed on the treatment providers and social workers, this would create 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.” The SCC commented (at para. 43) that “[w]hen a child is placed in the care of the Children’s Aid Society…, the Act gives the Children’s Aid Society … the rights and responsibilities of a parent for the purpose of the child’s care, custody and control”. This creates an inherently adversarial relationship between parents and the state. If there was a duty of care imposed, Abella J. stated it would place the treatment providers, the CAS workers and the government, in an untenable position, rendering them unable to act in the best interests of the children, which is clearly their mandate.

[65] The reasoning employed in Syl Apps is directly applicable to the instant cases. In all of these claims, the various CAS were involved in the investigation of allegations of substance abuse by mothers. In the course of these investigations, the CAS workers directed that hair sample testing be done to determine whether the children were safe with their parents. In exercising its statutory mandate pursuant to the CFSA, the CAS was bound to act in the best interests of the children. The CAS has a statutory duty arising from the CFSA to “promote the best interests, protection and well-being of children”.

[66] In all of the cases, the CAS were undertaking their statutory mandate to look after the best interests of the children they were investigating. To impose a duty of care on the CAS to the parents in these circumstances would be exactly what the SCC addressed in Syl Apps: it would create a serious conflict of interest for the workers which would be at odds with their statutory duty to ensure the best interests of the children they are investigating.

[67] Imposing such a duty would place the CAS in an untenable position, in a direct conflict of interest with their duty to the children they are bound to protect. The CAS is tasked with the duty of ensuring children are safe and in carrying out this mandate, the CAS must be free to conduct their investigations freely. As the court noted in Syl Apps, there is an inherently adversarial relationship between parents and the CAS during child protection investigations. That can be clearly seen from a review of the pleadings in the instant cases.

[68] Counsel for the Plaintiffs argue that the state of the law is not settled in Ontario on whether a duty of care exists in these circumstances. Plaintiffs’ counsel before me rely heavily on two decisions: D.T. v. Highland Shores Children’s Aid, 2016 ONSC 1432 (“D.T.”) and Durakovic v. Guzman, 2013 ONSC 958 (“A.D.”).

[69] In D.T., the father sued the CAS after child protection litigation was dismissed after a trial. The father alleged negligence and bad faith conduct on the part of the CAS. In refusing to strike the claims against the CAS on a Rule 21 motion, the motions judge was of the view on the facts of that case that it ought to proceed to trial where the issue of whether the plaintiff could establish bad faith and overcome statutory immunity and the court could decide if a duty of care was owed to the father.

[70] The facts of D.T. are very different than the instant cases; the claim arose following a child protection trial in which the plaintiffs alleged the CAS workers provided misleading affidavits at the trial. The trial judge made negative comments about the quality of the investigation conducted by the CAS employees and who “filed with the court affidavits that contained numerous false and misleading statements respecting the Plaintiff and his children.”

[71] In dismissing the Rule 21 motion, the judge seemingly distinguished Syl Apps because it involved allegations of negligence by a treatment provider and not the CAS and because Syl Apps did not concern allegations of negligence during an investigation of child protection concerns. In so doing the motions judge determined that the Syl Apps decision could not be construed as “determinative of all future negligence/bad faith claims involving society workers.”

[72] A.D. was a summary judgment motion on a case where the Plaintiff alleged slander and negligence against the CAS in carrying out its duties. The motions judge was of the view that the Syl Apps decision dealt with alleged negligence of the CAS after apprehension and was not applicable to negligence during an investigation. The comments of the motions judge in A.D. were made in the context of a motion for summary judgment where the test, the considerations, and the law is very different from that for a motion to strike pursuant to Rule 21.01. Indeed, the motions judge stated (at para. 95), “when the CAS intervenes in a child protection matter it owes a duty of care to, inter alia, a parent. At the very least, this raises a genuine issue requiring a trial.” In addition, on the issue of statutory immunity, the judge in A.D. noted that if bad faith conduct were made out at trial, there would be no immunity to the CAS. The motions judge determined there was a genuine issue for trial, noting (at para. 90) that the Syl Apps case “does not provide blanket immunity for CAS-type organizations in all contexts in which they touch people’s lives.”

[73] I do not read Syl Apps in the restrictive fashion that is suggested in D.T. or in A.D.. Furthermore, I am not deciding if there is a genuine issue in these cases requiring a trial. Clearly, each case must be considered on its own facts.

[74] In I. v. DCAS, 2015 ONSC 1721, foster parents brought claims in negligence and bad faith against the CAS and its employees who had conducted an investigation in a child protection matter which resulted in the removal of children from the foster parents. In granting a Rule 21.01(b) motion, Lack J. reviewed the law as it existed in 2015 and struck the claims without leave to amend. Lack J. noted, at para. 22:

The decision in A.D. [Durakovic] is an anomaly. It is incongruous with the underlying ratio in Apps and it is contrary to the weight of authority in the Superior Court in this province, which include two decisions upheld by the Ontario Court of Appeal, and the rulings of the Court of Appeal are binding. The law is settled that a child protection agency does not owe a duty of care to third parties in exercising its child protection mandate under the Child and Family Services Act and that includes in conducting investigations of child protection concerns.

[75] I prefer and agree with the reasoning of Lack J. I do not agree with the submissions of counsel for the Plaintiffs that there exists some uncertainty about the state of the law on whether a duty of care is owed by the CAS to parents in these circumstances. There are numerous decisions of other Superior Court judges, recent decisions, on very similar facts, that concluded that a child protection agency does not owe a duty of care to third parties when it is acting pursuant to its statutory mandate and conducting an investigation of concerns surrounding a child and consequently, struck the pleading.

[76] In Plummer v. Children’s Aid Society of Hamilton, 2011 ONSC 4231, aff’d 2012 ONCA 600, the Plaintiffs sued the CAS in negligence. The claim was struck on the basis that the defendant owed no duty of care to the parents, following the Syl Apps reasoning. In his analysis, Parayeski J. noted that the law was clear “that the CAS and its employees owe no duty of care to the Plaintiff … The duty is owed to the children, not the parents. This is the ratio of the Supreme Court of Canada decision in [Syl Apps]”. This decision was confirmed in the Court of Appeal where Rosenberg J.A. stated that while the Plaintiff claimed the CAS and its employees owed him a duty of care, “[t]here is no such duty of care”.

[77] In D.S.B. v. Kenora Rainy River Child and Family Services, 2014 ONSC 5621, parents claimed damages in negligence arising from the investigation and subsequent apprehension of their child by the CAS. In dismissing the claim as disclosing no cause of action, Fitzgerald J. specifically followed Syl Apps and found a child protection agency owes no duty of care to a parent of a child in need of protection.

[78] In Pereira (Litigation Guardian of) v. Ontario, 2015 ONSC 2249, Dunphy J. rejected an argument that the reasoning in Syl Apps should be restricted to cases where the child is already in custody, as opposed to cases in the investigation stage. He noted, at para. 9:

There is no fundamental or principled difference between the role of a CAS such as the defendant in this case undertaking an investigation of possible abuse and its role or that of other agencies involved in providing care of shelter once a decision to apprehend has been made. In both cases, the interposition of a parallel duty to parents that may conflict with the overriding duty to the child poses the same risk of conflict and must be rejected for the same reasons.

[79] I agree with the comments of Dunphy J., which follows the reasoning of Syl Apps.

[80] Finally, in the most recent pronouncement on the law, in S.H., the Plaintiff sued the CAS and other defendants, alleging the CAS conducted a negligent investigation and the Plaintiff alleged he was the subject of malicious prosecution by the CAS. As in the instant case, the Plaintiff alleged violations of the Charter. In granting the CAS motion for an order striking the claim without leave to amend pursuant to Rule 21.01(b), Broad J. reviewed the case law on the duty of care issue and followed the reasoning from Syl Apps. He noted this specific issue has been addressed numerous times and stated, at para. 41, “[i]n my view, on the basis of the decisions in I. v. DCAS, Pereira, and B.K. 2, the attempt to distinguish Apps on the basis that it does not apply to pre-apprehension investigations by child protection agencies has been or should be, put to rest in Ontario.”

[81] Counsel for the Plaintiffs in their supplementary submissions note that Broad J. did not refer in his reasons to the Court of Appeal decision in H.A.G. v. Family and Children’s Services Niagara, 2017 ONCA 861 (“H.A.G.”). The fact that S.H. made no reference to other cases which counsel for the Plaintiffs prefers and relies on is of no moment; a judge is not required to make reference to each case that is argued or to cases which counsel feel are relevant to the issues.

[82] Ms. Kirkpatrick submits that S.H. is not binding on me in my decision in this case, which of course is true. However, I do not agree that the D.T. and A.D. cases are more “closely aligned” to the issues in the instant case and their reasoning ought to be followed. In my view, Syl Apps is more “closely aligned” with the facts of these cases and the issue that the SCC had to decide is directly relevant to my determination of the issue before me on the alleged duty of care.

[83] Importantly and more recently, in H.A.G., Hood J. granted a Rule 21.01(b) motion and struck the claim of the Plaintiff parent against the CAS on the basis that the claim could not succeed as there was no duty of care owed. In dismissing the appeal from the order of the motions judge, the Court of Appeal stated, at para. 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.

[84] While counsel for the Plaintiffs submits that H.A.G. does not “settle” the law, I do not agree. In my view, given the allegations in the instant cases, the law on the duty of care owed by HMQ and by the CAS is settled. Plaintiffs’ counsel attempts to limit the applicability of the Court of Appeal decision in H.A.G., arguing that the court came to its conclusion based on “the circumstances of this case”. In my view, these cases are all fact specific and H.A.G. was factually very similar to the cases before me: suits brought by parents against the CAS based in negligence. The Court of Appeal clearly agreed there was no duty of care to the parents, following the reasoning of Syl Apps. The same reasoning applies to the instant cases and consequently, there can be no duty of care owed by the moving defendants to the parent Plaintiffs.

[85] It is also true that each case turns on its particular set of facts. While counsel for the Plaintiffs urge me to dismiss the motion on the basis that a complete evidentiary record is needed in order to determine whether the Plaintiffs have provable cases against the CAS and HMQ, I reject this approach. Rule 21 is designed to eliminate cases at an early stage which have no hope of success based on the pleadings. These cases fall into that category and there is no reason to defer this decision to a later date. Rule 21 cases do not require evidence.

[86] The law is clear and I find that there is no duty of care owed by the moving defendants to the parents of children who are under investigation by the CAS. These claims cannot succeed and must be struck without leave to amend.

(b) Other Claims

[87] The other allegations against HMQ are essentially rooted in its supervisory role since it was not involved in the testing that was done at the Motherisk Lab. The claims as pleaded against Ontario are broadly described as a failure of the government to have determined that the Motherisk tests was unreliable, that the testing should not have been used in child welfare proceedings and that Ontario ought to have determined this and prevented it.

[88] Under the PHA, HMQ does not owe a private law duty of care arising from the operation of hospitals: Mitchell Estate v. Ontario (2004), 71 O.R. (3d) 571, 242 D.L.R. (4th) 560 (Div. Ct.). Ontario has a duty to the citizens of Ontario as a whole but not to a particular individual.

[89] Similarly, under the Laboratory and Specimen Collection Centre Licensing Act (“LSCCLA”), Ontario has a duty to the public at large concerning the establishment and operation of laboratories. The LSCCLA governs clinical laboratories. The Motherisk Lab was forensic, but even so, the power to regulate entities such as laboratories is not synonymous with a duty of care to individuals. There is no relationship of proximity that would ground a duty of care to individuals such as the Plaintiffs in these cases. In any event, I agree with the submissions of counsel for HMQ that the LSCCLA provides immunity to HMQ for any act done in good faith in the execution of his or her duty. That immunity includes protection from actions grounded in negligence. Thus, the Plaintiffs’ claims rooted in negligent supervision of the Motherisk Lab cannot be sustained at law and must be struck.

[90] Although it was not argued before me, there are allegations in the claims that HMQ owed a duty of care to the Plaintiffs as a result of the establishment of the Motherisk Commission. It is pleaded, “[t]he Crown had a duty to the Plaintiffs to ensure, through its consultations, that the processes and policies developed by the Motherisk Commission for review of the Plaintiffs’ case were thorough, unbiased, and adequate and in compliance with the rules of procedural fairness”.

[91] These claims cannot be maintained. The decision to strike a Commission is discretionary and there are certain matters Ontario is required to do if a Commission is established. However, HMQ is not statutorily required to approve or even agree with the policies and procedures developed by the Motherisk Commission. There is no private law duty of care to individuals which was established when the Motherisk Commission started up. These claims must be struck.

[92] The Plaintiffs claim broadly in negligence against HMQ that it ought to have ensured that the testing that was being done at the Motherisk Lab was done properly and was reliable. It is pleaded:

The Crown breached its duties to the Plaintiffs by failing to properly and effectively monitor the reliability of Motherisk Lab, and the use of its hair follicle testing by children’s aid societies in child protection investigations and proceedings, in order to ensure that the hair strand tests could be relied upon in the implementation of child welfare policy case planning, child protection investigations and/or proceedings before Ontario courts, including in the Plaintiffs’ case.

There are numerous other allegations including a failure to make inquiries and satisfy itself that proper forensic procedures were being followed, a failure to ensure that the Motherisk employees were competent, and a failure to ensure that CAS were not using or relying on hair testing that was inadequate and unreliable.

[93] These allegations all sound in negligence. The Crown is immune from claims based in direct liability in tort: Canada (Attorney General) v. Thouin, [2017] 2 S.C.R. 184. While HMQ could be vicariously liable for actions of its employees, the legislation is clear that a claim against the Crown in tort can only be based on an act or omission of a servant or agent of the Crown; otherwise, the Crown is immune from such a claim.

[94] The claims at hand do not make allegations against a specific individual employed by HMQ; the allegations are against the Crown directly, for which immunity is granted pursuant to the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 which provides that HMQ is immune from claims of direct liability in tort. In the instant cases, there is no allegation of actions of servants of HMQ for which there could arguably be vicarious liability. These claims must be struck.

[95] There are a number of other allegations made against HMQ without specificity and without any facts to support the claims. For example, “misfeasance in public office, abuse of the process of law and breach of fiduciary duties” are all pleaded. No facts are pleaded to establish these torts; additionally, it is pleaded that HMQ is vicariously liable for “its own actions” and those of their employees, yet no facts are specified to form the basis for these claims. Ontario is not vicariously liable for the actions of CAS or of HSC; they are independent entities and HMQ does not control them.

[96] In a number of the actions (R., M., T., and B.) there are existing court orders from custody and access proceedings:

• In the R. Action, following a trial, the judge ordered that the Plaintiff’s children be made Crown wards for the purposes of adoption. That order was not appealed but in the claim, C.R. requests damages for the loss of her relationship with her children. She also seeks a declaration that the order constitutes a miscarriage of justice.
• In the M. Action, there was an order which limited the Plaintiff’s access to her daughter; this order was not appealed. Y.M. also claims the order represents a miscarriage of justice and she requests damages from the broken relationship with her daughter.
• In the T. and B. Actions, their daughters were made a Crown ward. The Plaintiffs appealed the order but abandoned the appeal. In their claims here, both allege the Order was incorrect and based on a flawed process.

[97] By arguing that these orders are incorrect and were wrongly decided, the moving Defendants argue the Plaintiffs are making collateral attacks on these orders which amount to an abuse of process.

[98] The law is clear that it is impermissible for a person to attempt to undermine an existing court order. In Garland v Consumers’ Gas Co., [2004] 1 S.C.R. 629 (“Garland”), the court noted, at paras. 71-72:

The doctrine of collateral attack prevents a party from undermining previous orders issued by a court or administrative tribunal (see Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77; Donald J. Lange, The Doctrine of Res Judicata in Canada (Markham, Ont.: Butterworths, 2000), at pp. 369‑370). Generally, it is invoked where the party is attempting to challenge the validity of a binding order in the wrong forum, in the sense that the validity of the order comes into question in separate proceedings when that party has not used the direct attack procedures that were open to it (i.e., appeal or judicial review) … the collateral attack cases all involve a party, bound by an order, seeking to avoid the effect of that order by challenging its validity in the wrong forum.

[99] The SCC went on to note that a collateral attack on an existing court order ought to be struck.

[100] All of these claims, in my view, constitute collateral attacks on existing court orders, as described in Garland, and must be struck. The Plaintiffs claim damages in the instant cases at least in part based on the existing court orders, which they assert were wrongly decided based on evidence that was unreliable. It is an abuse of process to claim that existing court orders made in another proceeding are wrong and that they give rise to damages. Similarly, it is an abuse of process to bring an action which alleges that a binding court order is a “miscarriage of justice”, requesting this court make findings and damage awards arising from judicial orders made in other actions. These claims constitute collateral attacks and as such, the Plaintiffs’ claims emanating from these allegations are an abuse of process and must be struck.

[101] I agree that s. 15(6) does not provide statutory immunity to all CAS and their workers, regardless of the nature of their conduct. However, on a Rule 21.01 motion, the court accepts the pleadings as truthful and based on that analysis, must determine whether there is a reasonable cause of action. In order to defeat a Rule 21 motion, the Plaintiff cannot simply include words such as “bad faith” in a Statement of Claim. There must be a factual matrix to support the claim.

[102] In the instant cases, the Plaintiffs cannot frame their claims in negligence arising from a duty of care which does not exist, then include a bald allegation of bad faith in order to defeat a Rule 21.01 motion to strike. The court must scrutinize the true nature of the claim as part of the analysis.

[103] In the instant cases, the core of the claims against the CAS is that it failed to conduct a proper investigation and part of that, it is alleged, was in using and relying on the hair strand testing and that it “acted with “tunnel vision”. Those claims are rooted in negligence; simply including a bald allegation of bad faith does not change the character of the claim. Bad faith is different than simply making an error or falling below an expected standard.

[104] The Plaintiffs cannot succeed by pleading improper conduct, or bad faith, or other types of negligence. The fundamental flaw in the argument of the Plaintiffs is that there is no duty of care owed to the families of children in the investigation process. As Raikes J. stated in Kivell v. Chatham-Kent Children’s Services, 2010 ONSC 200 (“Kivell”), at paras. 97-98:

It is well-settled law that a Children’s Aid Society and its employees owe no duty of care to parents or other adult family members in its investigation of child protection matters or in the proceedings which flow therefrom … This principle applies equally to claims where allegations of gross negligence, improper conduct and bad faith are also made.

[105] Claims of misfeasance in public office are pleaded without any details, as are claims of abuse of power. Misfeasance in public office is not synonymous with negligence. There must be conduct that is known to be harmful as an underpinning for this tort, which is not pled. While there are claims made in some of the actions against employees of the CAS, the legislation is clear that workers are immunized against claims arising from work done in good faith in the course of their job.

[106] Similarly, the pleadings claiming intentional infliction of mental distress contain no evidence of the type of conduct necessary to support this tort. There must be outrageous conduct designed to produce harm which could result in illness: Kivell. In these pleadings, it is alleged that CAS employees acted in bad faith but the underpinnings of a tort rooted in intentional infliction of mental distress are not contained in the Statements of Claim.

[107] It is not sufficient for a pleading to include words such as “intentional infliction of mental distress, abuse of power, or misfeasance in public office” without a basis for these separate torts. A claim in negligence is quite separate from these other torts and a plaintiff cannot rely on facts which are alleged to give rise to findings of negligence and rely on those facts for other torts, which are distinct from negligence. In my view that is what has occurred in these cases and the pleadings must be struck.

[108] In the R. Action, while several workers are named as Defendants, there are no allegations against them. In the W. Action, Marilyn Smart is sued and identified as a social worker in a women’s shelter. It is alleged she was “in possession of relevant and personal information” concerning the Plaintiff and further, that she acted in bad faith and made inappropriate use of the personal information but no further particulars are provided. The allegations do not assert that she used information obtained for improper purposes. On the basis of the existing pleadings, no claims against the individual CAS workers can be successful. If there are specific acts that could support a finding of personal liability, they must be set out. Additionally, the CFSA provides statutory immunity from liability for any alleged acts or omissions done in the good faith execution of their jobs as employees of the CAS. It is not acceptable to simply use the words “bad faith” or “malice” to bring the claims outside of the statutory immunity afforded to CAS workers. There must be facts pleaded to support such claims, which are absent here. These claims against the employees must fail and are struck without leave to amend.

(c) Charter Rights

[109] The Plaintiffs assert that HMQ permitted their section 7 Charter rights to be breached by allowing the CAS to obtain a bodily substance to be sent to the laboratory for testing, when the laboratory and tests were not reliable.

[110] This was not addressed in argument, but the various legal entities, of which the CAS is one, have an independent legal identity. If such an entity breaches a Charter right, it is potentially responsible for damages flowing from that breach. However, HMQ is not liable for the actions of these various entities; it could be liable its own actions and for the actions of its employees who caused such a breach: Vancouver (City) v. Ward, [2010] 2 S.C.R. 28.

[111] Simply put, HMQ is not responsible for all Charter breaches, regardless of who caused the breach. Different levels of government are responsible for their own Charter breaches, if such breaches occurred.

[112] I agree with the submission of counsel for HMQ that if another Defendant caused a breach of the Plaintiffs’ Charter rights, their claim is against the specific entity and not HMQ. These claims must be struck as they fail to disclose a reasonable cause of action.

[113] It is not clear to me on what basis the Plaintiffs allege Charter breaches because the allegations are simply broad-brush, sweeping statements without any particularity. For example, the R. Action pleads, at para. 113:

The Plaintiffs state that these matters, beginning in 2008 and continuing to the present, have engaged their respective fundamental rights to life, liberty and security of the person. The Charter breaches by the CAS and the Crown cannot be justified in a free and democratic society.

Seemingly, this pleading relates to the establishment of the Motherisk Commission, although it is not clear. No facts are set out to support this tort.

[114] The Motherisk Commission was set up to deal with individuals who had undergone testing at the Motherisk Lab in the past. If the basis for this claim is that HMQ did not correctly establish the Commission with a mandate and policies and procedures to review various child protection cases, that claim is misconceived. Commissions do not have the same procedure as courts, nor are the rules of evidence the same. To the contrary, Commissions are at liberty to determine their own procedures, because they know their objectives and their mandate and are in the best position to determine the most expeditious and effective ways to satisfy them: Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in Canada, Krever Commission), [1997] 3 S.C.R. 440, 151 D.L.R. (4th) 1.

[115] It is alleged there were s. 7 Charter breaches arising from the demands for a hair sample. This issue was considered in Children’s Aid Society of Halton Region v. Z.I. and R.M.D., 2010 ONCJ 617. In dismissing the argument of the parents that requiring they submit hair samples for testing, the court noted s. 51(3.2) of the CFSA provided the court with authority to make such an order. However, the court went on to state, at para. 5:

I therefore find that, although the order potentially violates both of the respondents’ rights under sections 7 and 8 of the Charter, such order based on the facts of the case is made in accordance with the principles of fundamental justice. I find that this order falls within the reasonable limits prescribed by law as justified in a free and democratic society, where the rights of the child to be safe and secure from harm at the hands of those who are charged with the responsibility of protecting the child as a vulnerable being must be balanced against the degree of the intrusion upon the Charter rights of those who are charged with the responsibility of protecting the said child.

[116] Further, in some of the instant cases, the samples were obtained pursuant to a court order and thus, the argument based on an infringement of s. 7 Charter right must fail. To accede to it would amount to granting an attack on the underlying court order. If it was thought there was a breach of a s. 7 Charter right by the requirement to provide a hair sample, that argument should have been raised at the time the order was contemplated or on appeal.

[117] In Quinn v. British Columbia, 2018 BCCA 320 (“Quinn”), leave to SCC ref’d, 2019 CarswellBC 633, relied on by the Plaintiffs, the parents claimed breach of Charter rights arising from the removal of their children for several months pursuant to a CFCSA investigation. The province brought a motion to dismiss as disclosing no reasonable cause of action, which was dismissed by the motion judge. In granting the appeal, the appeal court noted, at para. 62, “the Respondents’ claim for Charter damages has no reasonable prospect of success and should not consume scarce judicial resources by going to trial.”

[118] In much the same vein, the allegations in the claims before me are really in substance allegations of negligence. They cannot be dressed up as Charter breaches, which “is effectively a cloaked constitutional challenge to the provisions of the CFCSA and the integrity of the administration of the child protection scheme”: Quinn, at para. 68.

[119] These paragraphs must be struck as disclosing no reasonable cause of action.

Motion by Klein in the R. Action

[120] In the Fresh as Amended Statement of claim, Klein is identified as a “drug testing consultant who had formerly worked at the Motherisk Lab and held herself out to be qualified to provide interpretation and opinion in analytical toxicology and hair strand testing.” Klein was retained by counsel for C.R. as an expert to assist in interpreting the Motherisk test results, and to subsequently give expert evidence in the child protection proceedings.

[121] It is pleaded that C.R.’s children were made Crown wards by way of an order from McSorley J. of the Superior Court of Justice on April 14, 2009 and C.R. has not had any contact with them since that time. It is further alleged that the hair strand and other drug testing done by the Motherisk Lab was inadequate, unreliable and negligently performed; the Plaintiffs assert that the tests showed C.R. was a cocaine user, which she denies. It is alleged that as a result of positive drug tests from the Motherisk Lab, the Plaintiff lost custody of her children.

[122] With respect to the claim against Klein, the Plaintiffs assert that Klein is liable to them in negligence. The claim states, at para. 70, that Klein, along with the Defendant Gideon Koren, failed to disclose the fact that “the Motherisk Lab and Julia Klein were discredited in 1991 in the case of The People of the State of Colorado v. Allen Thomas Jr., District Court of Adams County, Colorado 91CR190.”

[123] It is alleged that as an expert retained by counsel for the Plaintiff, Klein had a duty to the Plaintiffs to disclose that she and the Motherisk Lab were discredited in 1991 in the American case. Further, the Plaintiffs assert that Klein also had a duty not to provide interpretation and opinions that she was not qualified to render, and she offered an opinion knowing that it would be relied upon by the court without regard for, or in reckless disregard, for its truth.

[124] This is a Rule 21.01 motion to strike out the claim against Klein as disclosing no reasonable cause of action. No evidence is admissible on such a motion unless a judge makes an order or the parties consent. In the instant case the transcript of the evidence of Klein at the trial, her Curriculum Vitae, and the Reasons for Judgment of McSorley J. were included in the record on consent.

Positions of the Parties

[125] Mr. Clement argues that the doctrine of witness immunity precludes any finding of liability against Klein. In any event, causation cannot be made out because the judge in the CAS application made it clear that the outcome would have been the same regardless of the testimony of Klein—C.R.’s children would have been found to be in need of protection and would have been made Crown wards based on the totality of the evidence, quite apart from Klein’s expert opinion.

[126] Ms. Kirkpatrick submits that Klein failed to disclose the fact that her testimony had been rejected in an American case years earlier, and that this equates to a material misrepresentation. Had she disclosed what transpired in the American case, she would not have been qualified as an expert in the trial and her evidence about the Motherisk Lab results would not have been accepted. There was a duty on Klein to disclose, that duty was breached and this issue ought to be determined on a proper evidentiary record.

Analysis

[127] The claim against Klein is made in her capacity as an expert witness who testified at trial on behalf of C.R.. The fact that she testified in another trial in a different jurisdiction as an expert and her opinion was not accepted does not make her liable to C.R. in negligence. The moving party relies on the principle of witness immunity, while the Plaintiffs submit that the court could find a duty on Klein to disclose and Ms. Kirkpatrick argues that it is not clear that the claim has no chance of success.

[128] The Plaintiffs in both their written and oral submissions fail to address the issue which is at the forefront of the argument of Klein: that she is protected from being found liable in this claim because of witness immunity.

[129] The case law is clear that “[t]he absolute immunity of parties and witnesses from subsequent liability for their testimony in judicial proceedings developed in early English cases and is well established at common law. Any communications, even perjured testimony, made in the course of a judicial proceeding, cannot serve as the basis for a suit in tort”: Reynolds v. Smith, 2007 ONCA 166, 84 O.R. (3d) 738.

[130] The issue of witness immunity has been considered recently in Ontario in Sheehan v. Snell, 2016 ONSC 6340, 135 O.R. (3d) 147. As Matheson J. noted, at para. 45, “[t]he protection is absolute. Even allegations of bad faith are insufficient to remove the application of the immunity doctrine.” That case involved an expert psychologist who testified in family law proceedings and was then sued by the husband on the basis that he misrepresented his credentials. In dismissing the claim against the expert on a summary judgment motion, the comments of Matheson J. are applicable to the instant case. She stated, at paras. 47 and 50:

The undisputed facts before me show that Mr. Carter was retained to act as an expert witness in the family law proceedings between the now divorced Mr. and Mrs. Sheehan and more specifically, to provide a critique of Dr. Mills’ report. He had no other relationship with those parties. It is his conduct as an expert in the family law proceedings that forms the basis of the Plaintiff’s claim against him. … The Plaintiff has acknowledged that Mr. Carter’s role was to provide expert opinion evidence to the court. … He submits that Mr. Carter ought to have volunteered that his credentials did not extend to making a diagnosis rather than just addressing it when the issue was raised by Dr. Mills.

[131] Matheson J. dismissed the claim, finding there was no basis in law due to the immunity doctrine.

[132] In the instant case, the claims asserted by the Plaintiffs against Klein arise solely in her capacity as an expert retained in the underlying child protection litigation. At best, the Plaintiffs’ allegations are that Klein “did not disclose or actively suppressed the fact that the Motherisk Lab and Julia Klein were discredited in 1991 in the case of The People of the State of Colorado v. Allen Thomas Jr., District Court of Adams County, Colorado 91CR190.” The law is clear that her evidence as an expert in the underlying child protection proceedings is protected by the immunity doctrine and cannot form the basis of an action in negligence.

[133] The Plaintiffs rely on J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308, 1 B.C.L.R. (6th) 17. With respect, that case is of no assistance to the Plaintiffs in their argument as it involves an expert witness who the appeal court found misled the trial judge and perpetrated a fraud on the court. That is a very different fact situation than the instant case.

[134] The law surrounding witness immunity is clear. In Due v. Collings, 2018 ONSC 4003, the court applied the doctrine of witness immunity to an expert who was sued for failing to provide an expert report for use in a tort action. In striking the claim, C. Brown J. noted, at para. 17, that “there is a long recognized immunity for expert witnesses which has, more recently, been extended to the party’s own expert in the context of litigation.”

[135] Even if Klein did not have the benefit of expert witness immunity, the claim as articulated fails to disclose a proper claim in law. Accepting the allegations as true, as I am required to do on a Rule 21 motion, if Klein failed to advise C.R.’s counsel in the child welfare litigation that she had been the subject of negative judicial commentary in an American case 16 years earlier, that cannot form the basis for a claim against her in negligence.

[136] Lawyers select experts to testify at trial based on their expertise in a particular area. The expert is often subject to cross-examination by opposing counsel on their lack of qualifications to opine in a specific area. There is no duty on a proposed expert to advise counsel that his or her opinion was not accepted in another proceeding. The fact that one judge rejects an expert’s opinion or finds their methodology unreliable does not render the expert unable to testify in another proceeding and it certainly cannot form the basis for a claim in negligence against the expert. It is the obligation of counsel and ultimately the court in its gatekeeper capacity to determine if an expert ought to be permitted to offer opinion evidence to the court, and if so, whether it is reliable and ought to be accepted.

[137] In the case of Klein, her expertise was not challenged in the underlying action. Furthermore, McSorley J. did not rely exclusively on the evidence of Klein in coming to the decision that the children should not be returned to C.R.’s care. The court noted other factors such as C.R.’s emotional breakdown and abandonment of her children and her refusal to engage with the CAS workers, her abusive relationship with her partner, and her refusal to address her own issues. It is clear that McSorley J. did not rely on the testimony of Klein or the results of the Motherisk testing in determining that the children were in need of protection. The children had been placed in potential adoptive homes, they had not seen C.R. for a significant period of time and the judge noted C.R. was “a virtual stranger to them” and to place them with her would be “emotionally traumatic and not in their best interest.” Thus, even if C.R. could establish negligence at trial, there is no causal connection between the negligence and the damages, and therefore C.R.’s claim against Klein must fail.

[138] Klein had no involvement or relationship with any Plaintiff other than C.R., so there cannot be a duty of care on these pleadings. As I have noted, her involvement with C.R. is restricted to her role as a witness at the trial but she is afforded the witness immunity, so a claim against her cannot succeed. In any event, given the judge’s reasons for removing the children from C.R.’s care, it is clear that decision was not based on the evidence of Klein, so the Plaintiff cannot prove any damages are causally related to the actions of Klein.

[139] The claim against Klein is misconceived; it is fatally flawed and cannot be sustained. Therefore, the claim must be dismissed without leave to amend. In my view, this motion ought to have proceeded on a consent basis, given the clarity of the law on witness immunity and the duty of experts.

The B. Claim

[140] J.B. is the father of the child referred to in the T. Action. He sues the moving Defendants, HMQ, and Family and Children’s Services of the Waterloo Region (“FACS”), for damages for breach of fiduciary duty, negligence, as well as breach of s. 7 Charter rights. A declaration is sought that the Plaintiff’s inherent and treaty rights, as constitutionally enshrined by s. 35(1) of the Act, were violated.

[141] J.B. pleads that he is a Cree man without status pursuant to the Indian Act, R.S.C., 1985, c. I-5, and that his Indigenous identity was disregarded. He asserts that his rights adopted in the United Nations Declaration of the Rights of Indigenous Peoples were breached. He alleges that the Crown violated s. 37(4) of the CFSA and acted in a manner inconsistent with s. 35(1) of the Act by disregarding his and the child’s Indigenous identity. General, aggravated and punitive damages are claimed as well as special damages which are not particularized.

[142] C.T. alleges that she underwent Motherisk hair follicle testing and the FACS conducted an investigation. The child was apprehended. Following several positive tests, on motion by FACS, the presiding judge in December 2015 made the child a Crown ward without access to the Plaintiff for the purposes of adoption. The Plaintiff appealed, unsuccessfully, and sought leave to appeal to the SCC, which was abandoned or dismissed.

Positions of the Parties

[143] The position of J.B. and the arguments submitted in his case are the same on a number of issues as for the other Plaintiffs: negligence, duty of care owed, and breach of s. 7 Charter rights. J.B. submits that HMQ owed him a duty of care to ensure that the evidence obtained for child welfare investigations was reliable and appropriate. It is submitted that HMQ breached its fiduciary duties to the Plaintiff by failing to order that CAS cease working with Motherisk Lab and by failing to suspend HSC from operating the Motherisk Lab. It is asserted that HMQ breached its duty by failing to ensure the FACS investigation was done in a competent and unbiased manner and that the tests they relied on were accurate.

[144] Counsel submits that the FACS owed a duty of care to the Plaintiff to ensure that the evidence of drug use obtained during the investigation was reliable. It is pleaded that the FACS breached its duty of care to the Plaintiff by relying on inaccurate results from the Motherisk Lab. Counsel submits that it is not plain and obvious there is no duty of care owed by HMQ and the CAS and the law concerning the application of Syl Apps is not settled and thus, the motions should be dismissed.

[145] Additionally, it is submitted that HMQ owed the Plaintiff a fiduciary duty to ensure that decisions made involving Indigenous children are made recognizing the constitutional rights of the child, the family, and the Indigenous community which were violated in this case. Furthermore, it is submitted that the FACS had a duty of care to ensure that all decisions made regarding Indigenous children are made recognizing the constitutional rights of the Indigenous community and the family.

[146] HMQ submits the case law makes it plain and obvious that HMQ owed no duty of care to the Plaintiff with respect to the various FACS, to the HSC, or to the Motherisk Lab. The claims alleging breaches of the Charter are untenable. If there were such breaches committed by demanding bodily samples which were tested improperly, HSC submits the Plaintiff’s cause of action is against the parties who demanded the samples, not HMQ. Finally, it is submitted that this action is an abuse of process because it is in reality a collateral attack on the court orders that have been made in the family law context.

[147] The FACS submits that it draws it authority from statute and the paramount purpose of the legislation is to ensure the best interests of the child. The FACS conducts investigations in order to assess the best interests of the child, so it cannot also owe a duty of care to the child’s parent. Syl Apps made it clear that to impose a duty of care on the FACS to the parents would create potential for serious and significant conflict when clearly the FACS has a statutory duty to the child.

[148] With respect to the allegations of a breach of s. 7 Charter rights, the FACS submits that there is no basis for such a claim against this Defendant. The J.B. matter proceeded through the judicial system at a time when the results of the Independent Review Report were available and the judge decided it was in the child’s best interest to be made a Crown Ward for the purposes of adoption. Thus, the arguments advanced by J.B. in this proceeding concerning his Indigenous identity ought to have been made during the trial process. The claims have no merit and ought to be dismissed.

Analysis

[149] The Plaintiff’s claims against these Defendants in negligence is predicated on there being a duty of care in existence which was breached. Earlier in these reasons, I have determined that there is no duty of care owed by HMQ or the FACS to the Plaintiffs and that finding applies to J.B. as well. There is nothing different in the factual matrix of his claims that distinguishes it from the other cases or supports the argument that somehow a duty of care can be made out in these circumstances.

[150] Furthermore, I am not persuaded that there is any merit in the argument that it is “unfair” to dismiss the claims at this point without allowing the Plaintiff to advance them and secure expert opinions or other evidence. The purpose of motions launched pursuant to Rule 21 is to dispose of claims that have no basis in law and hence, no chance of success. To do so, the court must decide whether the claims as pleaded, accepting the allegations as true and capable of proof, have any chance of success. The suggestion that deficiencies in pleadings should be remedied through amendments is not an appropriate response. Simply put, if there is no duty of care, a claim cannot be maintained based in negligence and therefore no remedy can be sought. For the reasons articulated dealing with the other claims, the negligence claims against CAS and HMQ by J.B. cannot stand and must be struck without leave to amend.

[151] While counsel relies on Chisholm v. Children’s Aid Society, 2016 ONSC 3592, that case involved a motion pursuant to Rule 2.1, which has both a different test and a different procedure than Rule 21.01. Similarly, a motion for summary judgment pursuant to Rule 20 requires a different analysis by the court.

[152] While counsel emphasized that it was important to note that this claim is her client’s only remedy for damages, in my view, that cannot be a factor for my consideration on a this motion. Similarly, the submission that the “devastating consequences to the parents” cannot be accepted. Rule 21 motions require the court to decide whether the claim has any chance of success; the court does not entertain potential damages in coming to this determination. It is important to bear in mind that these motions are brought by two defendants only: the FACS (and its employees) and HMQ. Regardless of the outcome of the motions before me, the actions will proceed against HSC, Dr. Koren, Motherisk Lab, and other defendants.

[153] J.B. pleads that the moving defendants acted in a manner inconsistent with s. 35(1) of the Act. Further, it is alleged these defendants disregarded the TRC Report. There are no specific actions complained of as constituting these breaches of the Act and the TRC Report.

[154] Any duty owed by the FACS to recognize the Indigenous identity of people who are affected by their actions would be to the child and not to the parent, for the reasons articulated in Syl Apps. J.B. cannot make such a claim against HMQ and the CAS as there is no duty owed. That claim has no chance of success.

[155] J.B. alleges an infringement of s. 35(1) of the Act, which confirms the existing Aboriginal and treaty rights of Indigenous peoples in Canada. It is unclear from the pleadings what rights J.B. alleges were infringed by the moving Defendants. J.B. had the right to appeal the order making the child a Crown ward with no access for the purposes of adoption and he did so. The Court of Appeal addressed the section 35(1) claim in its reasons: CAS of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931 (“C.T.”). The Court of Appeal noted that J.B. signed an agreed statement of facts prior to the trial, which stated the child was not Indigenous.

[156] The Court of Appeal stated in its reasons restoring the trial judge’s determination of no access, at para. 12:

The trial judge was aware of the fact that the Motherisk test results were the subject of scrutiny, controversy and complaint. She ignored the test results and placed no weight on them. She concluded that the evidence – apart from the Motherisk results – supported her conclusion that the best interests of the child were not served by placing the child with the mother or the father.

[157] Counsel submits that the law surrounding the government’s fiduciary duty to Indigenous peoples is an emerging area. J.B. alleges there is a fiduciary duty owed to him by HMQ and by the FACS due to his Indigenous status and that a different relationship therefore exists. It is difficult to conceive of how the FACS could have breached this alleged duty when the issue of the Indigenous identity of J.B. and his child was not raised until the appeal proceedings following the trial. The duty of the FACS is to the child and there is no fiduciary relationship with the parent. Thus, an action based on a breach of a fiduciary relationship must fail.

[158] The allegation of an infringement of s. 35 of the Act is, in reality, a collateral attack on existing court orders and thus an abuse of process. Furthermore, J.B. cannot assert a breach of his s. 35 rights when the issue of the Indigenous identity of the child was not raised before the trial judge. In fact, the Court of Appeal in C.T. noted, at para. 57, that there was no evidence whatsoever before the trial judge that the parents or the child were in any way involved or connected to a particular Indigenous community and/or Indigenous cultures until the father declared at the appeal stage that he was Cree and the mother of the child was Mi’kmaq.

[159] The other claims are simply bald statements without any further detail to set them apart from the allegations that form the basis for the claims in negligence. A Plaintiff cannot simply plead “bad faith” to make it a reasonable cause of action. As Broad J. noted in S.H., at para. 42, “[t]here can be no stand-alone action for bad faith. An allegation of bad faith must be tied to some breach of duty by the Defendant. Given that the FACS owes no duty of care to the Plaintiff, a bald claim that it acted in bad faith cannot constitute a reasonable cause of action. Accordingly the allegations … are struck without leave to amend.” The same reasoning applies to the claims of J.B..

[160] There are no specifics provided concerning the allegations of bad faith; they are seemingly tied to the allegations of negligence based on a duty of care. Bad faith requires the “conscious doing of a wrong because of dishonest purpose or moral obliquity. What this means is that bad faith involves intentional duplicity, obstruction or obfuscation”: Children’s Aid Society of Peel (Region) v. F. (K.J.), 2009 ONCJ 252, at para. 25. There are no facts pleaded that would meet this requirement. Bad faith is not independently actionable and it cannot be attached to a claim in negligence: Elder Advocates of Alberta Society v. Alberta, [2011] 2 S.C.R. 261. Thus if the claim in negligence fails, the bad faith action cannot be sustained. In this case, the claim in bad faith cannot succeed.

[161] J.B. asserts breaches of s. 7 Charter rights. It is not suggested there was any direct contact with Ontario. The law is clear that the Plaintiff must claim against the parties he alleges breached his rights and so his claim against Ontario in a “supervisory” capacity must fail for the reasons articulated regarding the other claims.

[162] With respect to the alleged Charter breaches committed by the FACS, it appears to be J.B.’s position that, somehow, the FACS had the ability to ignore court orders to ensure J.B.’s Charter rights were protected. That does not accord with the law. J.B. had and he availed himself of alternative remedies, which was held in Quinn, at paras. 61-62, to be an important factor to consider in a claim for damages arising from Charter breaches.

[163] The Plaintiff pleads that his s. 7 Charter rights were affected because the FACS relied upon the Motherisk testing when it apprehended the child and it is alleged the FACS knew or ought to have known at that time that the testing was unreliable. At its core, this is simply a claim that is based in negligent investigation. That claim has no prospect of success given the lack of duty of care owed by FACS to J.B. Additionally, the Plaintiff cannot dress up his claim in the language of a lack of procedural fairness when it really is an attack on the results of the investigation of the FACS.

[164] I agree with the submissions of counsel for the moving Defendants that this action against them is, in essence, an attempt to attack the underlying court orders, which constitutes an abuse of process. The Plaintiff seeks to challenge the correctness of the previous judicial decisions by asserting that the evidence that was relied upon by the trial judge was incorrect and that it resulted in an unfair outcome. It is difficult to understand this argument, given that the concerns about the Motherisk tests were raised at the trial level and the trial judge explicitly noted that she made her findings without any reliance on the Motherisk test results. It is impermissible for this action to be used as a way to challenge the outcome of the investigation conducted by FACS. The doctrine of abuse of process does not allow parties to re-litigate matters for sound reasons: Quinn, at para. 81. The claims must be struck without leave to amend.

Conclusion and Orders

[165] The motions by the moving Defendants to strike various claims are granted without leave to amend. I make this order because I have found, for the reasons articulated, that the pleadings fail to disclose a reasonable cause of action against the moving Defendants and thus, it serves no purpose to grant leave to amend.

[166] In summary:

• R. Action: The claims against CAS, Brenner, Buchnea, and Woodstock are struck without leave to amend. The claims against HMQ and Klein are struck without leave to amend.
• M. Action: The claims against CCAS and HMQ are struck without leave to amend.
• W. Action: The claim of T.W. against the CAS and Marilyn Smart are struck without leave to amend. The claims against HMQ are struck without leave to amend.
• MD. Action: The claims of M.MD. and D.W. against the CAS are struck without leave to amend. The claim in its entirety is struck against HMQ without leave to amend.
• T. Action: The claim against the CAS and HMQ are struck without leave to amend.
• TH. Action: The claim is struck against HMQ without leave to amend. The claim of J.TH. is struck against the CAS without leave to amend.
• B. Action: The claims against Ontario and the FACS are struck without leave to amend.

[167] If counsel cannot agree on costs, I may be contacted.

D. A. Wilson J.

Date: May 1, 2019

[1] The analysis was set out by the House of Lords in Anns v. Merton London Borough Council (1977), [1978] A.C. 728 (U.K. H.L.) and somewhat reformulated but consistently applied by the SCC, most notably in Cooper v. Hobart, [2001] 3 S.C.R. 537.