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.

WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction.

The court released its judgment in this matter to counsel and the appellant only, on May 8, 2020, after an in camera hearing. The court has received submissions from counsel who reviewed the unredacted judgment. The court has determined that the attached redacted version of the reasons should be released to the public. The full reasons along with the rest of the Court of Appeal file remain under seal.

Court of Appeal for Ontario

Date: 20200623 Docket: C67498

Before: Lauwers, Hourigan and Fairburn JJ.A.

Between:

M.E. Plaintiffs (Appellant)

And:

Her Majesty the Queen in Right of Ontario, Children’s Aid Society of Toronto and Durham Children’s Aid Society Defendants (Respondents)

Counsel: The appellant, acting in person Domenico Polla, for the respondent Her Majesty the Queen in Right of Ontario Scott C. Hutchison, for the respondents Children’s Aid Society of Toronto, Giovanna Asaro and Ada Lee (contempt appeal) Giovanna Asaro, for the respondent Children’s Aid Society of Toronto (summary judgment appeal)

Heard: February 28, 2020

On appeal from the orders of Justice Paul B. Schabas of the Superior Court of Justice, dated September 23, 2019, with reasons reported at 2019 ONSC 5138 and 2019 ONSC 5141.

Reasons for Decision

[1] The appellant started the underlying action in 2016. It revolves largely around the disclosure of certain records concerning the appellant by the Children’s Aid Society of Toronto. The statement of claim makes a number of claims, and the respondents moved for summary judgment. The appellant also brought a motion for contempt.

[2] The factual context starts with the appellant’s sexual abuse as a child, which the motion judge characterized as “an historical sexual assault on her by [a relative].” The [relative] was convicted of two counts of sexual assault, one count of sexual interference, and sentenced.

[3] Previously, when the appellant was a ward of the Society, she was sentenced for offences under the Young Offenders Act, R.S.C. 1985, c. Y-1. The Society’s file contained a pre-disposition report prepared for the sentencing, which the Society had received in its capacity as parent.

[4] In 2013, the appellant requested the Society send information to the Criminal Injuries Compensation Board to support her claim under the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24 for compensation for the sexual assault. She later discovered that the file the Society had disclosed to the Board contained the sensitive pre-disposition report and information about her youth criminal offences.

[5] The motion judge observed that the appellant’s “real grievance” is that she was unaware that the pre-disposition report was in the Society’s file “and is upset that it was disclosed, along with the fact that she faced youth criminal justice proceedings as a teenager.” The appellant gave us the same impression.

[6] The appellant believes that she is representing the interests of many people who are similarly situated and whose records are too accessible and disclosable.

[7] The appellant’s distress at this disclosure sets the background for the two appeals before this court. The first relates to the motion judge’s dismissal of the appellant’s action in its entirety, with reasons reported at 2019 ONSC 5138. The second relates to the motion judge’s dismissal of the appellant’s contempt motion against the Society, Giovanna Asaro, and Ada Lee, with reasons reported at 2019 ONSC 5141.

[8] We address the contempt appeal before the summary judgment appeal.

Jurisdiction over the Contempt Appeal

[9] Counsel for the respondents in the contempt appeal argued that the order dismissing the appellant’s contempt motion was interlocutory and could only be appealed to the Divisional Court, with leave, not to this court: The Catalyst Capital Group Inc. v. Moyse, 2015 ONCA 784, 127 O.R. (3d) 625, at para. 12; Chirico v. Szalas, 2016 ONCA 586, 132 O.R. (3d) 738, at paras. 43-48.

[10] We disagree. The appellant’s motion for contempt and the respondents’ motion to dismiss the action were heard on the same day by the same judge, and the reasons in both were released on the same day. These are not separate proceedings. The motion judge himself recognized in the contempt reasons that: “The motion arises out of, and overlaps with, relief sought by the plaintiff in this action.” The appeals are intimately related and are better viewed as one proceeding that was dismissed by the motion judge in a judgment that is final and appealable to this court.

The Contempt Appeal

[11] On the contempt appeal, the appellant repeated the arguments she made to the motion judge. He dismissed the contempt motion, on the basis that to be in contempt of court, a person or institution must disobey a court order: Rogacki v. Belz (2003), 67 O.R. (3d) 330 (C.A.), at para. 17. There were no court orders disobeyed in this case.

[12] Before he dismissed the contempt motion, the motion judge considered each of the appellant’s three contempt complaints carefully. The first complaint is that the Society transmitted parts of her file to the Board in 2013, at the appellant’s request, in order to support her claim for compensation for the sexual assaults she suffered.

[13] The motion judge observed that the particular document to which the appellant objects most strongly, the pre-disposition report, contained the very information the appellant needed in order to be successful in her claim before the Board. In his view, the Society’s conduct could not be characterized as contempt on its part but is better understood as an effort to be helpful to the appellant. The motion judge also found that the Society’s action in sending her file to the appellant’s paralegal was similarly not contemptuous.

[14] The appellant’s second complaint is that Ms. Asaro and Ms. Lee were contemptuous in serving the Society’s statement of defence in the action underlying this appeal on her children because it referred to historical proceedings involving the appellant under the Young Offenders Act. By serving the statement of defence in this action, the appellant argues that the Society contemptuously provided the private information about the appellant’s past to her adult children, who are also named as plaintiffs.

[15] The service of the statement of defence on the plaintiffs was not contemptuous but was obligatory under r. 16 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The motion judge noted that the court proceedings are subject to a sealing order to protect the appellant’s privacy.

[16] The appellant’s third contempt complaint is that Ms. Asaro contemptuously failed to personally attend before the Ontario Court of Justice in a proceeding respecting the appellant’s youth court records. Some context is needed to explain this complaint. The Society brought an application under ss. 119 and 123 of the Youth Criminal Justice Act, S.C. 2002, c. 1 in order to be permitted to produce the appellant’s child-in-care file in this action. The motion judge did not find that Ms. Asaro had been ordered to appear in the Ontario Court of Justice for argument on the return of the Society’s application. He also noted that Ms. Asaro could not appear because she had sworn an affidavit to be used in the argument before the Ontario Court of Justice on the disposition of the youth court record.

[17] The Ontario Court judge who heard the application granted the parties involved in this lawsuit access to the Society’s file in order to ensure the “full and fair adjudication and disposition of the issues in that proceeding.” He was alive to the privacy issue and added a condition that the parties not disclose the records or any information therein to anyone “who does not have a direct interest in this civil proceeding.” His order also provided:

3. At the conclusion of the court litigation and any appeal period, the records of the proceedings under the Young Offenders Act, including charges and dispositions pertaining to [the appellant] shall be eradicated.

[18] The appellant has not identified any factual or legal error in the motion judge’s reasons for decision on the contempt motion. We agree with the motion judge’s reasons on contempt.

The Summary Judgment Appeal

[19] The four causes of action the appellant raised in her amended statement of claim were set out by the motion judge in his summary judgment reasons:

1. negligence and breach of fiduciary duty, arising from wrongful diagnosis of, and reliance on, "mental health pathologies", and the failure to act on sexual abuse complaints (Claim, paras. 15-29);
2. defamation arising from the inclusion and distribution of the wrongful diagnoses and other allegedly false statements contained in the file (Claim, paras. 33-35, 40 and 41);
3. breach of privacy, harassment and breach of fiduciary duty arising from wrongful disclosure of [the appellant’s [Children’s Aid Society] file (Claim, paras. 36-41); and
4. wrongful disclosure of the appellant's youth criminal proceedings ([Claim], paras. 33, 35 and 42).

[20] The motion judge analyzed each of these claims in detail. He found that: “[c]ertain of the pleaded causes of action do not exist in law. Others are unsupported by the evidence on this motion and there are no genuine issues requiring a trial.”

[21] There is no reason to repeat the motion judge’s analysis. It was compassionately expressed. The appellant does not claim that the motion judge made any factual errors. Apart from the motion judge’s analysis regarding the disclosure regime under the Young Offenders Act and the Youth Criminal Justice Act, we do not discern any legal errors.

[22] There is one point on which the motion judge arguably erred. This relates to the effect of s. 38 of the Young Offenders Act and the Society’s obligations under it.

The Effect of s. 38 of the Young Offenders Act

[23] The appellant disputes both the provision of the pre-disposition report to the Society and its subsequent transmission by the Society. She argues that the Society breached s. 38 of the Young Offenders Act by providing the pre-disposition report to third parties. In the appellant’s view, s. 38 of the Young Offenders Act required the destruction of the pre-disposition report wherever it was found, including any copies sent to the Society. The Young Offenders Act has since been replaced with the Youth Criminal Justice Act. Section 138(1) of the Youth Criminal Justice Act makes it an offence to publish the identity of an offender, contrary to s. 38(1) (identity not to be published) of the Young Offenders Act.

[24] The Society received a copy of the pre-disposition report because it was acting in the capacity of the appellant’s parent at the time of the youth court proceedings: Young Offenders Act, s. 44.1(1)(d); see also Youth Criminal Justice Act, s. 119(1)(e). While the Society complied with its statutory obligations in its indefinite retention of the appellant’s child-in-care file, the appellant argues and pleads that the Society wrongfully disclosed the pre-disposition report to the Board.

[25] This argument gives rise to several issues. The first is whether the appellant’s youth record, which includes the pre-disposition report, was subject to a presumption of non-disclosure: Young Offenders Act, ss. 45(1), 45(3); see also the Youth Criminal Justice Act, ss. 119(2), 128(2).

[26] The second issue concerns the relationship between the disclosure regimes under the Young Offenders Act and the Youth Criminal Justice Act and which applies in these circumstances.

[27] The third issue is whether the Society is exempt from the operation of the disclosure regime under these statutes.

[28] The fourth issue is whether the Society was obliged to seek judicial authorization permitting it to disclose the pre-disposition report to the Board, even if the appellant had arguably requested the Society to disclose information to the Board. The Board requested the Society to provide a letter summarizing: “(a) the findings from their investigation of the allegations; (b) any psychological assessments they have for [the appellant] in their files.” The appellant copied this passage almost verbatim in her letter to the Society asking it to “please forward the information the Board is requesting …” and to provide her with “a copy of [her] file.” She also attached a copy of the Board’s letter in her correspondence to the Society. However, the Society provided copies of several documents from the appellant’s file to the Board, not the summary the Board requested.

[29] The fifth issue is whether any breaches by the Society give rise to civil liability to the appellant for damages.

[30] The motion judge did not engage fully with these issues and they were not fully argued before this court. The motion judge said, at para. 48:

Finally, there is the disclosure of the [pre-disposition report] which [the appellant] alleges is in breach of the Young Offenders Act and the Youth Criminal Justice Act. There are two distinct reasons which lead me to dismiss this claim. First, to the extent [that] such disclosure may have been in breach of legislation, it ought to have been pursued as an offence under that legislation. Second, it is not clear that possession or disclosure of the [pre-disposition report], which was properly provided to [the Society] as [the appellant’s] parent between 1990 and 1993, is a breach of either the Young Offenders Act, which was in force at the time the report was prepared and obtained by [the Society], or the current Youth Criminal Justice Act. While there are detailed rules about youth court records, the obligations do not clearly apply where copies of a document, which also happen to be filed in youth court, are held by third parties. [Emphasis added.]

[31] As for the first reason for dismissing the claim, we do not accept that just because disclosure may constitute an offence under a legislative scheme, that this precludes pursuing the matter in an action. As for the second reason given for dismissing the claim, it revolves around a lack of clarity – “it is not clear” – as to the effect of the statute on the retention and disclosure of the subject material.

[32] Accordingly, the culminating issue of whether the Society is liable in damages to the appellant for this allegedly wrongful disclosure is left to be decided.

[33] We allow the appeal from the summary judgment motion in part. We leave it to the parties to decide how best to proceed under the Rules of Civil Procedure. We otherwise dismiss the appeal.

[34] The parties may make written costs submissions on the appeal and with respect to the costs of the motion for summary judgment. Submissions will be limited to five pages, exclusive of any bill of costs, on a two-week turnaround from the date this decision is released. The appellant will make her submissions first. After the respondents file their costs submissions, the appellant may make reply submissions, limited to two pages.

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”

“Fairburn J.A.”