B.D. et al., by their Litigation Guardian E.S. v. Halton Region Children's Aid Society, Being the Directors Does 1 Through 10, Being the Directors of the Halton Region Children's Aid Society et al. [Indexed as: D. (B.) (Litigation Guardian of) v. Halton Region Children's Aid Society]
79 O.R. (3d) 45
[2006] O.J. No. 181
Docket: C42593
Court of Appeal for Ontario,
Laskin, Sharpe and Juriansz JJ.A.
January 20, 2006
Torts -- Duty of care -- Child who was found in need of protection placed with service provider under Child and Family Services Act for treatment -- Parents bringing action against service provider and social worker employed by service provider for damages for negligence on basis that their actions had prevented child's reintegration into family -- Child not party to action -- Motion judge erring in allowing defendants' motion to strike claim as disclosing no reasonable cause of action -- Claim novel -- It was not plain and obvious that service provider and social worker did not owe duty of care to child's parents in addition to their duty of care to child -- Child and Family Services Act, R.S.O. 1990, c. C.11.
When the 14-year-old R wrote a story at school in which she alleged that her parents physically and sexually abused her, R was apprehended by the Children's Aid Society, which obtained an order that R was a child in need of protection. The judge who granted that order found that R was a child in need of protection [page46] because she had suffered or was likely to suffer emotional harm, not because her parents had sexually abused her. No criminal charges were ever laid against the parents and no court ever found that they had abused R. The order stipulated that efforts be made to reintegrate R with her family. A further order was subsequently granted committing R for treatment at the defendant secure treatment centre. The treatment centre was a "service provider" under the Child and Family Services Act ("CFSA"). R remained a ward of the Children's Aid Society until her 18th birthday and never returned to live with her family. R's parents, siblings and grandmother brought an action against various parties, including the secure treatment centre and a social worker employed by the secure treatment centre, for damages for negligence. They alleged that the treatment centre and the social worker treated R as if she had in fact been sexually abused and then took steps to ensure that R was placed in a group home instead of being reintegrated with her family. R was not a party to the action. On a motion by the defendants under rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to strike the claim as disclosing no reasonable cause of action, the claims against the treatment centre and the social worker were dismissed. The motion judge concluded that the two doctors who had treated R, and who were also sued by the plaintiffs, owed a duty of care to R and to no one else, and that the plaintiffs' claim against the treatment centre and the social worker could stand on no better footing than their claim against the doctors. The plaintiffs appealed.
Held, the appeal should be allowed.
Per Laskin J.A. (Juriansz J.A. concurring): Whether a secure treatment centre under the CFSA owes a duty of care to the parents of a patient under its care raises a novel question of law. It was not plain and obvious that the plaintiffs' claim would fail. It was at least arguable that the harm the plaintiffs complained of -- the loss of any relationship with R -- would be a reasonably foreseeable consequence if the defendants failed to take steps to question whether the sexual abuse occurred and to reintegrate R with her family. Both the governing statute (the CFSA) and the terms of the various court orders affecting R provided support for the argument that there was sufficient proximity in the relationship between the treatment facility and the family, and the social worker and the family, that it would be fair and just to impose a duty of care on those defendants. Although the primary purpose of the CFSA is the promotion of the best interests of children, another purpose -- as long as it is consistent with the primary purpose -- is to promote the integrity and stability of family relationships. While s. 15(6) of the CFSA insulates officers and employees of a children's aid society who carry out their duties in good faith from liability, no similar statutory protection is accorded to employees of a secure treatment centre. The CFSA's emphasis on judicial supervision of the regulatory powers of service providers and their employees suggested that the terms of the various court orders affecting R had relevance for assessing the criterion of proximity, and the terms of those orders, including the initial finding that R was a child in need of protection not because she had been sexually abused but because she had suffered emotional harm or there was a substantial risk that she would suffer emotional harm, and the obligation to support positive contact with R's family and to try to reintegrate her with her family, buttressed the plaintiffs' argument on proximity. It could not be said that the plaintiffs were certain to fail to establish a close and direct relationship with the moving defendants sufficient to give rise to a duty of care. The motion judge assumed that imposing a duty of care on the treatment centre would result in equal duties being owed to R and to her family. However, another possibility, which was at least arguable at the pleadings stage of this action, was that the treatment centre might owe a duty to R's family that differed from the duty owed [page47] to R and that those different duties would not necessarily conflict. Whether finding a duty of care owed to the family of a child as well as to the child herself would create havoc or operational conflicts was better assessed not in the abstract but on a full record.
Per Sharpe J.A. (dissenting): It was plain and obvious that the treatment centre and the social worker did not owe the plaintiffs a duty of care capable of supporting an action in negligence for damages. While the harm alleged by the plaintiffs was a foreseeable consequence of any lack of care on the part of the defendants, the proximity test was not satisfied and there were residual policy considerations which justified denying liability. The motion judge was correct in finding that the analogy between the treatment centre and social worker and a treating physician was determinative. It was not the case that, as the alleged duty owed to the family could potentially be different than the duty owed to R, the two would not necessarily conflict and therefore should be allowed to co-exist. Precisely the same thing could be said about the doctor-patient relationship. The imposition of a duty of care does not rest upon whether or not actual conflict has been demonstrated in a particular case. If the duty claimed would potentially conflict with the defendant's overarching duty, proximity is not made out. Once there has been a judicial finding that the child is in need of protection and must be removed from the custody of the parents, those responsible for caring for and treating the child must place the child's interests ahead of those of the parents. The imposition of different duties on different parties in this context would be unworkable and would interfere with the best care and treatment for the child in need of protection. There was nothing in the CFSA capable of supporting a duty of care to the plaintiffs; nor did anything in the terms of the relevant court orders justify imposing a duty of care towards the plaintiffs.
APPEAL by the plaintiffs from an order of Hoilett J. of the Superior Court of Justice, dated October 1, 2004, striking out a claim as disclosing no reasonable cause of action.
Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492, [1977] 2 W.L.R. 1024, 75 L.G.R. 555, 141 J.P. 526, 121 Sol. Jo. 377, [1977] J.P.L. 514 (H.L.), apld Cooper v. Hobart, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, 96 B.C.L.R. (3d) 36, 206 D.L.R. (4th) 193, 277 N.R. 113, [2001] 11 W.W.R. 221, 2001 SCC 79, 8 C.C.L.T. (3d) 26 (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.) et al.); Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, [2001] S.C.J. No. 77, 56 O.R. (3d) 456n, 206 D.L.R. (4th) 211, 277 N.R. 145, 2001 SCC 80, 8 C.C.L.T. (3d) 153, 13 C.P.C. (5th) 35; Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74, 233 D.L.R. (4th) 193, 312 N.R. 305, 2003 SCC 69, 19 C.C.L.T. (3d) 163, 11 Admin. L.R. (4th) 45 (sub nom. Odhavji Estate v. Metropolitan Toronto Police Force), consd M. v. Newham London Borough Council (sub nom. P. (minors) v. Bedforshire Borough Council, [1994] 2 W.L.R. 554 (C.A.), distd Other cases referred to B. (D.) v. Children's Aid Society of Durham Region, 1996 1067 (ON CA), [1996] O.J. No. 2502, 136 D.L.R. (4th) 297, 92 O.A.C. 60, 30 C.C.L.T. (2d) 310, 64 A.C.W.S. (3d) 340 (C.A.); Canada v. Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205, 143 D.L.R. (3d) 9, 45 N.R. 425, [1983] 3 W.W.R. 97, 23 C.C.L.T. 121, 18 A.C.W.S. (2d) 133; Cheltenham Estates Ltd. v. Ontario (2003), 2003 2976 (ON SC), 64 O.R. (3d) 620, [2003] O.J. No. 1339, 17 C.C.L.T. (3d) 216 (S.C.J.); Haskett v. Equifax Canada Inc. (2003), 2003 32896 (ON CA), 63 O.R. (3d) 577, [2003] O.J. No. 771, 224 D.L.R. (4th) 419, 15 C.C.L.T. (3d) 194 (C.A.), supp. reasons [2003] O.J. No. 1214 (C.A.); Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, 49 B.C.L.R. (2d) 273, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105 (sub nom. Hunt v. T & N plc); [page48] Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1, [1995] O.J. No. 4043 (C.A.); P.S. v. Batth, [1997] O.J. No. 4089, 40 O.T.C. 236 (Gen. Div.) Statutes referred to Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 1 [as am.], 2(2), 15(6), 37(2) [as am.], 40 [as am.], 113(3), 117 Children Act 1989 (U.K.), 1989, c. 41 Family Law Act, R.S.O. 1990, c. F.3 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01 Authorities referred to Weinrib, E.J."Does Tort Law Have a Future?" (2000) 34 Val. U. L. Rev. 561
Matthew Wilton, for appellants. Stephen R. Moore, for respondents.
LASKIN J.A. (JURIANSZ J.A. concurring):--
A. Introduction
[1] This case raises the question whether a service provider under the Child and Family Services Act and a social worker employed by that service provider may owe a common law duty of care to the family of a child committed to them for treatment.
[2] The Halton Region Children's Aid Society ("Halton CAS") apprehended R.D., obtained an order that she was a child in need of protection, and placed her at the Syl Apps Secure Treatment Centre ("Syl Apps"). The family of R.D. sued Syl Apps, one of Syl Apps' social workers, Douglas Baptiste, and one of Syl Apps' doctors, Richard Meen, for damages for negligence and bad faith in their dealings with the family.
[3] The plaintiffs claim that because of the actions of these defendants, R.D. has not been reintegrated with her family. The defendants brought a motion under rule 21.01(1)(b) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] to dismiss the plaintiffs' claim as disclosing no reasonable cause of action. Hoilett J. granted the motion.
[4] The plaintiffs appeal the dismissal of their claim against Syl Apps and against Baptiste. The question on this appeal is whether it is "plain and obvious" that Syl Apps and Baptiste did not owe the plaintiffs a duty of care. [page49]
[5] I do not think that it is plain and obvious that the plaintiffs' claim will fail. The duties asserted are novel. The governing legislation, the Child and Family Services Act, R.S.O. 1990, c. C.11 ("CFSA"), the terms of the various court orders affecting R.D., and the application of the Anns test, suggest that Syl Apps and Baptiste may owe a duty of care to R.D.'s family. I would permit the claim to go forward.
B. Background
(a) Facts alleged in the amended statement of claim
[6] For the purpose of the motion and the appeal, the facts alleged in the plaintiffs' pleading must be taken as true unless they are patently ridiculous or incapable of proof: see Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1, [1995] O.J. No. 4043 (C.A.).
i. Halton CAS apprehends R.D.
[7] The plaintiffs are R.D.'s parents, siblings and grandmother. R.D. herself is not a party to this action. In their amended statement of claim, the plaintiffs allege that R.D. was apprehended by the Halton CAS in June 1995 when she was 14 years old. She was apprehended because she wrote a short story at school in which she alleged that her parents physically and sexually abused her. The plaintiffs claim that the story was fictional and that R.D.'s allegations of abuse are false. They say that R.D. is delusional, which is consistent with a history of mental illness in the family. Although the Halton Regional Police investigated R.D.'s allegations of abuse, no criminal charges were ever laid against the plaintiffs. And no court has ever found that R.D.'s parents abused their daughter.
ii. The wardship orders
[8] In January 1995, the Halton CAS was granted interim wardship of R.D. In September 1995, R.D.'s allegations of abuse were tried before Judge Fuller of the Ontario Court (Provincial Division). He found that R.D. was a "child in need of protection" because she had suffered or was likely to suffer emotional harm, not because her parents had sexually abused her. The plaintiffs allege that Judge Fuller effectively found that R.D. was in need of protection from herself, not from her parents. He ordered that R.D. be made a temporary ward of Halton CAS, but that efforts be made to reintegrate her with her family. The order stipulated:
There will be a monthly meeting arranged between the Society, service providers or their representatives and parents. [page50]
Prior to the child being moved to another facility, all relevant parties including parents, the child's lawyer and Dr. Yaraskevsky will be informed and their input received.
Parents will be able to have information from all service providers involved with the child's care without the need for any consent signed by the child.
Attempts will be made during the period of Society Wardship to reintegrate the family where possible.
[9] In November 1995, the CAS moved for an order committing R.D. to secure treatment at Syl Apps. Despite the plaintiffs' objection, the order was granted.
[10] In October 1996, R.D. was made a permanent ward of the Crown. The order of permanent wardship provided that R.D. should continue to reside at Syl Apps, and that both Syl Apps and Halton CAS should "plan for therapeutic intervention to ensure R.D.'s needs are being addressed upon discharge from Syl Apps". The order also provided that the Halton CAS should "support positive and regular contact between [R.D.] and her family", and that "[a]ll visitation and contact with family members is at the discretion of [R.D.] and the Society". The parents appealed this order, but their appeal was dismissed. R.D. remained a ward of the Halton CAS until her 18th birthday in November 1998. The appellants allege that she has never returned to live with her family.
iii. The plaintiffs' allegations against Syl Apps and Baptiste
[11] The plaintiffs allege that Syl Apps is a "service provider" under the CFSA, and that R.D. resided there from 1995-97. They also allege that Baptiste was a social worker at Syl Apps, and was appointed clinical case co-ordinator responsible for R.D.'s care.
[12] The plaintiffs claim that both Syl Apps and Baptiste were negligent and guilty of bad faith in their dealings with R.D.'s family. The essence of their claim is that Syl Apps and Baptiste treated R.D. as if her parents had physically and sexually abused her, and then took steps to ensure that R.D. was placed in a group home instead of being reintegrated with her family.
[13] In his factum, counsel for the plaintiffs has summarized the allegations against Syl Apps and Baptiste in the amended statement of claim as follows:
Allegations Against Syl Apps:
(a) That Syl Apps, as a secure treatment facility"was under a duty [to the Appellants] to provide competent diagnosis, care and treatment for [R.D.]" [page51] and that failure to do so resulted in R.D.'s inability to be reintegrated with her family;
(b) that Syl Apps failed to follow the judicial direction of reintegration of R.D. back into her family and resisted the recognition of R.D.'s family's right to information about her which resulted in the failure of R.D. to be reintegrated with her family;
(c) that Syl Apps failed to provide R.D. with appropriate care and treatment which resulted in the failure of R.D.'s reintegration with her family; and
(d) Syl Apps' negligent conclusion that R.D.'s parents were child abusers and their treatment of R.D. as the victim of abuse rather than of an organic psychiatric disorder caused the failure of R.D. to be reintegrated with her family.
Allegations Against Baptiste:
(a) that, as a social worker at Syl Apps"Baptiste was under a duty [to the Appellants] to discharge his responsibilities competently and in good faith, and in accordance with applicable legislation";
(b) that Baptiste failed to follow the judicial direction of reintegration of R.D. back into her family and resisted the recognition of R.D.'s family's right to information about her which resulted in the failure of R.D. to be reintegrated with her family;
(c) that Baptiste in bad faith discouraged R.D. from having a relationship with the Appellants on the unfounded basis that R.D.'s parents had abused her;
(d) that Baptiste led R.D. to believe the Appellants sought to harm her with the result that reintegration failed;
(e) that Baptiste's decision to treat R.D. on the assumption she had been abused by her parents destroyed the possibility of successful reintegration; and
(f) that Baptiste recommended R.D. be placed in a group home for victims of abuse after her discharge from Syl Apps rather than be reintegrated with her family without grounds for the assumption of abuse.
[14] Thus, the plaintiffs claim that because of the defendants' negligence, they have been deprived of any relationship with R.D. The parents say that they have lost a daughter whom they did not abuse.
(b) The motion judge's decision
[15] In their action, in addition to suing Syl Apps, Baptiste and Meen, the plaintiffs sued the Halton CAS, several of its employees and Dr. Alina Lazor, who allegedly treated R.D. at the Whitby Mental Health Centre. The action continues against Halton CAS and its employees. However, Syl Apps, Baptiste, Meen, and Lazor brought motions to dismiss the claims against them, contending that they owed no duty of care to the plaintiffs. The motion judge agreed. He concluded that the two doctors, Meen and Lazor, owed [page52] a duty of care to their patient R.D., and to no one else. He then concluded that the plaintiffs' claim against Syl Apps and Baptiste could stand on no better footing than their claim against the doctors. As I have already said, the plaintiffs appeal only the dismissal of their claim against Syl Apps and Baptiste.
C. Analysis
[16] This test to strike a statement of claim on a rule 21.01(1)(b) motion is well known. The moving party must meet a very high threshold. It must show that it is "plain and obvious" that the claim does not disclose a cause of action: see Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93. The court should be wary of foreclosing novel claims at the pleading stage.
[17] To succeed in their action in negligence against Syl Apps and Baptiste, the plaintiffs must first establish that these defendants owed them a duty of care. This court has refused to interfere with a trial judge's finding that a children's aid society owed a duty of care to the father of children it had apprehended because of sexual abuse allegations: see B. (D.) v. Children's Aid Society of Durham Region, 1996 1067 (ON CA), [1996] O.J. No. 2502, 136 D.L.R. (4th) 297 (C.A.). However, whether a secure treatment centre under the CFSA owes a duty of care to the parents of a patient under its care raises a novel question of law. This court has not considered this question. And, as far as I am aware, apart from this case, neither has any trial court.
[18] In Canada, for alleged duties falling outside recognized categories, we determine whether a duty of care exists by applying the Anns test: see Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.). Although it has now been discarded in England and has been criticized by some Canadian academics, the Anns test, as refined by the Supreme Court of Canada, continues to structure the analysis of a duty of care in this country: see Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, [2001] S.C.J. No. 77, and Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74; and see E.J. Weinrib"Does Tort Law Have a Future?" (2000) 34 Val. U. L. Rev. 561.
[19] The refined Anns test has three elements. To establish that Syl Apps and Baptiste owed the family of R.D. a duty of care, the plaintiffs must show:
(1) The harm the family complains of was a reasonably foreseeable consequence of Syl Apps' and Baptiste's failure to take care; [page53]
(2) There is sufficient "proximity" in the relationship between Syl Apps and the family, and between Baptiste and the family, that it would be fair and just to impose a duty of care on these defendants; and
(3) No residual policy reasons exist to negate or limit this duty of care.
[20] At the pleading stage, consistent with the burden of proof on a rule 21.01(1)(b) motion, the family of R.D. is entitled to maintain its action unless Syl Apps and Baptiste show that the plaintiffs are certain to fail in establishing at least one of these three elements of the Anns test. In my view, the defendants cannot meet this burden.
(a) Foreseeability
[21] The plaintiffs allege that Syl Apps and Baptiste took no steps to question whether the alleged sexual abuse occurred, and took no steps to try to reintegrate R.D. with her family. It is at least arguable that the harm the plaintiffs complain of -- the loss of any relationship with R.D. -- would be a reasonably foreseeable consequence if the defendants failed to take these steps.
(b) Proximity
[22] "Proximity" is the word the Supreme Court of Canada has used to describe the "close and direct" relationship between the parties that is needed to ground a duty of care. In substance, the court asks whether the relationship between the plaintiff and the defendant is sufficiently close and direct that the defendant is obliged to be mindful of the plaintiff's interests in conducting its affairs. If it is sufficiently close and direct, then it becomes fair and just to impose on the defendant a duty of care towards the plaintiff.
[23] Here, proximity may be established from two possible sources: the governing statute, the CFSA, and the terms of the various court orders affecting R.D.
i. The CFSA
[24] Two aspects of the statutory scheme are particularly relevant in assessing proximity: one aspect concerns the overriding purposes of the CFSA and the express obligations imposed on service providers to achieve these purposes. The other aspect concerns the statute's emphasis on judicial supervision of children in need of protection. [page54]
[25] Section 1 of the CFSA sets out the purposes of the statute. Although the primary purpose is the promotion of the best interests of children, another purpose -- as long as it is consistent with that primary purpose -- is to promote the integrity and stability of family relationships. Section 1 states:
(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.
(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:
To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.
To recognize that children's services should be provided in a manner that,
i. respects children's needs for continuity of care and for stable family relationships, and
ii. takes into account physical and mental developmental differences among children.
Here, in effect, the plaintiffs say that the defendants have acted contrary to one of the purposes of the statute: they have failed to support the integrity of the family unit.
[26] Section 2 of the CFSA deals with the obligations of "service providers". The statute defines service providers to include a children's aid society. Counsel for Syl Apps agreed that we could also treat his client as a "service provider" under the CFSA. Section 2(2) recognizes that service providers have "duties" not only to the children under their care, but to the parents of these children as well:
Duties of service providers
2(2) Service providers shall ensure,
(a) that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving; and
(b) that decisions affecting the interests and rights of children and their parents are made according to clear, consistent criteria and are subject to procedural safeguards. R.S.O. 1990, c. C.11, s. 2.
[27] Officers or employees of a children's aid society who carry out these duties in good faith are insulated from liability because of s. 15(6) of the CFSA, which states: [page55]
15(6) No action shall be instituted against an officer or employee of a society for an act done in good faith in the execution or intended execution of the person's duty or for an alleged neglect or default in the execution in good faith of the person's duty.
[28] In Edwards, the Supreme Court relied on a similar provision in Ontario's Law Society Act in concluding that the Law Society owed no duty of care to the plaintiff Edwards. In the Supreme Court's view, the exclusion of liability for those employed by the Law Society was "most indicative" of the legislature's intent.
[29] By contrast, no similar statutory protection is accorded to employees of a secure treatment center such as Syl Apps. The absence of a provision according statutory immunity to Syl Apps or to Baptiste for acts done in good faith is one factor supporting an arguable case for proximity between the plaintiffs and the defendants.
[30] In my view, the statutory purposes of the CFSA, the express statutory duties imposed on service providers and the exclusion of secure treatment centers from the protection given by s. 15(6) support the plaintiffs' claim that in treating R.D., Syl Apps and Baptiste had to be mindful of the family's interests.
[31] The other relevant aspect of the CFSA is the statute's emphasis on judicial supervision of children who are in need of protection. A children's aid society cannot on its own determine that a child is in need of protection. Instead, under s. 40 it must ask the court to make that determination. Indeed, but for exceptional circumstances, a child protection worker may not take a child to a place of safety without a warrant. Moreover, neither service providers nor employees of a service provider can on their own determine that a child has been sexually abused. Again, the court must make that determination. The statute's emphasis on judicial supervision of the regulatory powers of service providers and their employees suggests that the terms of the various court orders affecting R.D. have relevance for assessing the criterion of proximity.
ii. The court orders affecting R.D.
[32] In my view, the terms of the various wardship orders buttress the plaintiffs' argument on proximity. Section 37(2) of the CFSA lists a number of grounds on which a court may determine that a child is in need of protection. Two of these grounds -- s. 37(2)(c) and (d) -- relate to sexual abuse. The court may find that a child is in need of protection where the child has been sexually molested or exploited by her parents, or where there is a substantial risk that the child's parents will sexually [page56] molest or exploit her. Significantly, Judge Fuller did not make a finding that R.D. was in need of protection on either of these grounds.
[33] Instead, Judge Fuller found that R.D. was in need of protection under s. 37(2)(f) and (g) of the CFSA: she had suffered emotional harm or there was a substantial risk she would suffer emotional harm, and her parents would not remedy the harm. At bottom then, the plaintiffs say that they were at least entitled to expect that R.D.'s service provider and its employees would treat her in accordance with the court's disposition, and not as if she had been sexually abused, when the court made no such determination.
[34] Under the CFSA, a court order was required to admit R.D. to Syl Apps: see ss. 113(3) and 117. Therefore, I think that the terms of that order are also relevant in considering whether Syl Apps and its employee owed the family of R.D. a duty of care. According to that order, R.D. was placed at Syl Apps on terms that included an obligation to support positive contact with her family, and an obligation to try to reintegrate her with her family.
[35] In the light of the provisions of the statute and of the terms of the court orders affecting R.D., I cannot say that the plaintiffs are certain to fail to establish a close and direct relationship with Syl Apps and Baptiste sufficient to give rise to a duty of care.
iii. The defendants' arguments
[36] Syl Apps and Baptiste make two arguments that they say demonstrate the lack of proximity between them and the plaintiffs. First, they submit that when a legislature intends to impose a legal duty on an entity, the breach of which entitles a citizen to sue for damages, the legislation "specifically creates" that legal duty. Second, they submit that s. 2(2) of the CFSA, which sets out the "duties" of service providers such as Syl Apps, are only "administrative statutory directives" that cannot give rise to a common law duty of care. I do not agree with either submission.
[37] The respondents state no authority for their submission that a duty of care can arise from a statutory scheme only where the legislature specifically creates the duty. And it seems to me that this submission is inconsistent with the Supreme Court's analysis of foreseeability and proximity in cases such as Hobart, Edwards, and Odhavji Estate. Instead, the court has examined the statutory scheme as a whole, including the purpose and [page57] wording of the relevant provisions, to determine whether a duty of care arises. I have undertaken a similar exercise in this case.
[38] It is not at all clear to me that s. 2(2) of the CFSA creates mere "statutory directives", and not "duties" giving rise to common law obligations. Why, I ask rhetorically, do the defendants not owe the plaintiffs a common law duty of care to adhere to the provisions of the CFSA and the court orders made under it? At the very least, it seems to me that what requirements s. 2(2) imposes on service providers is the kind of issue best explored with an evidentiary record.
[39] However, even if s. 2(2) of the CFSA is characterized as a provision creating statutory directives, this court has already affirmed that these directives can inform the determination whether a common law duty of care exists: see Haskett v. Equifax Canada Inc. (2003), 2003 32896 (ON CA), 63 O.R. (3d) 577, [2003] O.J. No. 771 (C.A.). See also Canada v. Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205. In short, whether the obligations in s. 2(2) of the CFSA are duties or statutory directives, they are relevant in determining whether a duty of care should be recognized at common law.
(c) Residual policy considerations
[40] Under the Anns test, foreseeability and proximity establish a prima facie duty of care. However, the court must still ask whether residual policy considerations exist that ought to negate this prima facie duty, or limit its scope. This stage of the Anns test has in mind policy considerations that transcend the relationship between the parties, and instead relate to the effect that recognition of a duty of care would have on other legal obligations and on societal interests. In Odhavji Estate at para. 51, Iacobucci J. put the question this way:
. . . the question to be asked is whether there exist broad policy considerations that would make the imposition of a duty of care unwise, despite the fact that harm was a reasonably foreseeable consequence of the conduct in question and there was a sufficient degree of proximity between the parties that the imposition of a duty would not be unfair.
[41] Syl Apps and Baptiste contend that two related policy considerations negate any prima facie duty of care. First, they contend that imposing a duty of care on them to have regard to the family and its interests would be entirely inconsistent with another established duty of care: a doctor's sole duty to his or her patient. They say that because Syl Apps' employee Dr. Meen owed a duty only to R.D., imposing on Syl Apps and Baptiste a duty not just to R.D. but to her family as well would place the [page58] service provider in a position of irreconcilable conflict with its obligation to treat R.D., and would create havoc in the system.
[42] Before the motion judge, counsel for Syl Apps and Baptiste put this proposition quite dramatically when he said: "[i]t would be the ultimate irony were it to be concluded that there were equal duties owed to 'prey' (Ms. D.) and 'predator' (her parents). The duty, if any, was owed to R., and she is not a plaintiff in this or any other action."
[43] The motion judge accepted the argument of Syl Apps and Baptiste. He held that Dr. Meen owed a duty of care only to R.D. He then concluded that Syl Apps and Baptiste could not have a "greater legal burden or duty of care" toward the plaintiffs than did R.D.'s treating doctor. The plaintiffs did not appeal the dismissal of their claim against Dr. Meen. Their failure to do so, counsel for Syl Apps and Baptiste argued in this court, simply reinforces the wisdom of the motion judge's decision.
[44] Syl Apps and Baptiste make a compelling argument. Compelling as it is, however, I am not persuaded that the argument plainly and obviously must succeed.
[45] Unquestionably, there is authority for the proposition that a doctor's overriding duty is to his or her patient, and that this duty excludes any other duty, even to the parents of a young patient. Molloy J. made this point in a case relied on by the motion judge, P.S. v. Batth, [1997] O.J. No. 4089, 40 O.T.C. 236 (Gen. Div.), at para. 6, where a mother sought to sue a doctor for failing to investigate sexual abuse allegations made by her child:
Dr. Batth also argues that she did not owe any duty of care to the plaintiff. I agree. Dr. Batth's patient was J. and it is to that patient that she owed a duty of care. Before there can be a cause of action for negligence, there must be a relationship between the plaintiff and the defendant which creates a duty of care on the part of the defendant as towards the plaintiff. In this case there was no such duty of care. There is no positive obligation on a doctor to conduct an independent investigation of allegations made by her patient. The evidence shows that J. made a report of sexual abuse to her doctor and that her doctor believed that she was acting in the best interest of the child in reporting those allegations to the Children's Aid Society. In these circumstances there can be no duty of care owed to the plaintiff. Indeed, it would be contrary to the spirit of the Act, as well as her professional obligation to protect the best interest of the child. Accordingly, in my view, a cause of action for negligence does not arise.
[46] However, in accepting the argument that Syl Apps and Baptiste can stand in no different position from Dr. Meen, the motion judge has implicitly made two assumptions: that Baptiste acted under Dr. Meen's direction, and that any duty the defendants owed to the family must be the same duty that they owed to R.D. Neither assumption is necessarily true. [page59]
[47] In their pleading, the plaintiffs make several allegations of negligence against Baptiste alone. And the defendants do not plead that Baptiste acted solely under Dr. Meen's direction or solely in accordance with Dr. Meen's instructions. If, for example, Baptiste treated R.D. contrary to the court's disposition under s. 37(2) of the statute and contrary to the doctor's orders, and instead convinced R.D. that she was a victim of her parents' sexual abuse, it is arguable that the defendants would be liable in tort. Counsel for the defendants' unsupported reference to "predator" and "prey" suggests that this example is a real possibility.
[48] The motion judge's other implicit assumption may not necessarily be valid either. He assumed -- as counsel for the defendants argued -- that imposing a duty of care on these defendants would result in "equal" duties being owed to the patient, R.D., and to her family - a result that on its face seems untenable. But another possibility -- at least arguable at the pleadings stage of this action --is that Syl Apps may owe a duty to R.D.'s family that differs from the duty owed to R.D. and that these different duties would not necessarily conflict. For example, although Syl Apps and Baptiste would always have a duty to act in the best interests of a child under their care, this duty would not plainly and obviously always conflict with a duty to investigate the validity of a child's complaints, to treat the child consistently with the court's orders and to attempt to reintegrate the child and her family.
[49] The second policy consideration the defendants put forward is that the court should not decide the question whether they owe a duty to the family on a case-by-case basis, but should instead categorically refuse to recognize the existence of such a duty. The defendants submit that imposing a duty on them to be mindful of a family's interests as well as a child's interests would, in virtually every case, unfairly hinder their primary obligation to treat the child under their care. Therefore, they contend that a categorical exclusion of liability is preferable to a case-by-case analysis.
[50] Again this contention may have merit. A categorical approach promotes the worthy value of certainty. But the defendants' contention remains one that in my view is best considered on a proper evidentiary record. The scheme of the statute does not contemplate a uniform approach to the treatment of children in need of protection. Instead, the powers of service providers are circumscribed by the terms of court orders regarding children in their care. The court orders are individually tailored to the needs of the particular child. A categorical approach to the question of [page60] duty seems inconsistent with this tailored, highly individualized approach to child welfare under the CFSA. There may be many cases, including the present one, where a service provider and its employees can fulfill their duty to act in the best interests of the child and at the same time can meet a court-imposed duty to the family of the child.
[51] In short, whether finding a duty of care owed to the family of a child as well as to the child herself would create the havoc or operational conflicts that concern Syl Apps and Baptiste, is better assessed not in the abstract, but on a full record.
[52] Finally, I address an important English authority considered by the motion judge. In dismissing the plaintiffs' claim against Syl Apps and Baptiste, as well as against Dr. Meen, the motion judge relied on the decision of the U.K. Court of Appeal, Civil Division, M. v. Newham London Borough Council; P. (minors) v. Bedforshire Borough Council, [1994] 2 W.L.R. 554 (C.A.). In that case, on similar facts, the court held that a child's mother could not maintain a negligence action against either the child's treating psychiatrist or against the local authority that had apprehended the child (at p. 574 W.L.R., per Sir Thomas Bingham M.R.):
The psychiatrist would in my view have recognized the mother as someone foreseeably likely to be injured if, as a result of her advice, the child were to be taken away from the mother. But the mother was not in any meaningful sense the psychiatrist's patient. The psychiatrist's duty was to act in the interests of the child, and that might very well mean acting in a way that would be adverse to the personal interests of the mother; she was concerned with those interests only to the extent that they could have an impact on the interests of the child. In this situation of potential conflict, I do not think the psychiatrist can arguably be said to have owed a duty of care to the mother [.]
Bingham M.R. went on to hold (at p. 576 W.L.R.):
I do not think the mother's claim against the local authority is legally distinguishable from her claim against the psychiatrist. It must suffer the same fate.
[53] This decision may be persuasive but it is not dispositive. In addition to the obvious fact that Newham is not binding on this court, the important differences in the statutory context that informed the decision in Newham also make it distinguishable. The motion judge dismissed the differences between Newham and this case as "subtle nuances". However, the scheme under the Children Act 1989 (U.K.), 1989, c. 41, differs significantly from the scheme under the CFSA.
[54] Although the U.K. statute contemplates a duty on the local authority to "ascertain the wishes and feelings" of the child's parents, this is arguably a weaker requirement than the equivalent [page61] provision of s. 2(2)(a) of the CFSA that parents be given an opportunity to "be heard and represented". Moreover, the U.K. statute does not seem to have an equivalent duty to that in s. 2(2)(b) that "decisions affecting the interests and rights of children and their parents are [to be] made according to clear, consistent criteria and are subject to procedural safeguards". This explicit recognition of parental "interests and rights" finds no equivalent in the U.K. statute. Newham, thus, does not stand in the way of the plaintiffs' claim going forward.
D. Conclusion
[55] Although we should be wary of foreclosing novel duty claims on a Rule 21 motion (see for example Cheltenham Estates Ltd. v. Ontario (2003), 2003 2976 (ON SC), 64 O.R. (3d) 620, [2003] O.J. No. 1339 (S.C.J.)), unquestionably in some cases courts have struck out these claims, holding that a full evidentiary record was not needed to conclude that no duty existed. Two obvious examples are the decisions of the Supreme Court of Canada in Hobart and Edwards.
[56] However, in both Hobart and Edwards, the court had to consider whether a statutory regulator operating in the public interest could at the same time owe private duties to individuals. Even at the pleadings stage, the Supreme Court could say that a regulator's overriding duty to the public was incompatible with a private law duty of care. Logically, the two obviously could not co-exist.
[57] In the present case, I do not think it is so obvious that a service provider's overriding duty to a child under its care cannot co-exist with a duty to the family of the child. The CFSA deals with the welfare of individual children and their families. Unlike the regulators in Hobart and Edwards, service providers under the CFSA have no overriding duty to the public.
[58] Therefore, in my view, we should not be too quick to conclude that a service provider and its employees can never owe a duty of care to the family of a child in need of protection. Before deciding this important question, we should have the benefit of an evidentiary record. In my opinion, at the pleadings stage, it is not plain and obvious that the plaintiffs' claim against Syl Apps and Baptiste in negligence must certainly fail.
[59] I would allow the appeal, and vary the judgment of the motion judge dated October 1, 2004, to provide that the motion of Syl Apps and Baptiste to strike out the amended statement of claim as disclosing no reasonable cause of action against them is dismissed. The parties may make written submissions on the costs of this appeal, and the appropriate disposition of the costs of [page62] the motion. Those submissions should be delivered to the court within 15 days of the release of the panel's reasons.
[60] SHARPE J.A. (dissenting):-- I respectfully disagree with my colleague Laskin J.A. that the motion judge erred in dismissing the claim against the respondents Syl Apps Secure Treatment Centre and Douglas Baptiste. For the following reasons, I would dismiss the appeal on the basis that it is plain and obvious that Syl Apps and Baptiste did not owe the appellants a duty of care capable of supporting an action in negligence for damages.
[61] As fully described by my colleague, this action arises from the apprehension of R.D. by Halton Region Children's Aid Society ("Halton CAS"). Two Family Court orders found R.D. to be a child in need of protection. The second order declared her to be a permanent Crown Ward. R.D.'s parents' appeal from that order to the Ontario Court, General Division was dismissed. R.D. subsequently reached the age of majority and never returned to the custody of her parents.
[62] The appellants, R.D.'s parents, grandmother and siblings, allege that R.D. was wrongly apprehended, wrongly diagnosed and wrongly treated while in the care of the various parties named as defendants.
[63] The appellants' main target in this action is the Halton CAS. The Halton CAS apprehended R.D. and removed her from her parents. The Halton CAS initiated the court proceedings that led to the judicial findings that R.D. was a child in need of protection and that R.D.'s best interests required removing her from the custody and care of her parents and placing her under the custody and care of the Halton CAS, first as a temporary ward and then as a Crown Ward. Under those court orders, it was the Halton CAS that assumed parental authority with respect to R.D.'s future well being, including any attempts to reintegrate R.D. with her family. The appellants' right to continue their action against the Halton CAS is unaffected by this appeal.
[64] R.D. was placed with Syl Apps, a secure treatment facility operated by the Ministry of Community and Social Services, following the court orders finding her to be a child in need of protection. Baptiste is a social worker employed by Syl Apps. Baptiste worked as a clinical case coordinator together with Dr. Richard Meen, a psychiatrist employed as Syl Apps' Clinical Director, in caring for R.D. while she was at Syl Apps. Stripped to their essentials, the appellants' claims against the respondents consists of three elements: [page63]
--they owed the appellants a duty to properly diagnose, treat and care for their daughter R.D.;
--they owed the appellants a duty to investigate and recognize that R.D. was not the victim of abuse at the hands of her parents; and
--they owed the appellants a duty to make appropriate efforts to reintegrate R.D. with her natural parents.
[65] The respondents also asserted claims in negligence against two psychiatrists, including Dr. Meen, for their allegedly negligent treatment and diagnosis of R.D. The motion judge struck out the claims against Dr. Meen and the other psychiatrist under Rule 21 on the ground that the statement of claim disclosed no cause of action against those defendants. The basis for that ruling was that it would be wrong in law to superimpose on the doctors an additional duty of care to R.D.'s family members, as such a duty could well conflict with the primary duty the doctors owed R.D. The appellants did not appeal the dismissal of their claim against the psychiatrists.
[66] R.D. is not a party to this action and the appellants do not assert a derivative claim for damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3. Accordingly, to succeed, the appellants must establish that the respondents owe them a duty of care separate and independent of any duty the respondents owed to R.D. While the statement of claim alleges "bad faith" and "gross negligence" on the part of the respondents, in his very able argument, counsel for the appellants made it clear that the appellants rest their case entirely on the proposition that the respondents owe them a common law duty of care giving rise to an action for damages in negligence.
[67] The appellants say that the duty of care arises from three sources:
--the actual course of dealings between the parties;
--the statutory duties imposed upon Syl Apps as a service provider under the Child and Family Service Act, R.S.O. 1990, c. C.11 ("CFSA"), and
--the obligations allegedly imposed upon Syl Apps by the court orders which found R.D. to be a child in need of protection.
[68] I agree with Laskin J.A. that the legal viability of the appellants' claims has to be analyzed in accordance with the test from Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.), [page64] as modified and applied by the Supreme Court of Canada in cases such as Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76 and Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, [2001] S.C.J. No. 77. The Anns test is succinctly stated in Edwards at paras. 9 and 10:
At the first stage of the Anns test, the question is whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care. The focus at this stage is on factors arising from the relationship between the plaintiff and the defendant, including broad considerations of policy. The starting point for this analysis is to determine whether there are analogous categories of cases in which proximity has previously been recognized. If no such cases exist, the question then becomes whether a new duty of care should be recognized in the circumstances. Mere foreseeability is not enough to establish a prima facie duty of care. The plaintiff must also show proximity -- that the defendant was in a close and direct relationship to him or her such that it is just to impose a duty of care in the circumstances. Factors giving rise to proximity must be grounded in the governing statute when there is one, as in the present case.
If the plaintiff is successful at the first stage of Anns such that a prima facie duty of care has been established (despite the fact that the proposed duty does not fall within an already recognized category of recovery), the second stage of the Anns test must be addressed. That question is whether there exist residual policy considerations which justify denying liability. Residual policy considerations include, among other things, the effect of recognizing that duty of care on other legal obligations, its impact on the legal system and, in a less precise but important consideration, the effect of imposing liability on society in general.
(Emphasis added)
[69] I agree with my colleague that the harm alleged by the appellants was a foreseeable consequence of any lack of care on the part of the respondents. However, I do not agree that the appellants can satisfy the balance of the Anns test. For the following reasons, I conclude that the proximity test is not satisfied as the respondents were not "in a close and direct relationship" to the appellants "such that it is just to impose a duty of care in the circumstances". Further, I conclude that, in any event, there are "residual policy considerations which justify denying liability".
The Course of Dealings between the Parties
[70] The motion judge found, correctly in my view, that the analogy between the respondents and a treating physician was determinative. As I have noted, the appellants' claims against Dr. Meen and the other psychiatrist were struck out on the basis that the duty of care the doctors owed to their patient R.D. necessarily excluded any duty to R.D.'s parents and family. The appellants did not appeal that determination and accordingly, they are now bound by it. [page65]
[71] As the motion judge observed, the proposition that a doctor who treats a child does not owe an independent duty to the child's parents is particularly apt in the context of child protection proceedings. He cited P.S. v. Batth, [1997] O.J. No. 4089, 40 O.T.C. 236 (Gen. Div.) where Molloy J. refused to find that a doctor owed a duty of care to the parent of a child who complained of sexual abuse. The motion judge also relied on the decision of the English Court of Appeal in M. v. Newham London Borough Council; P. (minors) v. Bedfordshire Borough Council, [1994] 2 W.L.R. 554 (C.A.), a child protection case where the claim of the parent of a child removed from her custody against a psychiatrist and a local authority for negligence was dismissed on the ground that neither defendant owed a duty of care to the parent.
[72] The motion judge and Laskin J.A. quote the pertinent passages from both judgments and I need not repeat those passages here. I find them to be persuasive authorities supporting the position of the respondents and I adopt the reasoning of the motion judge in applying them to bar the claim advanced against the respondents.
[73] R.D. was a vulnerable child, judicially found to be a child in need of protection. While R.D. was under their care and custody, the respondents plainly owed R.D. a duty of care. Fulfilling that duty might well have required the respondents to act contrary to the interests of R.D.'s parents. The imposition of an additional duty of care to R.D.'s parents, from whose care she had been removed, and the consequent threat of a civil action, would conflict with the respondents' primary duty to the child. To saddle them with an additional and potentially conflicting duty of care towards R.D.'s family would unduly interfere with their primary and paramount duty to look out for R.D.'s best interests.
[74] I respectfully disagree with Laskin J.A.'s assertion that, as the alleged duty owed to the parents could potentially be different than the duty owed to the child, the two would not necessarily conflict and therefore they should be allowed to co-exist. Precisely the same thing could be said of the doctor- patient relationship -- there are undoubtedly many situations where the doctor could fulfill his or her duty to the patient and, at the same time, satisfy a different duty to the parents of the patient. The difficulty with this argument is that the imposition of a duty of care does not rest upon whether or not actual conflict has been demonstrated in a particular case. In the words of Cooper, at para. 44, if the duty claimed "would potentially conflict with the [defendant's] overarching duty" (emphasis added), proximity is not made out. In my view, the duty of care pertaining to the relationship between children in need of protection and those who are charged with their care [page66] should be clearly defined on a categorical basis, rather than being left in a fluid state to be resolved on a case-by-case basis. Doctors, social workers and operators of secure treatment facilities have a difficult task to perform and they need to know where they stand. In the end, we must assess the potential for conflict and consequent harm to the primary and paramount duty owed to the child and determine whether that potential harm is sufficient to negate proximity. As I see it, the imposition of an overlapping duty to the child's parents carries with it serious risk of conflict with the duty to the child. For that reason, such a duty should not be imposed.
[75] Child protection proceedings are adversarial in nature. Few parents can willingly accept that they are unfit or incapable of looking after their own children. Parents will feel aggrieved at the loss of children removed for their own protection, and they will feel stigmatized by a judicial finding that their child is in need of protection. One can readily understand and sympathize with the appellants' distress at the loss of their child. However, once there has been a judicial finding that the child is in need of protection and must be removed from the custody of the parents, those responsible for caring for and treating the child must place the child's interests ahead of those of the parents.
[76] I add here that there is ample authority, in addition to the cases involving doctors, for the proposition that the imposition of conflicting duties of care is to be avoided. Cooper and Edwards are recent examples. In both cases, claims were dismissed at the pleading stage for failure to disclose a reasonable cause of action, and, in both cases, the defendants were found to owe duties to the public at large.
[77] Cooper involved a claim against the British Columbia Registrar of Mortgage Brokers for alleged negligence in failing to exercise his statutory powers with appropriate care to avoid or diminish a loss suffered by the plaintiff resulting from the improper actions of a mortgage broker. The Supreme Court held at para. 44 that "a duty to individual investors would potentially conflict with the Registrar's overarching duty to the public".
[78] Edwards involved a similar claim against the Law Society of Upper Canada for its alleged negligence in failing to protect a class of fraud victims from improper conduct on the part of a solicitor. The Supreme Court, at para. 6, quoted from the decision of Finlayson J.A., who decided the case when it was heard at the Ontario Court of Appeal. Finlayson J.A. concluded that imposing liability for negligence on the Law Society would be inconsistent with the Society's "public interest role": [page67]
The public is well-served by refusing to fetter the investigative powers of the Law Society with the fear of civil liability. The invocation by the plaintiffs of the "public interest" role of the Law Society seems to be misconceived as it actually works to undermine their argument. ... [T]he Law Society cannot meet this obligation if it is required to act according to a private law duty of care to specific individuals such as the appellants. The private law duty of care cannot stand alongside the Law Society's statutory mandate and hence cannot be given effect to.
The Supreme Court found at para. 11 that a duty of care did not exist in the case "[f]or substantially the reasons advanced by the Court of Appeal, per Finlayson J.A.".
[79] The conflicting duties in the case at bar are even more acute than in Cooper and Edwards because of the determination that Dr. Meen owes an exclusive duty of care to R.D. Meen, Baptiste and other Syl Apps staff members had to work together in caring for and treating R.D. I fail to see how Syl Apps could effectively manage R.D.'s care and treatment if one employee, Dr. Meen, owed a duty of care exclusively to R.D., while other employees also owed a duty of care to R.D.'s parents. It would, in my respectful opinion, place Meen, Baptiste and Syl Apps in an impossible position to saddle them with different and potentially conflicting duties to different parties. I agree with the respondents' submission that it is difficult to see how health care providers, such as secure treatment centres, could work with doctors if the former owed duties of care to persons other than patients when the latter did not. For example, R.D. might well provide Dr. Meen with information that, in his medical judgment, should not be disclosed to R.D.'s parents on the ground that disclosure would harm her or impair the doctor-patient relationship. That information could be vital to R.D.'s care, yet Dr. Meen would be unable to disclose it to Baptiste or other staff members if they were under a duty to the parents. The imposition of different duties to different parties in this context would be unworkable and would interfere with the best care and treatment for the child in need of protection.
[80] In my view, the case of B. (D.) v. Children's Aid Society of Durham Region, 1996 1067 (ON CA), [1996] O.J. No. 2502, 136 D.L.R. (4th) 297 (C.A.) is distinguishable. Liability to the parents of a child seized as a result of allegations of sexual abuse was based upon findings of bias, lack of good faith and malice in the purported exercise of statutory duties. The defendants in that case conceded that if sustained, such findings would give rise to an action in damages. This court expressly stated that in view of that concession, it was unnecessary to consider the question of whether mere negligence would be sufficient to ground liability to the parents. [page68]
[81] I conclude, therefore, that the same reasoning that leads to the conclusion that Dr. Meen owes no duty of care to the appellants applies equally to Baptiste in his capacity as a clinical case co-ordinator. If neither Meen nor Baptiste, the two individuals responsible for R.D.'s care, owe the appellants a duty of care, I see no possible basis for imposing a duty of care on Syl Apps.
Statutory Duties of the Respondents
[82] I respectfully disagree with my colleague that, in the factual context of the case as pleaded by the appellants, there is anything in the CFSA capable of supporting a duty of care to the appellants. According to s. 1(1) of CFSA: "The paramount purpose of this Act is to promote the best interests, protection and well being of children." Section 1(2) adds "additional puposes ... so long as they are consistent with the best interests, protection and well being of children" (emphasis added). As my colleague points out, those additional purposes include supporting the integrity of the family unit.
[83] The duties of service providers are defined in s. 2(2):
2(2) Service providers shall ensure,
(a) that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving; and
(b) that decisions affecting the interests and rights of children and their parents are made according to clear, consistent criteria and are subject to procedural safeguards.
[84] I respectfully disagree that these statutory provisions directing service providers to consider the interests of the parents are sufficient to ground a duty of care on the part of the respondents. The duty to ensure that parents have an opportunity to be heard and represented when decisions affecting their interests are made and the right to have those decisions made according to clear and consistent criteria are essentially procedural rights that could be more appropriately enforced through proceedings in the Family Court. I do not agree that the duty to accord procedural fairness can be elevated to the level of creating a common law duty of care to the parents in the face of the primary and potentially conflicting duty to the child. Any duty to the parents is expressly made subject to the paramount duty to children and the duties to the parents are operative only to the extent that "they are consistent with the best interests, protection and well being of children". As I consider that the imposition of overlapping and potentially conflicting duties to the parents would not [page69] be consistent with the best interests of the child, I conclude that by its very terms, the CFSA does not provide a basis for imposing a duty of care on the parents.
Duties Allegedly Arising from the Court Orders
[85] Similarly, I find unpersuasive the argument that there is anything in the terms of the court orders finding R.D. to be a child in need of protection to justify the imposistion of a duty of care towards the parents. As I read the orders, it is the Halton CAS into whose care R.D. was placed, not the respondents, that bears the responsibility for interaction and possible reintegration with the family. This is particularly apparent from the final order of Crown Wardship which attaches as a schedule a document headed "Service Plan -- Child in Care". Under the heading "Family Contact", the column listing the parties "Responsible" identifies R.D., the CAS and the family. The "Family Contact" category includes the following points:
To support positive and regular contact between [R.D.] and her family.
All visitation and contact with family members is at the discretion of [R.D.] and the Society.
Supervised contact with family members to be at the discretion of [R.D.] and the Society.
Access to be reviewed on an ongoing basis at [R.D.'s] and the Society's discretion.
[86] The responsibilities of Syl Apps are limited to the following:
--[R.D.] to continue to reside at Syl Apps Secure Treatment program.
--To plan for therapeutic intervention to ensure [R.D's] needs are being addressed upon discharge from Syl Apps.
[87] I find persuasive and adopt the motion judge's interpretation of the effect of these orders: "The two judges' orders on which the plaintiffs rely ... do not, in my view create or establish ... proximity. Those orders contemplate no more, in my view, than such communications with the parents as was necessary to ensure the best interests of the child." The division of responsibilities within the Service Plan highlights the fact that Sly Apps and, by implication, its employees, do not have a close and direct relationship to the family and do not have an obligation to act in the family's interest.
[88] I also agree with the respondents' submission that the appropriate remedy for any breach of the terms of these orders should be sought through the enforcement regime of the Family Court, not by way of a common law action for damages. [page70]
Residual Policy Considerations
[89] If I am wrong with respect to my reading of the statute and the court orders, I would hold that there are "residual policy considerations which justify denying liability". I have already referred to those policy considerations in my discussion of the issue of proximity and will not repeat them here. The fundamental point is that the imposition of a duty of care upon R.D.'s custodians to her parents would, in my view, carry with it a serious and significant interference with the capacity of the respondents to fulfill their primary and paramount duty to R.D.'s best interests.
Conclusion
[90] I acknowledge the heavy burden imposed upon the respondents to demonstrate that it is plain and obvious that the appellants' claims cannot succeed, but in my view, they have met that burden. In my view, the issue raised on this appeal does not give rise to a case-specific factual inquiry that requires a full record at trial for its proper determination. The impediment I see standing in the way of success for the appellants arises from the intrinsic nature of the relationship between the respondents and R.D. in the context of the child protection proceedings. As in Cooper and Edwards, the potential for conflicting duties negates proximity. It was not necessary in Cooper or Edwards to proceed to trial to demonstrate actual conflict on the facts of the either case. The claims against statutory regulators in Cooper and Edwards, as well as the claims against the psychiatrists in the case at bar, were all resolved at the pleadings stage. As I consider the claims against the respondents to fail for the same reason, I see no reason not to dispose of it now.
[91] Accordingly, I would dismiss the appeal.
Appeal allowed.