COURT FILE NO.: 17-74697 DATE: 2022/03/04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

JAYELLE ALAFI (née FOSTER) and SAREL ALAFI Plaintiffs

– and –

ANDREA LINDENBACH, AMANDA RICHARD, FIONA WARDLE, THE MIDWIVES OF ALGOMA and THE CHILDREN’S AID SOCIETY OF ALGOMA Defendants

Counsel: Raymond A. Murray, for the Plaintiffs Meryl Rodrigues and Anita Varjacic, for the Defendants, The Midwives of Algoma, Andrea Lindenbach, Amanda Richard, and Fiona Wardle James C. Dakin, for the Defendant, The Children’s Aid Society of Algoma

HEARD: February 25 and June 30, 2021, with further written submissions (Hearing by Videoconference)

RULING ON TWO MOTIONS

(To Strike Portions of the Statement of Claim)

Corthorn J.

Introduction

[1] Jayelle Alafi and Sarel Alafi are the parents of Tamara Alafi, born on November 25, 2015. During her pregnancy with Tamara, Ms. Alafi engaged the services of a midwife. Upon moving from Ottawa to Sault Ste. Marie in October 2015, Ms. Alafi’s file was transferred from an Ottawa-based midwife organization to the Midwives of Algoma (“MOA”).

[2] Through the MOA, the Alafis interacted with three midwives. They are the individual defendants named in this action – Andrea Lindenbach, Amanda Richard, and Fiona Wardle. Ms. Richard and Ms. Wardle were both present at the Alafi residence, at different times of the day on November 25, 2015, for the delivery. Ms. Richard returned to the Alafi residence, with Ms. Lindenbach, on November 26, 2015.

[3] On that date, one or both of Ms. Richard and Ms. Lindenbach communicated with the Children’s Aid Society of Algoma (the “Society”) and with a physician at the Sault Area Hospital. That evening, two Society employees attended the Alafi residence, accompanied by one or more members of the Sault Ste. Marie Police Service. Tamara was apprehended and taken to the Hospital.

[4] With the consent of a Society representative, and without consent from either of the plaintiffs, Tamara was administered antibiotics for a possible infection. Thereafter, the results of Tamara’s bloodwork showed that Tamara was not suffering from an infection. The treating physician ordered that the administration of antibiotics be ceased.

[5] In the fresh as amended statement of claim (“the Pleading”), the plaintiffs make allegations with respect to a child protection application filed by the Society on November 30, 2015. The plaintiffs allege that the Society sought a declaration that Tamara was in need of protection because of the Alafis’ failure to both seek and consent to medical treatment Tamara required. The plaintiffs also allege that the outcome of the protection application, heard on December 1, 2015, was as follows:

• Tamara was found not to be in need of protection;
• The Society was ordered to return Tamara to the plaintiffs; and
• Tamara’s return to the plaintiffs was conditional on them attending all medical appointments for Tamara and following all reasonable recommendations of medical professionals.

[6] The plaintiffs’ claims against the individual defendants and the MOA (collectively, “the Midwives”) are based in (a) negligence, (b) negligent misrepresentation, (c) negligent infliction of mental suffering, and (d) intrusion upon seclusion [^1]. The plaintiffs’ claims against the Society are based in (a) negligence, (b) misfeasance of public office, and (c) breach of the plaintiffs’ rights pursuant to s. 7 of the Charter [^2], to liberty and to security of the person.

[7] As against all of the defendants, the plaintiffs seek non-pecuniary general damages of $400,000 for pain, suffering, and loss of enjoyment of life. The plaintiffs also seek damages for the cost of medical and rehabilitative treatment and for loss of income; the damages claimed under those headings are not particularized. Last, the plaintiffs seek punitive, aggravated, and/or exemplary damages of $600,000.

[8] As against the Society only, the plaintiffs seek (a) a declaration that their respective rights under s. 7 of the Charter were breached, and (b) pursuant to s. 24 of the Charter, damages or an alternative remedy (“the Charter claim”).

[9] The Midwives bring their motion pursuant to rr. 21.01(1)(a) and (b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, with respect only to the claims made against them by Mr. Alafi. The Midwives ask the court to strike the portions of the Pleading that relate to Mr. Alafi. The Midwives’ position is that they did not owe a duty of care to Mr. Alafi. They submit that the claims made by him are untenable or disclose no reasonable cause of action (rr. 21.01(1)(a) and (b), respectively).

[10] The Society brings its motion pursuant to r. 21.01(1)(b) with respect to the claims made by both plaintiffs. The Society asks the court to conclude that the Pleading discloses no reasonable cause of action in negligence, specifically because the Society did not owe a duty of care to the plaintiffs. The Society also asks the court to conclude that the Charter claim does not disclose a reasonable cause of action.

[11] In response, the plaintiffs acknowledge that the claims advanced are unique and/or novel. The plaintiffs submit that the uniqueness and/or novelty of their claims should not, without further consideration, be a basis for striking their claims at this early stage of the action. The plaintiffs ask the court to (a) conclude that their claims may succeed, and (b) leave the merits of their claims to be determined at trial on the basis of a complete record.

The Issues

[12] The issues to be determined on the Midwives’ motion and the Society’s motion are as follows:

1. Are Mr. Alafi’s claims against the Midwives based in negligence, negligent misrepresentation, and negligent infliction of mental suffering to be struck, without leave to amend, because they disclose no reasonable cause of action?
2. For the purpose of the Society’s motion, is the court entitled to consider the contents of two documents which form part of the record on the November 2015 child protection application?
3. Are the plaintiffs’ claims against the Society based in negligence to be struck, without leave to amend, because they disclose no reasonable cause of action?
4. Are the plaintiffs’ claims against the Society based on an alleged breach of the plaintiffs’ s. 7 Charter rights to liberty and to security of the person to be struck without leave to amend?

Motions Pursuant to rr. 21.01(1)(a) and (b)

[13] Rule 21.01 permits a party to an action to bring a motion for a pre-trial determination of a question of law and/or for an order striking an opposing party’s pleading:

(1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.

[14] No evidence is admissible on a motion pursuant to r. 21.01(1)(a) unless the presiding judge grants leave or the parties consent to evidence being filed: see r. 21.01(2)(a). No evidence is admissible, at all, on a motion under r. 21.01(1)(b): see r. 21.01(2)(b).

[15] The test on a motion under r. 21.01(1)(b) was established by the Supreme Court of Canada in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. At p. 980, Wilson J. explained the test as follows: “assuming that the facts as stated in the statement of claim can be proved, is it ‘plain and obvious’ that the plaintiff’s statement of claim discloses no reasonable cause of action?” Also at p. 980, Wilson J. defined “plain and obvious” as follows:

As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.

[16] The “plain and obvious” test has been considered many times in the three decades since Hunt was decided. For example, the Court of Appeal for Ontario considered the test in Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683, 117 O.R. (3d) 721. At paras. 30-31, the Court listed the following principles to be applied on a motion under r. 21.01(1)(b):

(a) the material facts pleaded must be deemed to be proven or true, except to the extent that the alleged facts are patently ridiculous or incapable of proof; (b) the claim incorporates by reference any document pleaded and the court is entitled to read and rely on the terms of such documents as if they were fully quoted in the pleadings; (c) novelty of the cause of action is of no concern at this stage of the proceeding; (d) the statement of claim must be read generously to allow for drafting deficiencies; and (e) if the claim has some chance of success, it must be permitted to proceed. [^3]

[17] A claim will be found to be legally insufficient if a plaintiff seeks relief for acts that are not prescribed under the law: Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 10.

[18] To survive a motion under r. 21.01(1)(b), the statement of claim must, at a minimum, include the basic elements of a recognized cause of action pursuant to which the plaintiff claims entitlement to damages and/or other forms of relief. The failure to plead a necessary element of the cause of action amounts to a “radical defect on the basis of which it is plain and obvious that the plaintiff cannot succeed”: Deep v. Ontario, [2004] O.T.C. 541 (Ont. S.C.), at para. 34.

[19] The “plain and obvious” test also applies to motions under r. 21.01(1)(a): see MacDonald v. Ontario Hydro (1994), 19 O.R. (3d) 529 (Gen. Div.), at pp. 533-534, aff’d MacDonald v. Ontario Hydro (1995), 26 O.R. (3d) 401 (Div. Ct.), at p. 406; Law Society of Upper Canada v. Ernst & Young (2003), 65 O.R. (3d) 577 (C.A.), at para. 49.

[20] Rule 21.01(1)(a) is not intended to provide a process for a pre-trial determination where any one or both of the following factors is present:

• Material facts are in dispute (i.e., there is no agreement between the parties as to the material facts which underpin the question of law posed); and
• The motion requires consideration of a matter of law which has not been fully resolved/settled in the jurisprudence: see Portuguese Canadian Credit Union v. CUMIS, 2010 ONSC 6107, 104 O.R. (3d) 16, at para. 28.

[21] In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, the Supreme Court of Canada mandated that care be exercised by the court when determining a motion to strike. At para. 21, McLachlin J. highlighted that, “[t]he law is not static and unchanging.” Addressing that point further, she said:

The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions … Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

[22] Several years after Imperial Tobacco was decided, the Supreme Court of Canada called for a culture shift to promote “timely and affordable access to the civil justice system”: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 2.

[23] In Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, 447 D.L.R. (4th) 543, at para. 18, the Court reiterated the importance of the prompt resolution of actions, including “resolving questions of law by striking claims that have no reasonable chance of success”. At para. 19, the Court said that “a claim will not survive an application to strike simply because it is novel. It is beneficial, and indeed critical to the viability of civil justice and public access thereto that claims, including novel claims, which are doomed to fail be disposed of at an early stage in the proceedings” (emphasis in original).

[24] I turn first to the Midwives’ motion and then to the Society’s motion.

The Midwives’ Motion

[25] At this stage of the action, the Midwives do not take issue with the claims made by Ms. Alafi.

[26] The Midwives’ motion is restricted to Mr. Alafi’s claims based in (a) negligence, (b) negligent misrepresentation, and (c) negligent infliction of mental suffering. Those claims are collectively referred to in this ruling as “the negligence claims”. Each of the negligence claims is premised on the imposition on the Midwives of a duty of care to Mr. Alafi. The Midwives request that the negligence claims be struck in their entirety, without leave to amend.

[27] The paragraphs of the Pleading relevant to the negligence claims are too numerous to repeat in this ruling. The allegations upon which the negligence claims are based are, instead, summarized below.

a) Are Mr. Alafi’s claims against the Midwives based in negligence, negligent misrepresentation, and negligent infliction of mental suffering to be struck?

i) The Law

[28] The preliminary question to be answered is whether the proposed duty of care falls within an established (or analogous) category of a duty of care. [^4] If it does not do so, then the court must carry out the Anns/Cooper [^5] analysis to determine whether the proposed duty of care should be recognized in law. That analysis is carried out in two stages.

[29] At the first stage, the court considers whether the alleged harm was reasonably foreseeable and whether there exists sufficient proximity between the parties to give rise to a duty of care:

• Reasonable foreseeability is determined by asking whether the person harmed was “so closely and directly affected by the [defendant’s] act that [the defendant] ought reasonably to have them in contemplation as being so affected”: Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), at p. 580.
• The proximity analysis requires the court to consider whether a plaintiff and defendant were in a sufficiently close and direct relationship to make it fair and just to impose on the defendant a duty of care towards the plaintiff: Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, [2018] 1 S.C.R. 587, at para. 23; Paxton v. Ramji, 2008 ONCA 697, 92 O.R. (3d) 401, at para. 64.

[30] Policy considerations are relevant to the stage one, proximity analysis. One of the policy considerations addressed as part of that analysis is the potential for conflicting duties to arise: see, for example, Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83, at para. 41.

[31] If reasonable foreseeability and proximity are made out, then the court moves to the second stage of the analysis. At that stage, the court determines whether there are residual policy considerations why the proposed duty of care should not be recognized.

[32] The policy considerations relevant at the second stage are broader in scope than those relevant to the proximity analysis at the first stage. At the second stage, the court considers the implications that recognition of the proposed duty of care would have on “other legal obligations, the legal system and society more generally”: Paxton, at para. 78, citing Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 51.

[33] The starting point for the Anns/Cooper analysis is the Pleading.

ii) The Pleading

[34] The negligence claims made by the plaintiffs are pleaded collectively. The claims advanced by Mr. Alafi are not distinguished in any way from the claims advanced by Ms. Alafi. For the purpose of the Midwives’ motion, that collective method of pleading and the lack of distinction between the plaintiffs’ respective claims are problematic and result in a determination of the motion in part only.

[35] At para. 96 of the Pleading, the plaintiffs list the statutes upon which they plead and rely in support of their respective claims. One of the statutes is the Midwifery Act, 1991, S.O. 1991, c. 31 (“the Act”). Section 3 of the Act defines a midwife’s scope of practice as follows:

The practice of midwifery is the assessment and monitoring of women during pregnancy, labour and the post-partum period and of their newborn babies, the provision of care during normal pregnancy, labour and post-partum period and the conducting of spontaneous normal vaginal deliveries.

[36] At paras. 75(a)-(ii), the plaintiffs collectively make 35 allegations of negligence against the Midwives. To a large extent, those allegations can be broken down into categories defined by the scope of practice set out in s. 3 of the Act. For example,

• at paras. 75(c)-(f), (j)-(l), and (p), the allegations appear to relate to the assessment of, monitoring of, and care to Ms. Alafi during the pregnancy, labour and post-partum period; and
• at paras. 73(k), (n)-(q), (s), and (t), the allegations appear to relate to the assessment of, monitoring of, and care to Tamara during the post-partum period.

[37] The allegations in that regard are referred to in this ruling as “the scope of practice claim”.

[38] There is a second component to the plaintiffs’ claims against the Midwives. The plaintiffs, once again collectively, allege that the Midwives were negligent in their dealings with the plaintiffs when assessing whether it was necessary to involve the Society. The allegations in that regard include the following:

• During the post-partum period, the Midwives failed to communicate their belief to the plaintiffs that Tamara was at risk of serious or immediate harm (para. 75(u));
• The Midwives failed to communicate with the plaintiffs whether Tamara needed immediate medical attention that would necessitate the potential intervention of the Society (para. 75(x));
• The Midwives failed to take alternative measures before contacting the Society. The alternative measures that the plaintiffs allege could have been taken include conducting a more fulsome assessment of Tamara, recommending that an ambulance be called, or even calling an ambulance (para. 75(y));
• The Midwives failed to give the plaintiffs an opportunity to take the necessary steps to attend to Tamara’s needs (para. 75(bb)); and
• The Midwives were uninformed about the plaintiffs’ faith, failed to make inquiries in that regard, made incorrect assumptions, and drew negative inferences about the plaintiffs (para. 75(cc)).

[39] Another statute listed in para. 96 of the Pleading is the Child and Family Services Act [^6], (“CFSA”). The plaintiffs do not cite the sections of the CFSA upon which they rely. Section 72 is titled, “Duty to report the child in need of protection”. Section 72(1), items 2i and 2ii provide as follows:

(1) Despite the provisions of any other Act, if a person, including a person who performs professional or official duties with respect to children, has reasonable grounds to suspect one of the following, the person shall forthwith report the suspicion and the information on which it is based to a society:

2. There is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s, i. failure to adequately care for, provide for, supervise or protect the child, or ii. pattern of neglect in caring for, providing for, supervising or protecting the child.

[40] The allegations of negligence summarized in para. 38, above, appear to relate to the Midwives’ assessment of their statutory duty to report and their decision to contact the Society on November 26, 2015. The second component of the plaintiffs’ claims is therefore referred to as “the duty to report claim”.

[41] The claims in negligent misrepresentation and/or negligent infliction of mental suffering are also (a) collectively made, and (b) premised on the existence of a duty of care owed by the Midwives to the plaintiffs.

[42] The claims in negligent misrepresentation are set out at paras. 81-82 of the Pleading:

81. The Midwives had a duty of care to the Plaintiffs. The Midwives made untrue, inaccurate, and misleading representations to the Plaintiffs, including, but not limited to, failing to communicate the alleged urgency of Tamara’s health condition and necessity of pediatric consultation, and the consequences of declining a pediatric consultation. The Midwives’ conduct fell below the standard of care required of midwives and was negligent.
82. The Plaintiffs reasonably relied on the Midwives’ negligent misrepresentations. Amongst others, the Plaintiffs did not realize the alleged urgency of Tamara’s health condition and declined pediatric consultation. This reliance was detrimental to the Plaintiffs, resulting in the CAS apprehending Tamara and the related trauma.

[43] The claims in negligent infliction of mental suffering are set out at para. 83 of the Pleading:

83. The Plaintiffs state that the Midwives are liable for negligent infliction of mental suffering. The Midwives’ negligent conduct towards the Plaintiffs, intrusion upon seclusion, and negligent misrepresentation was a wanton and reckless disregard for the Plaintiffs’ interests. It was foreseeable that the Plaintiffs would suffer from mental harm and shock when amongst other wrongs, the Midwives caused the Plaintiffs’ first child to be apprehended by the CAS on the second day of her life, and the Plaintiffs have in fact suffered from psychological harm.

[44] I turn next to the positions of the parties with respect to the negligence claims.

iii) The Positions of the Parties

[45] The Midwives describe the practice of midwifery as rooted in the care of women during normal and low-risk pregnancies, labour, delivery, and the post-partum period. The Midwives’ position is that, in carrying out that practice, a midwife owes a duty of care to the patient only.

[46] The Midwives acknowledge that the psychological harm which Mr. Alafi alleges he suffered may have been reasonably foreseeable to “a class of plaintiffs that include [him] in the circumstances of this case” [^7]. The Midwives submit, however, that consideration of the proposed duty of care to Mr. Alafi stalls at the Anns/Cooper stage one, proximity analysis.

[47] The Midwives describe Mr. Alafi as falling within the category of a non-patient third party (i.e., spouse, partner, or father of the patient). The Midwives submit that individuals within that category lack sufficient proximity to the Midwives for the proposed duty of care to be imposed. The Midwives’ position is that, in any event, at the second stage of the Anns/Cooper analysis, residual policy considerations weigh against the imposition of the proposed duty of care.

[48] The Midwives submit that, absent a duty of care, it is plain and obvious that the negligence claims will not succeed and must be struck.

[49] Mr. Alafi acknowledges that the negligence claims, premised on the existence of a duty of care owed to him by the Midwives, are novel. Mr. Alafi submits that the language of the Act supports the imposition of the proposed duty of care.

[50] Mr. Alafi’s position is that, in any event, novelty alone is not a basis to strike the negligence claims at this stage of the proceeding. Mr. Alafi acknowledges that the novelty of his claims is relevant to the court’s review of policy considerations that might otherwise preclude the imposition of the proposed duty of care. He submits that the court must, however, be cautious in relying on policy considerations to strike a novel claim.

[51] Mr. Alafi asks the court to dismiss the Midwives’ motion and leave it to the trial judge to deal with policy considerations, if necessary, on the basis of a fulsome record.

iv) Analysis

[52] The Midwives’ motion is said to be brought pursuant to rr. 21.01(1)(a) and (b) of the Rules of Civil Procedure. On a motion under r. 21.01(1)(a), the moving party asks the presiding judge to determine a question of law. At no time, did the Midwives identify ‘the’ question of law that they ask to be determined on this motion. Such a question is not posed in the notice of motion, is not identified in the Midwives’ factum, and was not posited during oral submissions.

[53] The Midwives’ motion is therefore determined pursuant to r. 21.01(1)(b) – based on whether the Pleading discloses a reasonable cause of action.

▪ The Proposed Duty of Care is Novel

[54] The plaintiffs and the Midwives agree that the proposed duty of care does not fall within an established (or analogous) category of a duty of care. As a result, the court must carry out the two-stage Anns/Cooper analysis.

▪ The Anns/Cooper Analysis

[55] At the first stage of the analysis, the court considers both reasonable foreseeability of harm and proximity. The Midwives acknowledge that, in the circumstances of this case, the psychological harm which Mr. Alafi alleges he suffered was reasonably foreseeable. That acknowledgement alone does not support a finding that the proposed duty of care exists. As noted by the Supreme Court of Canada, at para. 41 of Imperial Tobacco, “not every foreseeable outcome will attract a commensurate duty of care. Foreseeability must be grounded in a relationship of sufficient closeness, or proximity, to make it just and reasonable to impose an obligation on one party to take reasonable care not to injure the other.”

[56] I therefore move on to the proximity analysis. Were the Midwives and Mr. Alafi in a sufficiently close and direct relationship to make it just and reasonable to impose on the Midwives a duty of care towards Mr. Alafi? That question must be answered twice: first, with respect to the scope of practice claim and second, with respect to the duty to report claim.

The Scope of Practice Claim

[57] There is clear guidance in the case law on whether a healthcare professional owes a duty of care to a non-patient third party. Based on that guidance, I find that Mr. Alafi’s scope of practice claim (a) stalls at the stage one, proximity analysis because of policy considerations, (b) is doomed to fail, and (c) must be struck at this early stage of the proceeding, without leave to amend.

[58] In Paxton, the Court of Appeal for Ontario considered whether a duty of care could be imposed on a physician towards the future child of a patient. The physician prescribed medication to his female patient on the specific understanding, given the potential side effects of the medication, that she could not become pregnant. The patient’s husband had undergone a vasectomy 4.5 years before the medication was prescribed. The patient subsequently became pregnant and delivered a child in a severely brain-damaged state.

[59] The child, her siblings, and her parents commenced an action against the physician. On appeal from the decision at trial, the Court concluded that, from a policy perspective, there existed the prospect of conflicting duties – a duty to the woman, not yet pregnant at the time of treatment, and a duty to the woman’s future child: at para. 66. The Court expressed concern that such “conflicting duties could well have an undesirable chilling effect on doctors”: at para. 68.

[60] The potential for a healthcare professional to face conflicting duties was also considered in Wawrzyniak v. Livingstone, 2019 ONSC 4900. Cavanagh J. considered whether a duty of care was owed by a physician to a family member of or substitute decision-maker for the physician’s incapable patient. The only plaintiff in the action was the daughter of and substitute decision-maker for the patient whom the two defendant physicians had treated.

[61] At paras. 370 and 371, Cavanagh J. concluded that proximity was not made out because a duty of care owed to a patient’s family member or substitute decision-maker, “would potentially conflict with the doctors’ overarching duty of care owed to their patient.”

[62] I see no reason to distinguish between the Midwives, as healthcare professionals who owe an overarching duty of care to their patients, and other healthcare professionals, such as physicians, who owe a similar duty of care to their patients.

[63] In Paxton, when declining to impose the proposed duty of care, the Court relied on two policy considerations. First, as discussed above, the Court relied on the potential for conflicting duties. Second, it relied on the “necessarily indirect relationship” between the doctor and the future child: at para. 71.

[64] Mr. Alafi asks the court to conclude that, as the spouse of one patient and the father of the other, his relationship with the Midwives can be distinguished from those of (a) a future child of a physician’s not-yet-pregnant patient, (b) a patient’s offspring, and (c) a patient’s substitute decision-maker. I agree that Mr. Alafi’s relationship to the Midwives can be distinguished from each of those relationships.

[65] I also agree that a spouse/partner/father of a patient stands in a more direct relationship with a healthcare professional than does a future child of a not-yet-pregnant patient. I find, however, that the more direct relationship between Mr. Alafi and the Midwives does not outweigh the policy consideration of potential conflicting duties.

[66] There is an important similarity between all of the relationships described in para. 64, above, and Mr. Alafi’s relationship with the Midwives. Each individual, including Mr. Alafi, falls into the category of a “non-patient third party”. I find that Mr. Alafi’s relationship to the Midwives is sufficiently indirect to preclude the imposition of the proposed duty of care.

[67] In reaching that conclusion, I have also taken into consideration s. 3 of the Act. I considered the section both when read in isolation and when read in the context of the Act as a whole. I find that the language of the statute does not support the existence of a degree of proximity sufficient for the imposition of the proposed duty of care.

[68] The decisions in Wawrzyniak and Paxton were both reached following a trial of the subject action. Paxton included an appeal from the decision of the trial judge. Mr. Alafi submits that the fact those two actions proceeded to trial is indicative of the complexity involved in determining whether a novel duty of care is to be imposed.

[69] The novelty of the proposed duty of care is that the type of healthcare professional involved is a midwife – a type of healthcare professional whose duties were not considered in any of the authorities cited. That element of novelty alone is not sufficient to allow the scope of practice claim to survive the Midwives’ motion: Atlantic Lottery Corp., at para. 19. The Midwives fall into the category of healthcare professionals who, in the scope of their practice, owe an overarching duty to their patients and do not owe a duty of care to non-patient third parties.

[70] Mr. Alafi asks the court to exercise caution in dismissing the scope of practice claim at this stage, in particular if the court relies on policy considerations in doing so. In support of that submission, Mr. Alafi relies on para. 52 of the decision of the Court of Appeal for Ontario in Haskett v. Transunion of Canada Inc. (2003), 63 O.R. (3d) 577: “[a] court should be reluctant to dismiss a claim as disclosing no reasonable cause of action based on policy reasons at the motion stage before there is a record on which a court can analyze the strengths and weaknesses of the policy arguments.”

[71] That note of caution was expressed specifically in relation to the broader residual policy considerations under stage two of the Anns/Cooper analysis. The outcome on the appeal had already been determined at stage one. The Court concluded at para. 41, that “whether as an analogous category to negligent misrepresentation or as a new category, on the proximity analysis there is the basis to find a duty of care owed in [the] case.” In Haskett, the relationship in issue was as between a credit reporting agency and the consumer.

[72] The analysis of the proposed duty in the matter before this court stalls at stage one, with policy considerations relevant to the issue of proximity. The degree of caution recommended by the Court in Haskett, with respect to residual policy considerations at the stage two of the Anns/Cooper analysis is therefore not applicable to the determination of the Midwives’ motion with respect to the scope of practice claim.

[73] Even if a cautious approach is required at the stage one, proximity analysis, I find that there exists clear guidance from the Supreme Court of Canada (Syl Apps [^8]), the Court of Appeal for Ontario (Paxton), and this court (Wawrzyniak) with respect to the proposed duty of care in the scope of practice claim. I find that the issue of whether a healthcare professional owes a duty of care to a non-patient third party is a matter of law which has been fully resolved in the jurisprudence.

[74] Mr. Alafi’s scope of practice claim is struck, without leave to amend. I deal next with the duty to report claim.

The Duty to Report Claim

[75] In their factum and in oral submissions, the Midwives’ argument was focused on what I describe as the scope of practice claim, the Midwives’ role as healthcare professionals, and the Anns/Cooper analysis with respect to that component of the plaintiffs’ claims. In responding to the motion, the plaintiffs alluded, if not more than alluded, to the Midwives’ conduct as it relates to reporting to the Society and Tamara’s apprehension.

[76] For several reasons, it would be unfair to both the Midwives and the plaintiffs for the court to determine the motion as it relates to the duty to report claim without hearing further from those parties:

• It was not until well after the conclusion of oral submissions and the receipt of additional written submissions that the court had the opportunity to review the case authorities;
• It was not until that time that the court had the opportunity to fully consider the implications, to the outcome of the Midwives’ motion, of the manner in which the plaintiffs’ claims are pleaded;
• The Midwives and the plaintiffs were not advised prior to the release of this ruling that the court would approach the Midwives’ motion by considering the duty to report claim distinct from the scope of practice claim; and
• Because of the manner in which allegations are set out in the Pleading, it is difficult, if not impossible, for the court to distinguish allegations related to the duty to report claim from those related to the scope of practice claim.

[77] From a substantive perspective, the Anns/Cooper analysis of the proposed duty of care in the context of the duty to report claim may attract different policy considerations, at both stages one and two, than were considered with respect to the scope of practice claim.

[78] The distinction between the scope of practice claim and the duty to report claim also has implications for the motion to strike Mr. Alafi’s claims in negligent misrepresentation and negligent infliction of mental suffering. To the extent that those claims are premised on the proposed duty of care in the scope of practice claim, they are struck. To the extent, if any, that those claims are premised on the proposed duty of care in the duty to report claim, it remains to be determined whether they survive the Midwives’ motion.

v) Summary

[79] Mr. Alafi’s negligence claims based on the proposed duty of care in the scope of practice claims are struck, without leave to amend.

[80] The Midwives’ motion as it relates to the duty to report claim is adjourned.

The Society’s Motion

[81] The plaintiffs’ response to the Society’s motion gives rise to a preliminary issue. That issue is whether the court is entitled to consider the contents of the record from the child protection application filed in November 2015 by the CAS in the Ontario Court of Justice at Sault Ste. Marie.

a) Is the court entitled to consider the contents of two documents which form part of the record on the November 2015 child protection application?

[82] At paras. 68 and 69 of the Pleading, the plaintiffs make allegations related to the Society’s protection application. The plaintiffs therein particularize the relief sought by the Society on its application, some of the grounds upon which the Society relied, and the order made. The plaintiffs also list six orders or findings not made on the application.

[83] In the matter before this court, the plaintiffs’ responding motion record includes an affidavit sworn by an associate lawyer at the firm by which the plaintiffs are represented (“the Ade affidavit”).

[84] The Ade affidavit is brief; it includes only three substantive paragraphs and deals exclusively with the November 2015 protection application. The exhibits to the Ade affidavit are copies of (a) the November 30, 2015 Form 8B: Application (Child Protection and Status Review), naming the plaintiffs in this action as respondents to the protection application, and (b) the December 1, 2015 Form 25: Order (Temporary) made by Kwolek J.

i) The Positions of the Parties

[85] The Society’s position is that because the Pleading refers to both the Form 8B: Application and the Form 25: Order (Temporary), those documents form an integral part of the plaintiffs’ claim. The Society submits that the court is entitled to read and rely on the contents of those documents when determining the motion.

[86] The plaintiffs’ position is that the court is not entitled to read and rely on the contents of the documents for the motion under r. 21.01(1)(b). The plaintiffs submit that the Pleading makes minimal reference to the documents and, in any event, the documents do not form an integral part of the factual matrix.

[87] More generally, the plaintiffs submit that the court must be cautious on a r. 21.01(1)(b) motion when considering anything other than the basic facts in either document – specifically because it is the Society who seeks to rely on the documents in support of their efforts to demonstrate that the plaintiffs’ claims against the Society have no chance of success. The plaintiffs submit that permitting the Society to rely on the contents of the documents would, in effect, be permitting the Society to tender and/or rely on evidence.

ii) The Law

[88] Rule 25 governs pleadings in an action. Rule 25.06(7) provides that, “[t]he effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible, but the precise words of the document or conversation need not be pleaded unless those words themselves are material.”

[89] One of the principles to be applied on a r. 21.01(1)(b) motion is that, for documents incorporated by reference in a pleading, “the court is entitled to read and rely on the terms of such documents as if they were fully quoted in the pleading”: Trillium, at para. 30.

[90] In Montreal Trust Co. of Canada v. Toronto Dominion Bank (1992), 40 C.P.C. (3d) 389 (Ont. Gen. Div.), Borins J. addressed the distinction, for the purpose of a r. 21.01(1)(b) motion, between facts and evidence. The plaintiff corporation’s claims stemmed, in part, from a $24,000,000 loan agreement between the three defendant banks and Ball Packaging Products Canada Inc. (“Ball”). Montreal Trust and the Bank of Tokyo Canada were assignees, as permitted under the loan agreement. After Ball defaulted on the loan, several banks commenced separate actions against the defendant banks based on the latter’s conduct on the assignment of the loan agreement.

[91] Each of the statements of claim referred to the terms of the loan agreement and of the assumption agreement; those pleadings did not refer to the precise wording of any provision of either agreement.

[92] At para. 3, Borins J. concluded that the two agreements were sufficiently pleaded within the meaning of r. 25.06(7) so as to form an integral part of the statements of claim. At para. 3, Borins J. also described the agreements as “documents upon which each plaintiff must rely to establish its claim.”

[93] At para. 4, Borins J. explained the two reasons why he permitted one of the defendant banks to rely on the agreements for the purpose of the r. 21.01(1)(b) motion. First, “the purpose of r. 25.06(7) is to avoid unnecessary verbosity in pleading”. As a result, a party is neither required nor expected to reproduce, in their pleading, the provisions of an agreement or other document upon which the party must rely to establish their claim.

[94] Second, Borins J. distinguished between evidence and a fact as pleaded. He included in “evidence” items such as an affidavit, transcripts of evidence taken under r. 39.03, and documents not referred to in a pleading that would be evidence for the purpose of a summary judgment motion under r. 20. Borins J. concluded, at para. 4, that the subject agreements did not constitute evidence intended to prove facts; instead “the provisions of the agreements relied on by the plaintiffs constitute facts just as if they were reproduced as part of the statement[s] of claim.”

[95] For the motion before this court, it is important to distinguish between an action for damages based on an alleged breach of the terms of an agreement and an action based in negligence.

[96] In Leadbeater v. Ontario (2001), 16 C.P.C. (5th) 119 (Ont. S.C.), the plaintiff sought damages based on several causes of action including negligent prosecution, breach of judiciary duty, and wrongful imprisonment. On their motion to strike pursuant to r. 21.01(1)(b), the defendants sought to rely on what Nordheimer J. described, at para. 7, as “considerable material from the criminal proceedings against the plaintiff including the actual charges laid, the transcripts of the proceedings and the rulings made by various judges in the course of those proceedings.” At para. 7, Nordheimer J. expressed the view that in doing so, the defendants were attempting to take the conclusions reached in Montreal Trust further than was intended by Borins J.

[97] Nordheimer J. accepted “the basic proposition that the court can review documents that are referred to in [a pleading]”: at para. 8. For the types of criminal proceedings to which the statement of claim in Leadbeater referred, the review must be limited to “certain basic facts”: at para. 8. The basic facts in the criminal proceeding included the date the charges were laid, the exact wording of the charges, when the trial was conducted, and the date on which the appeal from the decision of the trial judge was heard.

[98] At para. 9, Nordheimer J. determined that to go beyond “basic facts” would result in transgression from a motion to strike to a motion for summary judgment. Also, at para. 9, Nordheimer J. cautioned against the reliance on documents in the context of a motion to strike: “with the exception of basic factual matters of the type to which I have referred, it is not proper to have reference to other evidence on a motion such as this for the purpose of trying to establish that the plaintiff’s claim has no chance of success.”

[99] The Court of Appeal for Ontario recently considered Montreal Trust on an appeal from the decision of a motions judge to strike a claim for malicious prosecution. In McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, the appellants (plaintiffs) sought to rely on five documents referred to in their pleading – the transcript from a criminal proceeding, the decisions of three judges, and the Canada Revenue Agency Tax Operations Manual.

[100] At para. 32, the Court summarized the principles from Montreal Trust:

As noted by Borins J. (as he then was) in Montreal Trust Co., at para. 4, a statement of claim is deemed to include any documents incorporated by reference into the pleading and that form an integral part of the plaintiff’s claim. Among other things, this enables the court to assess the substantive adequacy of the claim. In contrast, the inclusion of evidence necessary to prove a fact pleaded is impermissible. A motion to strike is unlike a motion for summary judgment, where the aim is to ascertain whether there is a genuine issue requiring a trial. On a motion to strike, a judge simply examines the pleading; as mentioned, evidence is neither necessary nor allowed.

[101] In McCreight, the Court concluded that the motion judge did not err in relying on the three orders – those documents were expressly pleaded and, as a result, were incorporated in the amended statement of claim: at para. 35. By contrast, the Court found that the reasons of each of the three judges and the transcript of the criminal proceeding constituted evidence; the reasons did not form an integral part of the amended statement of claim: at para. 35. The Court concluded that, in any event and “for the most part, the requisite facts that emanated from [those] documents [had] been pleaded and the motion judge was therefore at liberty to rely on those elements of the pleading in reaching his decision”: at para. 35.

[102] With those principles in mind, I next consider the Pleading – specifically the references made by the Alafis to documents from the Society’s November 2015 protection application.

iii) The Pleading – paras. 68 and 69

[103] In paras. 68 and 69 of the Pleading, the plaintiffs make the following allegations with respect to the Society’s November 2015 protection application:

68. On or about November 30, 2015, the CAS filed a protection application with the Ontario Court of Justice in Sault Ste. Marie, in which the CAS sought, amongst other relief, that the court make the finding that: 1) Tamara was likely to suffer physical harm because of a pattern of neglect in caring for, providing for, supervising or protecting her by Jayelle and Sarel, and 2) Tamara requires medical treatment to cure, prevent or alleviate physical harm or suffering, and 3) Jayelle and Sarel refused or did not provide consent to the treatment. The CAS also sought extensive supervision order provisions against Jayelle and Sarel.
69. On or about December 1, 2015, following a hearing on the CAS’ protection application, the Honourable Justice R. Kwolek of the Ontario Court of Justice in Sault Ste. Marie issued an order placing Tamara in the care of Jayelle and Sarel on the sole condition that Jayelle and Sarel attended all medical appointments for Tamara and followed all reasonable recommendations of medical professionals. Conversely, the court did not order that: a. Tamara was a child in need of protection. b. Tamara was ever suffering physical harm because of a pattern of neglect in caring for, providing for, supervising or protecting her by Jayelle and Sarel. c. Tamara required medical treatment to alleviate physical harm or suffering by Jayelle. d. Jayelle or Sarel had refused or did not consent to Tamara receiving treatment. e. The CAS had authority to consent to any medical treatment on Tamara’s behalf. f. The medical treatment administered to Tamara at the Hospital was in her best interests.

[104] For the purpose of the Society’s motion pursuant to r. 21.01(1)(b), is the court entitled to consider the contents of either of the Form 8B: Application (11 pages) and Form 25: Order (two pages) from the Society’s 2015 child protection application?

iv) Analysis

[105] I find that paras. 68 and 69 of the Pleading make minimal reference to the substantive portions of either the Form 8B: Application or the Form 25: Order (Temporary). I also find that paras. 68 and 69 do not include the full and precise wording of either the substantive portion of the application or the operative portion of the order. I find that the documents are not an integral part of the factual matrix upon which the plaintiffs rely.

[106] I find that the documents are (a) similar in nature to documents in a criminal proceeding, and (b) distinguishable from a loan agreement upon which is based a claim in breach of contract. As a result, for the purpose of the Society’s motion, the court is restricted to a review of basic facts. The basic facts include the date of the application, the relief sought, the date of the order, and the terms of the order made.

[107] To consider anything more in terms of the contents of the documents would be to permit the Society to tender and/or rely on evidence – when the rules governing a motion to strike specifically prohibit a party from relying on evidence. If, as the moving party, the Society wanted to tender and/or rely on evidence, then it should have proceeded by way of a motion for summary judgment under r. 20.

b) Are the plaintiffs’ claims against the Society based in negligence to be struck?

i) The Pleading

[108] The particulars of the plaintiffs’ claims against the Society include paras. 51-70 and 84-88 of the Pleading. The material facts set out in paras. 51-70 address the following matters:

• The attendance of two Society representatives at the Alafi home on November 26, 2015;
• The involvement of the Society representatives in apprehending Tamara and arranging for her to be transported to the Hospital;
• The nature and substance of the communication by the Society representatives with the examining physician at the Hospital;
• The conduct of the Society representatives towards the plaintiffs with respect to who had authority to provide consent for treatment of Tamara; and
• The practical and religious implications for the plaintiffs and Tamara as a result of the apprehension on November 26, 2015, and the return of Tamara to the plaintiffs, five days later on December 1, 2015.

[109] In para. 84(a)-(i), the plaintiffs set out their allegations of negligence. The allegations related to the claim based in misfeasance of public office are set out in paras. 85 and 86. At paras. 87 and 88, the plaintiffs set out the Charter claim. In this section of the ruling, I deal only with the claim against the Society based in negligence. The Charter claim is addressed in a separate section of this ruling which follows below.

ii) The Positions of the Parties

[110] The Society’s position is that the law is well-settled; it is clear that the Society did not owe any duty of care to the plaintiffs in their capacity as Tamara’s parents. The Society submits that throughout its involvement with the Alafis and Tamara, it owed a duty only to Tamara. The Society asks the court to strike the plaintiffs’ claim in negligence, without granting leave to amend.

[111] The plaintiffs submit that the potential statutory immunity to which a Society is entitled under the CFSA must be determined on a case-by-case basis. The plaintiffs submit that, for one or more of the following reasons, the Society is not immune to a civil claim:

• The Society was not acting under the authority of and/or in compliance with the CFSA when it apprehended Tamara; and
• It was ultimately determined by the court that Tamara was not in need of protection.

[112] The plaintiffs distinguish their claims in negligence against the Society from the types of claims discussed in the decisions cited as authority by one or more of the parties on this motion. The distinguishing feature is said by the plaintiffs to be that in none of the authorities cited do the circumstances giving rise to the claim include either (a) the pre-investigation conduct of a defendant Society, or (b) an alleged failure on the part of a defendant Society to carry out an investigation prior to apprehending the child.

[113] The plaintiffs submit that, at a minimum, their claims against the Society are novel and, in the circumstances of this case, novelty is not a basis to strike the claim in negligence.

iii) The Law and Analysis

[114] For the reasons that follow, I find that it is plain and obvious that the plaintiffs’ claims in negligence against the Society cannot succeed and must be struck. The plaintiffs are not entitled to leave to amend the Pleading for the purpose of pursuing claims based in negligence against the Society.

▪ The case authorities are clear

[115] To determine the Society’s motion, requires that the Anns/Cooper analysis be carried out once again.

[116] The leading authority on the issue of the duty of care in child protection proceedings has, since 2007, been and remains the Supreme Court of Canada decision in Syl Apps Secure Treatment Centre v. B.D.. In summary, the circumstances upon which the plaintiffs’ claims in Syl Apps were based included the following:

• After writing a story for school in which she alleged that she had been physically and sexually abused by her parents, a 14-year-old girl was apprehended and placed in a foster home.
• The police carried out an investigation; no criminal charges were laid against the parents.
• The girl was transferred from the foster home to several psychiatric facilities.
• During the girl’s admission to one of the psychiatric facilities, an order was made finding the girl to be in need of protection and making her a temporary ward of the Crown.
• Shortly after that order was made, the girl was transferred to a treatment centre. By that time the girl was of an age that her consent to the transfer was required; she consented to the transfer. At the same time, the girl was made a permanent Crown ward.

[117] Several years after the girl was transferred to the treatment centre, certain of her family members commenced an action against the CAS, the treatment centre, and several of their respective employees. The family members’ claims were based in negligence related to the approach to the girl’s treatment at the treatment centre. The family members alleged that as a result of the defendants’ negligence the girl was never returned to her family and the family members were deprived of a relationship with her.

[118] The treatment centre was successful on a motion pursuant to r. 21.01(1)(b). An order was made striking the family members’ claims against the treatment centre (and other moving party defendants) on the basis that the subject pleading disclosed no reasonable cause of action. The motion judge concluded that the moving party defendants owed a duty of care only to the child and not to her family: Syl Apps, at paras. 14-16. The family members were successful on their appeal to the Court of Appeal for Ontario, with Sharpe J.A. dissenting.

[119] The question for the Supreme Court of Canada in Syl Apps was set out by Abella J. at para. 2: “The question in this case is whether, a treatment centre and its employee into whose care a child has been placed, owe a hitherto unrecognized duty of care to the family of a child they have been ordered to protect.”

[120] Even though the question which the Court in Syl Apps addressed arose from a case in which a finding of “in need of protection” had been made, the Court was clear in its conclusion that the potential for a duty of care to the parents stalls at the proximity stage of the Anns/Cooper analysis. In assessing proximity, the Court looked at the governing legislation in a broad context; the Court did not look exclusively at the circumstances that followed the in-need-of-protection finding: at paras. 38-40.

[121] The primacy of the best interests of the child over parental rights in the child protection context was emphasized several times in the Court’s reasons:

• That primacy is “an axiomatic proposition in the jurisprudence” (at para. 44);
• Citing three of its earlier decisions, the Court highlighted that it had “confirmed that pursuing and protecting the best interests of the child must take precedence over the wishes of a parent” (at para. 45); and
• The references in the CFSA to parents and family are “not stand-alone principles … [they] are there to protect and further the interests of the child, not of the parents” (at para. 46). The Court emphasized that pursuant to s. 1(2) of the CFSA, family and parental relationships are to be recognized only to the extent that they are “consistent with the best interests, protection and well-being of children” (at para. 48).

[122] Abella J. summarized why, in the broad context of child protection, a duty of care to the parents is not imposed on service providers. At para. 50, she said:

If a corresponding duty is also imposed with respect to the parents, service providers will be torn between the child’s interests on the one hand, and parental expectations which may be unrealistic, unreasonable or unrealizable on the other. This tension creates the potential for a chilling effect on social workers, who may hesitate to act in pursuit of the child’s best interests for fear that their approach could attract criticism — and litigation — from the family. They should not have to weigh what is best for the child on the scale with what would make the family happiest, finding themselves choosing between aggressive protection of the child and a lawsuit from the family.

[123] In a 2020 decision, the Court of Appeal for Ontario stated that “Syl Apps is clear: the duty at all stages is to the child” – both pre and post-apprehension: J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198, 445 D.L.R. (4th) 642, at para. 41. In J.B., the Court highlighted that it had previously held that “the CAS does not owe parents a duty of care either during the investigation or proceeding stage”: J.B. at para. 42, referring to H.A.G. v. Family and Children’s Services Niagara, 2017 ONCA 861, leave to appeal refused, [2018] S.C.C.A. No. 181, at paras. 2, 3.

[124] When determining whether a duty of care was owed to parents, neither the Supreme Court of Canada, in Syl Apps, nor the Court of Appeal for Ontario, in J.B., distinguished between the stages of child protection matters. At para. 39 in J.B., the Court of Appeal for Ontario summarized the underlying ratio of Syl Apps as follows: “where entities exist to protect and provide for children’s best interests, to avoid conflicting duties, they must only owe a duty of care to the children they serve.”

▪ The Alafis’ claim falls within the scope of Syl Apps and J.B.

[125] The Alafis attempt to distinguish their claims from those advanced in Syl Apps and in other decisions related to the conduct of a Children’s Aid Society. The Alafis submit, for example, that their claims involve the “pre-investigation” stage and/or a failure on the part of the Society to conduct any investigation whatsoever.

[126] At paras. 51-57 of the Pleading, the plaintiffs set out the material facts with respect to the attendance of two Society employees at the Alafi residence on November 26, 2015. Those material facts relate to (a) the discussion between the Society employees and Ms. Alafi, and (b) how the Society employees removed Tamara from the Alafi residence and transported her to the hospital.

[127] The allegations of negligence, as against the Society, are set out at para. 84(a)-(i), as follows:

The Plaintiffs state that the Defendant, the CAS, owed a duty of care to the Plaintiffs. The CAS’ conduct and/or the conduct of the employees, servants, agents, or contractors for whom the CAS is vicariously liable fell below the standard of care and was negligent. The particulars of the CAS’s negligence include, but are not limited to, the following:

a. Failing to allow Jayelle to accompany the CAS workers to the Hospital without any reasonable justification; b. Failing to comply with their obligations and responsibilities under sections 1(2), 37, 40, 46, 47, 57, 62 and 106(b) of the Child and Family Services Act, R.S.O. 1990, c. C.11; c. Falsely representing to Dr. DellaVedova and other medical authorities that the CAS had authority to consent to medical treatment on Tamara’s behalf; d. Unlawfully consenting to medical treatment on Tamara’s behalf in violation of section 57, 62 and 106(b) of the Child and Family Services Act, R.S.O. 1990, c. C.11; e. Falsely representing to the Plaintiffs that they had lost their parental rights to medical decision-making on Tamara’s behalf as a result of the CAS’s apprehension; f. Unlawfully depriving the Plaintiffs of their parental rights to medical decision-making on their child’s behalf; g. Failing to follow proper procedure when apprehending Tamara; h. Acting outside the scope of the CAS’s lawful authority; and i. Such other and further particulars as may arise by virtue of receiving expert opinions and the discovery process.

[128] Before addressing the allegations of negligence for the purpose of the Society’s motion, I will make a few observations about this portion of the Pleading. First, it is important to highlight that the primary purpose of pleadings is to define the issues as precisely as possible for the benefit of both the parties and the court: Asfordby Storage and Haulage Ltd. v. Bauer, [1985] O.J. No. 2838 (Ont. H.C.), at para. 13.

[129] Turning to the Pleading, the references to statutory provisions are of minimal, if any, assistance. For example, to properly particularize the allegations of negligence made at para. 84(b), the plaintiffs are required to,

• describe the obligations and/or responsibilities that the plaintiffs allege the Society was required to fulfill;
• refer to the specific section of the CFSA upon which the plaintiffs rely in support of the existence of those obligations and/or responsibilities; and
• describe the acts or omissions of the Society which the plaintiffs allege fall short of fulfilment of those obligations and/or duties.

[130] As another example, the allegations made at paras. 84(g) and (h) lack sufficient particularity. The types of particulars listed immediately above are also required with respect to “the proper procedure” (para. 84(g)) and the Society’s “lawful authority” (para. 84(h)).

[131] Last, the plaintiffs emphasized that their claims against the Society are based on the conduct of its employees in the pre-investigation stage and by reason of their failure to conduct an investigation. Yet, there is no mention in para. 84 of the “pre-investigation stage”; nor is there any reference specifically to the lack of any investigation.

[132] Leaving aside the deficiencies in the Pleading as it relates to the alleged negligence of the Society, I find that the plaintiffs’ characterization of that negligence as arising from the pre-investigation stage, or the lack of any investigation, does not take the plaintiffs’ claims out of the scope of protection matters addressed in the CFSA. Nor does that characterization take the plaintiffs’ claims outside the scope of the principles established in Syl Apps and followed by the Court of Appeal for Ontario in J.B.

▪ The decisions in Aspden and D.T. do not assist the Alafis

[133] In support of their position, the plaintiffs rely on two decisions of this court: Aspden v. Family and Children’s Services Niagara, 2015 ONSC 1297, 49 C.C.L.T. (4th) 318, and D.T. v. Highland Shores Children’s Aid, et al, 2016 ONSC 1432, 77 R.F.L. (7th) 382. Both decisions post-date Syl Apps and pre-date J.B. I am not persuaded that either decision is of assistance to the Alafis.

The Decision in Aspden

[134] In Aspden, the plaintiffs’ claims were based on the conduct of the Family and Children’s Services of Niagara (“FACS”) when investigating the disclosure by EA that he had been sexually abused. That investigation resulted in EA’s brother, JA, being charged with sexual assault, placed in a youth detention centre, and restricted in communication with and visits from his family. The FACS also advised the boys’ parents that it intended to seek Crown Wardship for JA, but ultimately did not seek that relief. The criminal charges against JA were eventually dropped.

[135] At para. 12, item 15 of the decision in Aspden, Leitch J. summarized the Aspdens’ claims against FACS as follows: “The plaintiffs allege that all defendants were negligent and intentionally failed in their duty to the plaintiffs and were negligent in their investigation of [JA] and intentionally abused their powers, which has resulted in psychological trauma for all of the plaintiffs.”

[136] The parents’ allegations included that the FACS acted outside their child protection mandate. Leitch J. considered whether there was sufficient proximity between the FACS and JA’s parents, such that it would be fair to impose “the duty of care to properly investigate alleged sexual conduct by their child”: at para. 59.

[137] At para. 61, Leitch J. concluded that the “proposed duty of care does not prevent the FACS from effectively discharging its statutory duties; nor does it interfere with its paramount duty to [JA] and [EA].” Leitch J. also concluded that the sufficient proximity was made out: at para. 64.

[138] Leitch J. found that there was no remedy available to the parents, under the CFSA, to challenge the way their child was being treated – there was no CFSA application in which the parents could participate: at para. 65. As a result, if the proposed duty of care was ultimately recognized, that recognition would not lead to the possibility of parallel proceedings and re-litigation of matters addressed at a child protection hearing: at para. 67. This conclusion contributed, in part, to Leitch J. finding that there were no residual policy reasons to support declining to impose a duty of care of the nature identified in Syl Apps.

[139] Leaving aside that the decision in Aspden pre-dates the decision in J.B., Aspden is, in any event, distinguishable from the matter before this court. First, the specific duty of care that the court was asked to consider in Aspden is distinguishable from the duty of care which the Alafis allege they were owed by the Society. Second, the Alafis had the opportunity to and did participate in a child protection hearing. Third, and as a result, the potential exists for the Alafis’ claim in negligence against the Society to involve re-litigation of matters addressed at the November 2015 child protection hearing.

[140] In summary, the decision in Aspden does not assist the Alafis in their opposition to the motion for an order striking the claims against the Society based on negligence. I turn next to the decision in D.T.

The Decision in D.T.

[141] For the moment, I leave aside that the decision in D.T. pre-dates the decision in J.B. DT’s claims against Highland Shores Children’s Aid (“HSCA”) and several of its employees arose from the following circumstances. DT married, had two children with, and ultimately separated from Ms. L. In two different jurisdictions and in the post-separation period, Ms. L. made reports about DT to a Children’s Aid Society.

[142] Ms. L. first reported DT to the Northumberland CAS – a predecessor to HSCA. On two separate occasions in 2006, Ms. L. made reports to the Northumberland CAS. Amongst other things, Ms. L. reported that DT engaged in sexually inappropriate behaviour with the children.

[143] On both occasions, no protection concerns were identified and the protection file was closed. One such report, however, resulted in criminal charges being laid against DT. Those charges were eventually withdrawn because the prosecution was of the opinion that there was no reasonable prospect of conviction.

[144] After the criminal charges were withdrawn, the Northumberland CAS commenced a child protection application. It sought a finding that the children were in need of protection because they were at risk of emotional harm. That application was eventually withdrawn, on consent. As a term of the withdrawal, the parents were both required to follow an access plan developed by an expert who had been retained in the matter.

[145] The parents were involved, concurrently, in family litigation. In November 2009, that litigation was resolved on consent. As a term of the final order, DT was to have unsupervised access with the children by March 2010.

[146] Also, during the same period, Ms. L. relocated to the jurisdiction of the Hastings CAS – another predecessor to the HSCA. Ms. L. made several reports in that jurisdiction – none of which included allegations of DT engaging in sexually inappropriate behaviour with the children.

[147] Hastings CAS decided that it would bring a child protection application if, in the family litigation, DT was granted unsupervised access with the children. Hastings CAS made that decision without reviewing the Northumberland CAS file in its entirety, the court file for the child protection proceeding in that jurisdiction, or any of the pleadings and documents in the family litigation. The Hastings CAS did not speak to DT or any members of his family before it commenced the protection application.

[148] At the conclusion of a 14-day protection hearing, the application judge made a number of findings about the conduct of the HSCA and its employees. Those findings were summarized at para. 17 of D.T. as follows:

• The allegations that the Hastings CAS and its employees relied on in support of its allegations of a risk of sexual harm were the same allegations fully known to and investigated by the Northumberland CAS when it commenced its protection application in October 2007 on the basis of risk of emotional harm only, and in January 2009, when it terminated the proceedings;
• No new facts, circumstances or evidence were tendered by the Hastings CAS at the 14-day hearing that had not already been the subject of the original joint police – Northumberland CAS investigation in July 2006, which culminated in the decision to terminate the child protection proceedings in January 2009;
• The Hastings CAS and its employees failed to conduct a full investigation, failed to provide the court with balanced and current information, failed to assess and evaluate its protection concerns on the basis of all the relevant evidence and information on an ongoing basis, and filed with the court affidavits that contained numerous false and misleading statements respecting the plaintiff and his children; and
• That Hastings CAS commenced its child protection proceedings because it wanted to ensure that unsupervised access, scheduled to begin in March 2010 in accordance with the consent custody and access order, would not take place.

[149] DT commenced an action in which he alleged that the HSCA and its employees approached their statutory duties with a biased attitude towards him, which led them to engage in negligent and/or bad faith conduct. That conduct was alleged to include the failure to conduct a full investigation and ignoring information relevant to the investigation. The individual defendants named in DT’s action were three employees of the Hastings CAS. They had each sworn an affidavit in support of the protection application.

[150] The defendant HSCA and its employees brought a motion pursuant to r. 21 to strike DT’s pleading as against them, without leave to amend. On the motion, Quigley J. reviewed the case law as it existed at the time (i.e., prior to the decision by the Court of Appeal for Ontario in J.B.). At para. 26, Quigley J. highlighted that the case law was mixed with respect to both “the investigation stage of a child protection matter or after a child has been taken into care”. In the same paragraph, he noted that as of early 2016, “[a] majority of cases seem to hold that Syl Apps categorically precludes any duty of care owed by a society to a parent, at any stage of a child protection matter”.

[151] Quigley J. distinguished Syl Apps because it related to negligent treatment of a child in care and DT’s claim related to negligence and bad faith in the conduct of an investigation. Quigley J. also noted that there was no allegation of bad faith in Syl Apps as there was by DT as against the HSCA.

[152] I find that in two ways Quigley J.’s reasoning runs contrary to the subsequent decision of the Court of Appeal for Ontario in J.B.

[153] First, Quigley J. concluded that the Supreme Court in Syl Apps expressly limited its decision to the context before it”: D.T., at para. 34. Quigley J. referred to “the apparent difference in the dynamics at play in the parent-child-society triangle at the investigation vs. child-in-care stage”: D.T., at para. 39. By contrast, at para. 41 of J.B., the Court of Appeal for Ontario concluded that “Syl Apps is clear: the duty at all stages is to the child.”

[154] Second, at pp. 16-17 [^9], Quigley J. concluded that with proximity arguably made out, it was “at least arguable” that the HSCA owed a duty of care to DT. By contrast in Syl Apps, the Supreme Court of Canada concluded that the potential for a duty of care from a Children’s Aid Society to parents stalls at the proximity stage.

[155] For those reasons, I find that the decision in D.T. is not of assistance to the plaintiffs in response to the Society’s motion to strike the plaintiffs’ claims in negligence.

iv) Summary

[156] Accounting for the degree of caution required on a motion of this kind, I conclude that the principles established in Syl Apps Secure Treatment Centre v. B.D., and confirmed in J.B. v. Ontario (Child and Youth Services), apply to the plaintiffs’ claims in negligence against the Society. The law is well settled – the Society owed a duty of care only to Tamara. The Anns/Cooper analysis of the plaintiffs’ claims against the Society stalls at the proximity stage. The plaintiffs’ claims against the Society based in negligence are struck, without leave to amend.

c) Are the plaintiffs’ claims against the Society based on an alleged breach of the plaintiffs’ s. 7 Charter rights to liberty and to security of the person to be struck?

i) The Pleading

[157] In the prayer for relief, the plaintiffs request a declaration that the Society “violated [their s. 7 Charter rights] in relation to having given consent to medical treatment of [their daughter], without lawful authority” (para. 1(f) of the Pleading). Relying on that alleged breach of their s. 7 Charter rights, the plaintiffs ask the court for damages or another remedy pursuant to s. 24(1) of the Charter. The plaintiffs do not specify the quantum of damages claimed.

[158] The allegations in support of the plaintiffs’ claims for a Charter remedy are set out in paras. 87 and 88 of the Pleading:

87. The plaintiffs state that the CAS, through its servants, officers, employees, and/or agents breached the plaintiffs’ s. 7 Charter rights to liberty and security by falsely representing that the CAS had authority to consent to Tamara’s medical treatment and by unlawfully providing consent to her medical treatment. The CAS deprived the plaintiffs of their parental rights to medical decision-making on behalf of their child and of their procedural rights during the CAS apprehension process.
88. The CAS’s actions and inactions were contrary to the principles of fundamental justice and are not justified under s. 1 of the Charter.

[159] Is it plain and obvious that the Pleading discloses no reasonable cause of action based on a violation of the plaintiffs’ respective s. 7 Charter rights?

ii) The Positions of the Parties

[160] The Society's position is that, for several reasons, the answer to the question posed in the preceding paragraph is “yes”. Those reasons include the following:

• The plaintiffs are not entitled to any remedy under the Charter because the Society is an individual actor. A Charter remedy is only available as against a state actor; and
• In any event, the conduct upon which the Charter claim is based did not engage the plaintiffs’ respective s. 7 rights.

[161] The Society’s alternative position is that if the court concludes that the plaintiffs are entitled to pursue the Charter claim, then it is plain and obvious that the plaintiffs are unable to satisfy the first and third parts of the four-step approach to claims of this kind prescribed by the Supreme Court of Canada in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28. For example, the Society submits that the plaintiffs are unable to establish that their s. 7 Charter rights were breached (step one in Ward). As another example, the Society points to the remaining concurrent claim in misfeasance of public office and the potential for duplicative awards of damages (step three in Ward).

[162] In response, the plaintiffs’ position is that the Society is a state actor and therefore potentially liable for a remedy under s. 24(1) of the Charter. In addition, the plaintiffs submit that it is not plain and obvious that the conduct of the Society did not engage the plaintiffs’ respective s. 7 Charter rights to liberty and to security of the person.

[163] With respect to the four-step analysis from Ward, the plaintiffs’ position is that it is not plain and obvious that the Society did not breach their respective rights to liberty and/or to security of the person (step one). The plaintiffs submit that the pursuit of the concurrent claim based in misfeasance of public office does not preclude them from pursuing a Charter claim (step three). The plaintiffs ask the court on this motion to leave it to the trial judge to determine whether there is an overlap between the two causes of action and, if so, the potential for duplication in the damages.

iii) The Law and Analysis

[164] For the following reasons, I dismiss the Society’s motion as it relates to the Charter claim.

[165] First, I find the Society’s submission that it is an individual actor, not a state actor, to be troubling at a minimum. Without deciding the first step in the Ward analysis, there is case authority which supports a finding that a parent’s right to security of the person is engaged in the context of a child protection proceeding: see (a) the Supreme Court of Canada decision in New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46; and (b) the decision of the Court of Appeal for Ontario in Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497.

[166] For example, at para. 61 of N.B. (Min. of Health), McLachlin J. expressed “little doubt that state removal of a child from parental custody pursuant to the state’s parens patriae jurisdiction constitutes a serious interference with the psychological integrity [and therefore security] of the parent.” McLachlin J. concluded that the right to security of the person extends beyond criminal proceedings and can be engaged by a child custody application: at paras. 65, 66.

[167] The Court of Appeal for Ontario relied on N.B. (Min. of Health), in its decision in Kawartha-Haliburton. At para. 65, the Court said, “[c]hild protection litigation engages the Charter rights of both parents and children.” Although the Court spoke generally of the Charter rights of parents, in doing so it cited para. 76 of N.B. (Min. of Health) wherein reference is made to a parent’s right to security of the person in the context of a custody proceeding.

[168] In light of the decision in Kawartha-Haliburton, it is far from plain and obvious that the Society is an individual actor and therefore an entity which cannot be found liable for a remedy under s. 24(1) of the Charter.

[169] Second, the decisions in N.B. (Min. of Health) and Kawartha-Haliburton support a finding that it is not plain and obvious that the plaintiffs’ respective rights to security of the person were not engaged by the Society’s conduct as alleged in the Pleading. The analysis with respect to the alleged breach of the right to security of the person does not, however, end there.

[170] The alleged breach of the plaintiffs’ respective right to security of the person commences with Tamara’s removal from the Alafi home. That alleged breach continues with the Society’s representation to health care professionals that it had the authority to make medical decisions for Tamara. Without deciding any factual issues, those allegations potentially fall within the scope of the removal of custodial and decision-making rights. Put another way, it is not plain and obvious that the plaintiffs’ respective rights to security of the person were not engaged by the Society’s conduct as alleged in the Pleading.

[171] As noted in the preceding paragraph, some of the allegations in support of the Charter claim relate to conduct which pre-dates the date on which the Society is alleged to have filed the protection application related to Tamara. The case authorities focus on child protection litigation and/or child protection proceedings. Given that focus, several questions arise:

• Does the fact that at least some of Society’s conduct, as alleged, pre-dates the date on which the protection application was commenced mean that the subject conduct falls outside the scope of child protection litigation or a child protection proceeding?
• If so, does that timing have an impact on whether the plaintiffs’ respective rights to security of the person were engaged?

[172] The court is not required to answer any of those questions to determine the Society’s motion as it relates to the Charter claim. The fact that such questions arise further supports a finding that it is not plain and obvious that (a) the plaintiffs’ respective rights to security of the person were not engaged and, (b) if engaged, were not breached.

[173] Third, I consider the alleged breach of the plaintiffs’ respective rights to liberty. In support of its request to strike the Charter claim in that regard, the Society relies on the Supreme Court of Canada decision in B.(R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315. I note that decision pre-dates the decisions in both N.B. (Min. of Health) and Kawartha-Haliburton.

[174] The Society emphasizes the different views expressed by the members of the Supreme Court of Canada in B.(R.) as to whether a parent’s right to liberty is engaged in the context of medical decision-making for a child. The Society submits that the lack of unanimity from the Court supports a finding that, as it relates to the liberty interest, it is plain and obvious that the Charter claim discloses no reasonable cause of action.

[175] I find to the contrary. That lack of unanimity supports a finding that it is not plain and obvious that the Alafis’ claim based on the alleged breach of their respective liberty interests does not disclose a reasonable cause of action.

[176] The statutory provisions at issue in B.(R.) were from the Ontario Child Welfare Act, R.S.O. 1980, c. 66. La Forest, L’Heureux-Dubé, Gonthier, and McLachlin JJ. held that the relevant sections, both (a) deprived the appellant parents of their right to decide which medical treatment should be administered to their child, and (b) infringed on the parents’ right to liberty: at p. 374.

[177] Cory, Iacobucci, and Major JJ. took a different approach to the liberty interest. They concluded that the right to liberty may entitle parents to choose among equally effective types of treatment for their child; it does not include the right to deny the child medical treatment determined by a qualified medical professional to be necessary when there is no legitimate alternative treatment: at pp. 430-431.

[178] Based on the authorities cited before this court, the Supreme Court of Canada has yet to rule unanimously as to whether a parent’s liberty interest is engaged in the context of medical decision-making for their child. The lack of unanimity on that issue supports a finding that it is not plain and obvious that (a) the plaintiffs’ respective rights to liberty were not engaged by the Society’s conduct and, (b) if engaged, were not breached.

[179] Fourth, even applying the liberty interest as defined by Cory, Iacobucci, and Major JJ., it is not plain and obvious that the Society’s conduct did not deprive the Alafis from the opportunity to choose among equally effective types of treatment for their child. The allegations in the Pleading, if proven at trial, may support a finding that the Society’s conduct resulted in the Alafis being so removed from the medical decision-making for Tamara that their respective liberty interests were breached.

[180] Last, I consider the third step in the Ward analysis and the concurrency of the Charter claim with the claim based in misfeasance of public office. In that regard, I agree with the plaintiffs. It will be up to the trial judge to address the potential for duplication of damages awarded if any. The existence of the potential for duplication in an award of damages is not a reason to strike the Charter claim at this stage of the action.

[181] There are any number of possible outcomes which negate the potential duplication in an award of damages. For example, the plaintiffs’ claims against the Society may be dismissed in their entirety or the plaintiffs may only succeed with one of the two causes of action. In either event, there will be no duplication in the award of damages. If, at trial, the plaintiffs succeed with both causes of action, it will be up to the trial judge, when awarding damages, to take the potential for duplicative awards of damages into consideration.

iv) Summary

[182] Applying the cautious approach prescribed in Imperial Tobacco, I dismiss the Society's request that the plaintiffs’ Charter claims be struck, without leave to amend.

Disposition

[183] In summary, the outcome on the Midwives’ motion (to this point) and on the Society’s motion is as follows:

1. Mr. Alafi’s claims against the Midwives based on the scope of practice claim, including those in negligence, negligent misrepresentation, and negligent infliction of mental suffering, are struck without leave to amend;
2. The Midwives’ motion to strike Mr. Alafi’s claims based on the duty to report, including those in negligence, negligent misrepresentation, and negligent infliction of mental suffering is adjourned;
3. The plaintiffs are granted leave to amend the Pleading so as to eliminate Mr. Alafi’s claim against the Midwives based on intrusion upon seclusion;
4. For the purpose of the Society’s motion, and with the exception of the basic facts such as the date of the application, the relief sought, the date of the order, and the terms of the order made, the court is not entitled to consider the contents of the record from the child protection application filed by the Society in Sault Ste. Marie in November 2015.
5. The plaintiffs’ claims in negligence as against the Society are struck, without leave to amend.
6. The Society’s motion to strike the Charter claim is dismissed.

[184] The court wishes to hear from counsel for the parties with respect to the paragraphs of the Pleading which can be struck in their entirety at this time (i.e., prior to a determination of the balance of the Midwives’ motion). The court also wishes to hear from counsel for the Midwives and counsel for the plaintiffs on the steps to be taken in order for the balance of the Midwives’ motion to be determined. Last, the court will address with counsel the logistics for dealing with costs of both motions (i.e., once the balance of the Midwives’ motion is determined).

[185] Counsel shall communicate with the office of the trial co-ordinator to schedule a two-hour continuation of the motions, on the record.

[186] The court does not require the parties to file any additional documents in advance of the continuation of the motions. If, however, the parties wish to file additional documents, they may do so on consent or with leave of the court. If leave of the court is required, then the parties shall make written submissions in that regard. The parties shall, if necessary, agree upon a timetable for the delivery of written submissions. The timetable agreed upon shall allow the court a reasonable amount of time, in advance of the continuation of the motion, to determine the request for leave to file additional documents.

Madam Justice Sylvia Corthorn Released: March 4, 2022

Footnotes

[^1]: On the return of the Midwives’ motion, the plaintiffs confirmed that only Ms. Alafi is advancing a claim based on intrusion upon seclusion. With Midwives’ consent, the plaintiffs are granted leave to amend the Pleading, eliminating Mr. Alafi’s claim based in intrusion upon seclusion. [^2]: Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [^3]: The Court cited Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, 1st ed. (Markham: LexisNexis Canada Inc., 2010), at p. 445, for these principles. [^4]: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at para. 36. [^5]: Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.). [^6]: R.S.O. 1990, c. C.11. The circumstances upon which the plaintiffs’ claims are based occurred in November and December 2018 – prior to the amendments to the CFSA which resulted in the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1. [^7]: Midwives’ factum dated February 1, 2021, at para. 19. [^8]: The decision in Syl Apps is discussed in detail in the section of the ruling dealing with the Society’s motion. [^9]: At a certain point in D.T., paragraph numbers are no longer used and it is necessary to rely on page number references.