WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT OF APPEAL FOR ONTARIO
DATE: 20200311 DOCKET: C67040, C67041, C67042, C67043, C67044 & C67045
van Rensburg, Benotto and Harvison Young JJ.A.
BETWEEN
J.B.
Plaintiff (Appellant)
and
Her Majesty the Queen in Right of Ontario as represented by the Minister of Child and Youth Services and the Minister of Health and Long-Term Care, Children’s Aid Society of the Regional Municipality of Waterloo, Hospital for Sick Children, Gideon Koren and Joey Gareri
Defendants (Respondents)
AND BETWEEN
Y.M.
Plaintiff (Appellant)
and
Her Majesty the Queen in Right of Ontario, The Catholic Children's Aid Society of Toronto, The Hospital for Sick Children, Child Protection Worker(s) John Doe/Jane Doe, Gideon Koren, Joey Gareri, Viaguard Inc., also known as Accu-Metrics, Harvey Tenenbaum and Kyle Tsui
Defendants (Respondents)
AND BETWEEN
C.T.
Plaintiff (Appellant)
and
Hospital for Sick Children, Gideon Koren, Joey Gareri, The Children's Aid Society of the Regional Municipality of Waterloo, The Children's Aid Society of Hamilton, Child Protection Worker(s) John Doe/Jane Doe, and Her Majesty the Queen in Right of Ontario
Defendants (Respondents)
AND BETWEEN
T.W., K.B. and K.-L.B.
Plaintiffs (Appellant)
and
Her Majesty the Queen in Right of Ontario, Family Youth and Child Services of Muskoka, The Hospital for Sick Children, Gideon Koren, Joey Gareri, and Marilyn Smart
Defendants (Respondents)
AND BETWEEN
C.R., C.H., J.H., and C.H.H. by his litigation guardian, C.R.
Plaintiffs (Appellants)
and
Her Majesty the Queen in Right of Ontario, Children's Aid Society of the Regional Municipality of Waterloo, Angela Brenner, Michael Buchnea, James Woodstock, The Hospital for Sick Children, Gideon Koren, Joey Gareri, and Julia Klein
Defendants (Respondents)
AND BETWEEN
M.MD., D.W. and B.W. by his litigation guardian M.MD.
Plaintiffs (Appellants)
and
The Children's Aid Society of the Niagara Region, Child Protection Worker(s) John Doe/Jane Doe, The Hospital for Sick Children, Gideon Koren, Joey Gareri, and Her Majesty the Queen in Right of Ontario
Defendants (Respondents)
Counsel: Katherine Hensel and Kaelan Unrau, for the appellant J.B. Julie Kirkpatrick, for the appellants Y.M., C.T., T.W., C.R., and M.MD. Jeremy Glick and Estée Garfin, for the respondent Her Majesty the Queen in Right of Ontario Elizabeth Bowker and Ejona Xega, for the respondents Children’s Aid Society of the Regional Municipality of Waterloo, Catholic Children’s Aid Society of Toronto, Children’s Aid Society of Hamilton, Family Youth Child Services of Muskoka and Child Protection Worker(s) John Doe/Jane Doe
Heard: December 12, 2019
On appeal from the judgment of Justice Darla A. Wilson of the Superior Court of Justice, dated May 1, 2019, with reasons reported at 2019 ONSC 2734.
Benotto J.A.:
[1] The Motherisk Drug Testing Laboratory (“MDTL”), housed in the Hospital for Sick Children (“SickKids”) in Toronto, performed hair follicle testing for drug and alcohol abuse. It became evident that some of the test results, used in child protection proceedings, were flawed. At issue in this appeal is the potential liability of various Children’s Aid Societies (collectively, the “CAS”), the Ontario government (“Ontario”) and certain named workers arising from the unreliable test results.
[2] Family members of children who were the subject of protection proceedings sued the CAS and Ontario for damages as a result of the faulty test results. [1] Six of those claims are the subject of this appeal.
[3] The CAS and Ontario brought motions pursuant to r. 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requesting that the actions be dismissed because it was plain and obvious they could not succeed. Applying the Supreme Court of Canada’s decision in Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83, the motions judge concluded that the CAS owed a duty of care to the children, not to the parents or family members. She also dismissed the actions against Ontario on the basis it did not owe a duty of care to the parents, families or children investigated or apprehended by the CAS. The motions judge further found that while Ontario has a broad duty to the public at large in the establishment and operation of laboratories, Ontario has no liability for the MDTL testing in either its supervisory role over the CAS and the MDTL or as a result of various statutes governing the operations of hospitals and laboratories. She struck the additional actions against the CAS and Ontario after concluding that they were based on a duty of care that did not exist.
[4] For the reasons that follow, I would dismiss the appeals.
FACTS
(1) Background
[5] The MDTL conducted hair follicle testing for suspected alcohol and drug abuse. These results were used in family and criminal cases as well as in child welfare investigations and proceedings. In response to concerns that the test results were flawed, Ontario inquired into the reliability of the MDTL’s test results between 2005 and 2015. As a result, Ontario established the Motherisk Commission to perform an independent review of various cases and produce a report.
[6] In each of the appeals, the family members – at least one of whom is a biological parent of a child apprehended by the CAS – allege that the local CAS relied on flawed MDTL test results, which led to the apprehension of children and either the temporary or permanent loss of a child. [2] While the motions judge considered r. 21 motions involving seven actions, only six of those claims are the subject of this appeal (the parties appealing are collectively referred to as “the appellants”). The claims underlying the grouped appeal may be briefly summarized as follows:
(a) C.R., C.H., J.H. and C.H.H. (the “C.R. action”)
[7] The CAS apprehended two of C.R.’s biological children in 2007 and 2008 following positive MDTL testing. Subsequent attempts to return the children to C.R.’s care were unsuccessful. A final court order made the children Crown wards for the purposes of adoption.
(b) Y.M. (the “Y.M. action”)
[8] Y.M., a biological mother, underwent MDTL testing as part of child welfare proceedings that began in 2011. The test results were positive for drug and alcohol abuse. By court order, the biological father received custody of the child, with limited access by Y.M. to the child. The order was not appealed.
(c) T.W., K.B. and K.-L.B. (the “T.W. action”)
[9] T.W. is the mother of two children, who are also named plaintiffs in this action. As part of child welfare proceedings that began in 2009, T.W. underwent MDTL testing, which resulted in her having supervised access to her children. A final court order placed both children in the joint custody of T.W. and the children’s father.
(d) M.MD., D.W. and B.W. (the “M.MD. action”)
[10] M.MD. and D.W. are the parents of a child involved in a child welfare investigation between 2011 and 2012. Following MDTL testing, the CAS apprehended the child and placed him in the care of his biological father, D.W., with supervised access rights granted to M.MD.
(e) C.T. (the “C.T. action”) and J.B. (the “J.B. action”)
[11] Following MDTL testing in 2012, the CAS apprehended the biological child of C.T. and J.B., who self-identifies as a Cree man. By court order, the child became a Crown ward for the purposes of adoption, without access by either biological parent.
(2) The Claims
[12] The appellants claimed against the CAS and Ontario and sought damages for negligence, negligent investigation and supervision, negligent and/or intentional infliction of mental distress, bad faith, breach of fiduciary duty of care [3], misfeasance in public office and breaches of s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), c. 11. They base these claims on the CAS’s negligent reliance on the faulty MDTL test results to apprehend children and on Ontario’s negligent failure to prevent the use of faulty test results, as overseer of the CAS, SickKids and the MDTL.
(3) Decision in the Superior Court of Justice
[13] The CAS and Ontario brought r. 21 motions to strike the claims against them, with the exception of the claims brought by the children apprehended as a result of protection proceedings (K.B., K.L.-B. and B.W., collectively the “child-plaintiffs”). The motions judge determined that the family members’ claims disclosed no reasonable cause of action and were bound to fail. Relying on r. 21, she dismissed the actions against the CAS and Ontario, with the exception of the child-plaintiffs’ claims against the CAS.
[14] The child-plaintiffs’ actions against the CAS, as well as all of the plaintiffs’ (the appellants and the child-plaintiffs) claims against SickKids and the director and the manager of the MDTL, continue.
[15] With respect to the negligence claims against the CAS, the motions judge relied on Syl Apps to find that the CAS does not owe a duty of care to family members (i.e., parents and siblings), because it owes a duty to the subject-children in child protection investigations. In that case, Abella J. found that a treatment centre and its employees did not owe a duty of care to the family of a child apprehended by the CAS because the purpose of the Child and Family Services Act, R.S.O. 1990, c. C.11 is to “promote the best interests, protection and well-being of children”: R.S.O. 1990, c. C.11, s. 1(1) (“CFSA”). [4] As Abella J. explained, if the CAS also owed a duty to family members, there would be “a genuine potential for ‘serious and significant’ conflict with the service providers’ transcendent statutory duty to promote the best interests … of the children in their care”: Syl Apps, at para. 41.
[16] On the issue of Ontario’s liability for negligence, the motions judge concluded that Ontario did not owe a private law duty of care either to the parents or siblings of children involved in child welfare proceedings, or to the children subject to child protection investigations. As the motions judge explained, while Ontario supervises the CAS, it cannot owe a private law duty of care to the children because it is not directly involved in the CAS’s investigations. By virtue of its supervisory role, Ontario is too far removed from the daily conduct of the CAS. Therefore, a relationship of proximity does not exist between Ontario and the children subject to child welfare investigations or proceedings, nor does a private law duty of care arise under statute.
[17] Regarding the other claims against Ontario, the motions judge found that Ontario does not owe a private law duty of care to a particular individual arising from the operation of hospitals or laboratories under the Public Hospitals Act, R.S.O. 1990, c. P.40 (“PHA”) or the Laboratory and Specimen Collection Centre Licensing Act, R.S.O. 1990, c. L.1 (“LSCCLA”). While Ontario owes a duty to the public at large, there is no relationship of proximity that would ground a duty of care to the appellants in these cases. Moreover, the LSCCLA provides immunity to Ontario for any act done in good faith in the execution of its duties, including actions grounded in negligence. On this basis, the motions judge struck the appellants’ claims against Ontario for the negligent supervision of the MDTL.
[18] The motions judge found that Ontario does not owe a private law duty of care by virtue of striking the Motherisk Commission. The decision to establish the Motherisk Commission was discretionary and there were no statutory requirements for Ontario to approve or agree with the policies and procedures the Motherisk Commission developed.
[19] The motions judge further found that Ontario was not responsible for the alleged Charter breaches, in part because many of the samples tested by the MDTL in the relevant cases were obtained pursuant to a court order. A Charter-based objection should have been made at the time of the order or the parties should have appealed the order. In substance, the s. 7 Charter claims contain allegations of negligence dressed up as Charter breaches. These claims disclose no reasonable cause of action.
[20] With respect to the additional claims by J.B., the motions judge rejected the fiduciary duty claim and found that any duty under s. 35(1) of the Constitution Act, 1982 was owed to the child, not to the parent, for the reasons articulated in Syl Apps.
ISSUES ON APPEAL
[21] The appellants allege that the motions judge erred generally by determining that it was plain and obvious that there was no reasonable cause of action against the CAS and/or Ontario. They also allege that she erred specifically by: (i) not conducting a thorough analysis according to the test set out in Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 W.L.R. 1024 (U.K. H.L.), (subsequently modified and applied by the Supreme Court in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537) (the “Anns test”); (ii) rejecting the claim for bad faith; (iii) striking the appellants’ Charter claims; and (iv) determining that certain claims were an abuse of process.
[22] In addition, J.B. alleges that the motions judge erred in dismissing the claims for breach of fiduciary duty and breach of s.35(1) of the Constitution Act, 1982.
ANALYSIS
[23] I address these issues in the following order:
1. Rule 21 test to determine an issue before trial;
2. Negligence claims against the CAS;
3. Negligence claims against Ontario;
4. The allegation of bad faith;
5. Charter claims against the CAS and Ontario;
6. Additional claims raised by J.B.:
a. Breach of fiduciary duty;
b. Section 35(1) of the Constitution Act, 1982.
(1) Rule 21 test to determine an issue before trial
[24] On a r. 21 motion, a claim will be struck if it is plain and obvious that it has no prospect of success. In this case, if the facts pleaded – which are presumed to be true – are not sufficient to give rise to a duty of care, then the claims have no reasonable cause of action.
[25] At the heart of r. 21 are the mutual aims of judicial economy and correctness. The power to strike claims that have no chance of success is an important tool that reduces the time and cost of litigation and frees up the court’s time to resolve meritorious disputes. However, the court does not exercise this power lightly. Judges are ever-mindful that the law is fluid, evolving over time so that “actions that yesterday were deemed hopeless may tomorrow succeed”: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 21.
[26] Bearing these principles in mind, the court adopts a generous approach in its analysis of a claim’s reasonable prospect of success, “err[ing] on the side of permitting a novel but arguable claim to proceed to trial”: Imperial Tobacco, at para. 21. It is therefore essential that the facts underlying the claims are clearly pleaded so that the court may properly perform this exercise: Imperial Tobacco, at para. 22.
[27] Even on the generous approach, the motions judge correctly struck the appellants’ claims for failure to disclose a reasonable cause of action. In reaching this determination, I approach the issues raised on appeal following the framework the Supreme Court established when it articulated the purpose and extent of r. 21 in Imperial Tobacco, at para. 21:
The court must … 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.
(2) Negligence claims against the CAS
[28] The appellants claim that the CAS was negligent in relying on faulty MDTL test results and, as a result, they suffered damages when the CAS apprehended their children. The appellants base their claim on the premise that the CAS and Ontario owe a duty of care to the parents of children involved in child protection investigations and proceedings.
[29] However, both the statutory framework and jurisprudence governing child welfare proceedings make it clear that the negligence claims against the CAS cannot succeed.
[30] The purpose of the CFSA (and of the new CYFSA) is to “promote the best interests, protection and well being of children”: s. 1(1). Indeed, the CFSA requires the CAS to protect children. Section 15(3) enumerates the functions of the CAS and provides:
Functions of society
(3) The functions of a children’s aid society are to,
(a) investigate allegations or evidence that children may be in need of protection;
(b) protect children where necessary;
(c) provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children;
(d) provide care for children assigned or committed to its care under this Act;
(e) supervise children assigned to its supervision under this Act;
(f) place children for adoption under Part VII; and
(g) perform any other duties given to it by this or any other Act. [Emphasis added. Citations omitted.]
[31] It is clear that the CAS has a statutory duty to protect children. As part of this duty, the CAS must investigate allegations or evidence that children may be in need of protection. If the CAS also owed a duty to the child’s parents, that duty would directly conflict with its overarching duty to the child. Such a conflict is untenable – a proposition for which there is explicit judicial support.
[32] Syl Apps is the leading authority on the duty of care in child protection matters. In Syl Apps, the CAS apprehended a 14-year-old child and placed her in a foster home after she wrote a story at school alleging that her parents had physically and sexually abused her. No criminal charges were laid following a police investigation. After a subsequent transfer from foster care to several psychiatric facilities, the court found the girl to be a child in need of protection and ordered temporary wardship. Shortly thereafter, the court, with the girl’s consent, placed her in the care of a treatment centre and, eventually, made her a permanent ward of the Crown. Over three years later, some family members claimed against the CAS, the treatment centre and several of their respective employees for negligence and sought $40,000,000 in damages: Syl Apps, at paras. 3-12.
[33] The family’s claim turned on their assertion that the treatment centre had treated the child “as if her parents had physically and sexually abused her, that this was negligent conduct, and that the negligence caused [her] not to return to her family, thereby depriving the family of a relationship with her”: Syl Apps, at para. 12.
[34] The motion judge struck the action for failure to disclose a reasonable cause of action. In doing so, he found that the treatment centre, the lawyer, various psychiatrists and the social worker involved in the child’s care owed a duty of care only to the child and not to the child’s family: Syl Apps, at paras. 14-16.
[35] The family members appealed the order as it related to the treatment centre and social worker to this court. The appeal was allowed in a split decision. However, the Supreme Court reversed this court’s decision and adopted Sharpe J.A.’s dissenting reasons in concluding that the motion judge correctly struck the action as disclosing no reasonable cause of action.
[36] Abella J., writing for the court, agreed that the potential for conflicting duties under child protection legislation negated a duty of care to the child’s parents or family members: Syl Apps, at para. 20. Furthermore, she reiterated that “to recognize such a legal duty to the family of a child in [the treatment centre’s] care, would pose a real risk that a secure treatment centre and its employees would have to compromise their overriding duty to the child”: Syl Apps, at para. 20.
[37] On this basis, Abella J. agreed with the motion judge that it was plain and obvious the action had no possibility of success, explaining at paras. 20-21:
For the reasons that follow, I agree with the motions judge and with Sharpe J.A. that to recognize such a legal duty to the family of a child in their care, would pose a real risk that a secure treatment centre and its employees would have to compromise their overriding duty to the child. I also agree with Sharpe J.A. that “the duty of care pertaining to the relationship between children in need of protection and those who are charged with their care 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” (para. 74).
I would not, as a result, recognize such a new legal duty. It follows that, in my view it is “plain and obvious” that the statement of claim discloses no reasonable cause of action against these defendants.
[38] In the present appeal, the appellants submit that the law is not settled on whether the same principles apply to the CAS and Ontario under child protection legislation. To support this view, the appellants suggest that Syl Apps applies to the limited, fact-specific context of the duty of care owed by a treatment centre and its employees.
[39] I do not agree. The underlying ratio of Syl Apps is that where entities exist to protect and provide for children’s best interests, to avoid conflicting duties, they must only owe a duty of care to the children they serve. On this point, there is no principled reason to differentiate between a treatment centre and the CAS. The potential for a conflict between the child’s best interests and parental expectations was crucial to the Supreme Court’s analysis in Syl Apps – the nature of the treatment centre and the allegations at issue were not determinative in this regard: Syl Apps, at para. 41. As Abella J. explained, when children become Crown wards or are placed in the care of the CAS, those entities assume a parent’s rights and responsibilities for that child’s care: Syl Apps, at para. 42; CFSA, s. 63(1). Consequently, this duty “creates an inherently adversarial relationship between parents and the state”: Syl Apps, at para. 42.
[40] In this context, a child’s best interests must take precedence. Countervailing duties could potentially force service providers to choose between the child’s best interests and “parental expectations which may be unrealistic, unreasonable or unrealizable on the other”: Syl Apps, at para. 50. Although the interests of children and parents may sometimes align, as Abella J. clarified, that does not reduce “the concern that in many, if not most of the cases, conflict is inevitable”: Syl Apps, at para. 43. Such a conflict between the interests of children and their parents would undermine and impede the CAS’s statutory obligation to act in the child’s best interests by prioritizing “the family’s satisfaction in the long term”: Syl Apps, at para. 43. As Abella J. cautioned, this tension would doubtless result in a “chilling effect on social workers, who may hesitate to act in … the child’s best interests” and invite “litigation – from the family”: Syl Apps, at para. 50.
[41] Furthermore, I do not agree with the appellants’ distinction between the child welfare investigation stage and proceeding stage (i.e., pre- and post-apprehension) to argue that the courts have not determined whether the CAS owes a duty of care to parents at the investigation stage. Syl Apps is clear: the duty at all stages is to the child.
[42] The law is settled in this regard. First, the CFSA requires the CAS to “investigate allegations … that children may be in need of protection” and to “protect children where necessary”: CFSA, s. 15(3)(a)(b). Second, this court has already held that the CAS does not owe parents a duty of care either during the investigation or proceeding stage; holding otherwise would directly conflict with its statutory duty to act in the child’s best interests: H.A.G. v. Family and Children’s Services Niagara, 2017 ONCA 861, leave to appeal refused, [2018] S.C.C.A. No. 181. In brief reasons, the court held as follows, at paras. 2 and 3:
Relying upon Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83, the motion judge concluded that the respondents’ sole duty of care was to the children, and not the parents. As such, the claim in negligence could not proceed. The appellant maintains that the motion judge erred by failing to distinguish Syl Apps from this case, including on the basis that the respondents’ negligent actions at least partially pre-dated the apprehension of the children.
We see no error in the motion judge’s approach or the conclusion reached. Both in the lead up to and following apprehension of the children, the respondents’ duty of care was to the children and not the parents. We agree with the motion judge that in the circumstances of this case there could be no duty of care to the appellant because of the clear conflict that would arise when considering the respondents’ duties to the children. [Emphasis added.]
[43] The appellants submit that H.A.G. is not jurisprudential because it is an “endorsement”. I disagree. The decision is styled as “Reasons for Decision”. In any event, as this court has held, “the weight to be given to an endorsement will vary widely”, depending on whether “the general principles of law have already been established” or if the court of first instance has already conducted “the jurisprudential heavy lifting”: R. v. Martin, 2016 ONCA 840, 134 O.R. (3d) 781, at para. 19. It is clear that the court in H.A.G., considered Syl Apps to have settled the law: the CAS owes a duty of care to the children, not the parents, “[b]oth in the lead up to and following apprehension of the children”: H.A.G., at para. 3.
[44] In addition, the appellants argue that the trial judge erred by evaluating their claim “in an evidentiary vacuum”. But as the Supreme Court made clear, there is no need for a case-specific factual inquiry where the duty of care does not exist: Syl Apps, at para. 20. In Syl Apps, Abella J. agreed with the dissenting reasons of Sharpe J.A. and explained that it was desirable to define the duty of care “pertaining to the relationship between children in need of protection and those who are charged with their care … on a categorical basis, rather than being left in a fluid state to be resolved on a case-by-case basis”: Syl Apps, at para. 20. The motions judge properly struck this claim for failure to disclose a reasonable cause of action.
(3) Negligence claims against Ontario
[45] The appellants make several negligence-based claims against Ontario. First, they claim that Ontario was negligent in its supervisory role of the CAS. Second, one of the appellants, J.B., alleges that Ontario was negligent in its supervisory role of SickKids and the MDTL. Finally, they claim that Ontario owed a private law duty of care to the child-plaintiffs to ensure that the CAS obtained reliable evidence. They premise these allegations on the duty of care they assert Ontario owes them.
[46] With respect to the first allegation, this claim cannot succeed for the same reasons that the CAS does not owe a duty of care to parents or family members. I agree with the motions judge that Ontario’s duties arising from the CFSA are “general duties to the public at large”. Given the untenable conflict of interest that would arise if Ontario owed the appellants a duty of care, and the appellants’ failure to plead the necessary facts to establish a relationship previously recognized as giving rise to a prima facie duty of care, I accept the motions judge’s conclusion that Ontario does not owe the appellants a private law duty of care: see also Taylor v. Canada (Attorney General), 2012 ONCA 479, 111 O.R. (3d) 161, at para. 73. The motions judge appropriately struck this claim for failure to disclose a reasonable cause of action.
[47] The second claim also cannot succeed. The appellant, J.B., points to the PHA and the LSCCLA to claim that Ontario breached its duty of care by failing to determine that the MDTL tests were unreliable and should not be used in child welfare proceedings. Neither statute gives rise to duties to individuals.
[48] The PHA requires that the Minister act in the public interest. The statutory framework of the PHA makes it clear that there is no proximity between Ontario and the parents of children that would give rise to a duty of care. The PHA does not give rise to a duty of care to parents. The Divisional Court affirmed this principle in Mitchell Estate v. Ontario, 2005, 71 O.R. (3d) 571 (Div. Ct.), at para. 30:
The overall scheme of the relevant Acts confers a mandate on the Minister of Health to act in the broader public interest and does not create a duty of care to a particular patient.
[49] Likewise, the claim pursuant to the LSCCLA also fails for several reasons. First, the LSCCLA does not apply to the services provided by the MDTL. The LSCCLA regulates clinical laboratories. The MDTL was a forensic laboratory. At the relevant time, Ontario did not provide accreditation for or regulate labs that carried out forensic tests. In this respect, Ontario’s regulatory powers do not give rise to a duty of care to the appellants.
[50] More importantly, a relationship of proximity between Ontario and the appellants does not arise from the LSCCLA. Pursuant to the LSCCLA, the Minister owes a general duty to the public, which does not create a private law duty of care. Moreover, it bestows on the Director various powers related to licencing laboratories for the benefit of the public at large. Adopting Sharpe J.A.’s clarification on this point, the Supreme Court agreed that exercising discretionary powers in the public interest does not translate into a private law duty of care: Imperial Tobacco, at para. 50, citing Eliopoulos Estate v. Ontario (Minister of Health and Long-Term Care), 2006, 82 O.R. (3d) 321 (C.A.), at para. 30, leave to appeal refused, [2006] S.C.C.A. No. 514.
[51] The LSCCLA provides immunity from personal liability to “the Minister or the Director or anyone acting under the authority of the Director for any act done in good faith in the execution or intended execution of his or her duty or for any alleged neglect or default in the execution in good faith of [that] duty”: LSCCLA, s. 8. For these reasons, the motions judge correctly found that it was plain and obvious that the appellants’ claim against Ontario for negligent supervision of the MDTL had no chance of success.
[52] I do not agree that Ontario owes a private law duty of care to the child-plaintiffs. The appellants brought this claim against two Ministers with responsibility for administering the CFSA, the PHA and the LSCCLA. They allege that the failure of Ontario to provide appropriate oversight was “more striking” following the report from the Goudge Inquiry [5], which highlighted the damage caused by relying on flawed forensic evidence.
[53] I agree with the motions judge that Ontario does not owe a private law duty of care to the children who were the subject of the CAS’s investigations. A statutory duty of care does not arise under the CFSA. In this case there is no relationship of proximity between Ontario and the child-plaintiffs sufficient to establish a duty of care. As already discussed, Ontario owes a general duty to the public and is too far removed from the daily operations of the CAS in child protection matters to give rise to a duty of care. The absence of direct involvement in the CAS’s affairs “weakens the nexus” between Ontario and the child-plaintiffs: see also Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 70.
[54] Furthermore, the appellants’ claim fails at both stages of the Anns test. At the first stage of the Anns test, the court considers whether “the claim advanced describes a relationship that is the same as or analogous to a relationship that courts have previously recognized as giving rise to a prima facie duty of care”: Taylor, at para. 73. If there is a prima facie duty of care, the court will proceed to the next stage of the analysis and consider whether there are “residual policy considerations which justify denying liability”: Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, at para. 10. A duty of care does not exist – finding otherwise would create a conflict of interest between the CAS’s statutory duties to the child and parental expectations. This same residual policy concern makes “the imposition of a duty of care unwise”: Syl Apps, at para. 31.
[55] The motions judge did not err in striking this claim after applying the Anns test and determining that, in this case, there was no relationship of proximity from which a duty of care could arise. The appellants’ reliance on Ontario’s response to the Goudge Inquiry does not alter this conclusion.
(4) The allegation of bad faith
[56] Bad faith is not a stand-alone tort. As the Supreme Court clarified, “The law does not recognize a stand-alone action for bad faith”: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 78. Moreover, the Supreme Court determined that “the allegation of bad faith, as pleaded, is bootstrapped to the duty of care claim, and cannot survive on its own when the plea of negligence is struck”: at para. 77. The same analysis applies here.
[57] An allegation of bad faith cannot alter the duty of care analysis when the claim would create a genuine conflict of interest. In this regard, the appellants are conflating the duty of care, which is necessary for the claim to succeed, with the standard of care, which may engage concepts of bad faith. Here, there is no duty of care to allow the consideration of bad faith. The motions judge was correct to strike the claim.
(5) Charter claims against the CAS and Ontario
[58] The appellants allege that the CAS and Ontario breached their s. 7 Charter rights by obtaining test results from the MDTL, which did not meet the requisite standards, and then using the unreliable test results to apprehend children.
[59] Further, the appellants allege that Ontario breached their s. 7 Charter rights by permitting the CAS to demand bodily samples for testing, use those unreliable test results in child protection proceedings and thereby cause consequent delay. In addition, the appellants claim that Ontario infringed their s. 7 Charter rights through establishing the Motherisk Commission pursuant to the Public Inquiries Act, R.S.O. 1990, c. P.41 and in the subsequent policies and procedures it adopted.
[60] The basis for these claims - in my view - is also in negligence. As the motions judge noted, allegations of negligence cannot be “dressed up as Charter breaches”. The motions judge did not err in striking these claims for failure to disclose a reasonable cause of action.
[61] I adopt the reasoning of the British Columbia Court of Appeal in Quinn v. British Columbia, 2018 BCCA 320, 15 B.C.L.R. (6th) 1, leave to appeal refused, [2018] S.C.C.A. No. 463. In Quinn, the parents claimed that the Director of Child, Family and Community Services violated their s. 7 Charter rights by temporarily removing their children from the family home on the basis of an anonymous report that one of the children alleged that the parents were abusive. The children were eventually returned to the parents’ custody: Quinn, at paras. 9-15. The parents also alleged that the Province of British Columbia breached its fiduciary duty and the duty of care. The British Columbia Court of Appeal determined that the action had no possible chance of success, primarily because of the Supreme Court’s decision in Syl Apps that there is no private law duty of care owed to parents in child apprehension cases. The British Columbia Court of Appeal elaborated on this point, at para. 64:
I agree with the Province that these types of allegations have no reasonable prospect of success in light of the reasoning in Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38. In that decision, Abella J., writing for the Court, rejected the imposition of a private law duty of care on the [treatment centre] … and one of its social workers in light of an allegation by the parents that the Centre and the social worker had been negligent in treating the child, which caused the child not to be returned to them. Justice Abella reasoned that a “compelling policy reason for refusing to find proximity” between the parents and the Centre was the overriding statutory focus on the best interests of the child:
[41] The deciding factor for me, as in Cooper and Edwards, is the potential for conflicting duties: imposing a duty of care on the relationship between the family of a child in care and that child’s court-ordered service providers creates a genuine potential for “serious and significant” conflict with the service providers’ transcendent statutory duty to promote the best interests, protection and well-being of the children in their care.
[62] As in Quinn, here the appellants’ Charter claims are effectively a cloaked constitutional challenge to the CFSA and the child protection scheme: Quinn, at para. 68. The CFSA explicitly mandates the CAS to protect children. As already explained, the CAS only owes a statutory duty of care to the child, while Ontario owes no duty of care to either the children or family members involved in child protection proceedings. Regrettably, those statutory duties may require investigating the parents and addressing allegations of drug and alcohol use.
[63] The Charter claim against Ontario for establishing the Motherisk Commission cannot succeed. Establishing the Motherisk Commission did not deprive the appellants of life, liberty or security of the person. Quite the opposite. Ontario created the Motherisk Commission to provide an array of assistance and support to individuals who were affected by the flawed MDTL test results: Order in Council, Motherisk Commission: 4/2016 (January 13, 2016). In addition, Ontario had no obligation to prescribe matters of policy and procedure for the Motherisk Commission. The Motherisk Commission exercised its discretion to implement policies and procedures that would achieve its objectives. Section 7 of the Charter does not obligate it to establish specific policies and procedures. In exercising its discretion, the Motherisk Commission had considerable latitude to adopt the approach it viewed as the most effective and efficient way to fulfil its mandate.
[64] I agree with the motions judge that it was plain and obvious the Charter claims would not succeed.
[65] The appellants raise on appeal for the first time that the CAS also breached their s. 8 Charter rights by taking their hair for testing, which they say constituted an unreasonable search and seizure. It is inappropriate for this court to opine on issues not raised at first instance and without the benefit of the motions judge’s analysis: R. v. Roach, 2009 ONCA 156, 246 O.A.C. 96, at para. 6; Canadian Civil Liberties Association v. Canada, 2019 ONCA 243, at paras. 148-49, leave to appeal granted, [2019] S.C.C.A. No. 96.
(6) Additional claims raised by J.B.
[66] J.B. is the father of a child apprehended by the Family and Children’s Services of the Waterloo Region (the “CAS Waterloo”). C.T. is the child’s mother. Following MDTL hair follicle testing, the CAS Waterloo conducted an investigation and apprehended their child. The trial judge made the child a Crown ward without access for the purposes of adoption. The parents appealed the no access order and the first-instance appeal judge reversed the trial judge’s order. The CAS Waterloo appealed that decision to this court, which allowed the appeal and reinstated the trial judge’s no access order: Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, leave to appeal refused, [2018] S.C.C.A. No. 51.
[67] In addition to the issues the appellants raise on appeal (addressed above), J.B. also claims against the CAS Waterloo and Ontario on the basis of breach of fiduciary duty and for breach of treaty rights enshrined in s. 35(1) of the Constitution Act, 1982.
[68] With respect to breach of fiduciary duty, J.B. submits that the CAS Waterloo owes him a fiduciary duty as an Indigenous parent because of the agency’s role in administering a child welfare system that has caused “tremendous intergenerational, collective, and individual harms to Indigenous children, families, and communities.” He refers to the Final Report of the Truth and Reconciliation Commission (“TRC”) [6] and the National Inquiry into Missing and Murdered Indigenous Women and Girls (“MMIWG”) [7] to demonstrate the harms the child protection system has caused to Indigenous children and families and the role of the CAS Waterloo (and the CAS generally) in causing these harms. J.B. submits that these harms give rise to a particular fiduciary duty of the CAS to Indigenous families.
[69] J.B. further submits that, as an Indigenous person, Ontario had a “specific, fiduciary duty to him to ensure that measures taken in child welfare proceeding[s] … were procedurally fair … in accordance with the requirements of the CFSA.” In his pleadings, he alleged that the CAS Waterloo violated s. 37(4) of the CFSA and infringed s. 35(1) of the Constitution Act, 1982 by “giving no consideration to the role of extended family in Cree traditions, laws, customs and practices relating to child care.”
(a) Breach of fiduciary duty
[70] The Crown owes a special responsibility to Indigenous people. However, here, there are no facts pleaded that would satisfy a claim for breach of fiduciary duty. J.B. did not plead any facts that could establish a fiduciary duty existed – he simply asserted that it did. Moreover, J.B. refers to Guerin v. The Queen, [1984] 2 S.C.R. 335 to argue that the law governing the Crown’s fiduciary duty to Indigenous peoples is an emerging area, and that the special considerations in this case distinguish it from other decisions where the court held that there is no fiduciary duty to parents in the context of child protection proceedings. However, Guerin does not support this argument.
[71] At issue in Guerin was the nature of “Indian title [to land] coupled with the discretion vested in the Crown”, which gave rise to a fiduciary obligation: at p. 386. Furthermore, in the present appeal, the CFSA does not create a duty of loyalty to family members, but rather to the apprehended children. The same reasoning in Syl Apps regarding the duty of care and the potential for a conflict of interest apply here to bar a breach of fiduciary duty. There could, under these circumstances, be no undertaking on the part of the CAS Waterloo or Ontario to act in the best interests of J.B.
[72] The appellants’ reliance on the TRC and the MMIWG raises the issue that the fiduciary duty ought to exist to repair past wrongs. However, the Supreme Court rejected these “remedy based fiduciary relationships” in Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574. As La Forest J., writing for the majority, explained, at p. 652:
In my view, this third use of the term fiduciary, used as a conclusion to justify a result, reads equity backwards. It is a misuse of the term.
[73] The motions judge correctly held that the claim against the CAS Waterloo and Ontario had no chance of success because there is no fiduciary duty between them and Indigenous parents or families – any duty would be owed to the Indigenous child.
(b) Section 35(1) of the Constitution Act, 1982
[74] I do not accept J.B.’s submission that the motions judge erred in concluding that it was plain and obvious the CAS Waterloo and Ontario owed no duty to Indigenous parents pursuant to s. 35(1) of the Constitution Act, 1982.
[75] Section 35(1) of the Constitution Act, 1982 provides that the “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Moreover, s. 37(4) of the CFSA provides:
Where child an Indian or native person
Where a person is directed in this Part to make an order or determination in the best interests of a child and the child is an Indian or native person, the person shall take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity. [Citations omitted.]
[76] In the context of child protection proceedings, any duty flowing from these provisions is owed to the child, not the parent, by virtue of the Supreme Court’s decision in Syl Apps. This claim has no possibility of success.
(c) Abuse of process
[77] The appellants claim that the motion judge erred in concluding that their claims were a collateral attack on court orders and an abuse of process. My conclusions above are dispositive of the appeal. It is therefore unnecessary to address the abuse of process claims.
CONCLUSION
[78] I agree with the decision of the motions judge that it is plain and obvious that the appellants’ claims against the CASs and against Ontario cannot succeed for failure to disclose a reasonable cause of action.
[79] I would dismiss the appeals.
[80] No costs were requested, and I would order none.
Released: March 11, 2020
“MLB” “M.L. Benotto J.A.” “I agree K. van Rensburg J.A.” “I agree A. Harvison Young J.A.”
[1] There were other defendants as well who are not part of this appeal.
[2] Some of the actions included children as plaintiffs. At present, the actions that involve child-plaintiffs are proceeding against the CAS. In addition, the appellants’ and the child-plaintiffs’ claims against SickKids and the MDTL are also proceeding.
[3] The appellants, other than J.B., did not pursue this claim on appeal.
[4] The Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1 (“CYFSA”) was proclaimed into force on April 30, 2018. For the purpose of this decision, I refer to the CFSA, which was in force during the relevant period of time at issue in this appeal. The content of the relevant sections in both the CFSA and CYFSA remain the same. While I rely on the CFSA, my reasons with respect to duty of care apply to the CYFSA as well.
[5] Ontario. Inquiry into Pediatric Forensic Pathology in Ontario. The Report of the Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen’s Printer for Ontario, 2008).
[6] Canada. Truth and Reconciliation Commission. The Final Report of the Truth and Reconciliation Commission of Canada, vol. 5, Canada’s Residential Schools: The Legacy (Montreal: McGill-Queen’s University Press, 2015).
[7] Canada. National Inquiry into Missing and Murdered Indigenous Women and Girls. Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (Ottawa: Government of Canada, 2018).
