COURT FILE NO.: 06-CV-303695PD3

DATE: 20120615

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HAIATA ASHAK, both personally and as Litigation Guardian for STEVEN TOMA, MONA TOMA, and MARY TOMA

Plaintiffs

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, AS REPRESENTED BY THE DIRECTOR FOR THE FAMILY RESPONSIBILITY OFFICE

Defendant

John Bruggeman, for the Plaintiffs

John Zarudny and Chantelle Blom, for the Defendant

HEARD: March 22, 2012

GRACE J.

REASONS FOR DECISION

A. Background

1Following the breakdown of the marriage of Haiata Ashak and Munir Toma, a final order was granted. Custody of the couple’s three children was granted to Ms Ashak. Mr. Toma was ordered to pay child and spousal support.

2That was the high water mark for Ms Ashak. The fact Mr. Toma was not represented or present when the November 19, 1996 order was made foretold the future. Within days Mr. Toma left Canada. Except for periodic visits to his brother, Mr. Ashak did not voluntarily return. More importantly, Mr. Toma did not willingly pay one penny on account of his obligations to his family.

3The support order was filed with the Family Responsibility Office (“F.R.O.”) pursuant to the Family Responsibility and Support Arrears Enforcement Act, 1996 (the “Act”).¹

4Collection efforts were undertaken. A writ of seizure and sale was issued and filed with the Sheriff’s Office in Toronto. A Support Deduction Notice was sent to the federal government. A negative credit report was filed. These steps were ineffective.

5No assets of Mr. Toma in Ontario were located. He was elusive and uncommunicative. Mr. Toma was believed to reside in Iraq: a jurisdiction with which Ontario has no reciprocal agreement.

6Without support from Mr. Toma, Ms Ashak obtained social assistance. She assigned the support order to the Minister of Community and Social Services.²

7Periodically, Ms Ashak contacted F.R.O. with information concerning Mr. Toma’s frequent movements and possible sources of income. Enforcement staff dutifully followed up on the information provided but made no progress.

8Unexpectedly Mr. Toma surfaced on October 16, 2002. He first called and then visited the F.R.O. office. Contact was not a product of conscience but necessity. Mr. Toma’s ability to travel was restricted. At F.R.O.’s request, the federal government had suspended Mr. Toma’s passport under the Family Orders and Agreements Enforcement Assistance Act.³

9F.R.O.’s case log reports detail much of what happened. Mr. Toma wanted F.R.O. to authorize the reinstatement of his passport. He claimed to have been unaware of the support order.⁴ Mr. Toma was told the quantum of accumulated support arrears. When told payment was not possible, F.R.O. staff informed Mr. Toma that the passport suspension would remain in place until he obtained a variation of the existing support order or the written consent of Ms Ashak and the Ministry of Community and Social Services.

10Shortly afterward, Ms Ashak was informed of that day’s events.

11Until his lawyer called F.R.O. on February 13, 2003 it had no further contact with Mr. Toma. What transpired was not recorded.

12On March 17, 2003, Mr. Toma reappeared at the F.R.O. counter. He advised that his lawyer was seeking a variation order. Several notations in the case log report thereafter have been redacted. One important March 19, 2003 notation remains. On that day, F.R.O. authorized the federal government to remove the suspension of Mr. Toma’s passport. Soon afterward, Mr. Toma left this country forever.

13I will return to the events of March 19, 2003 later. For now, it is sufficient to note that Ms Ashak alleges that F.R.O.’s actions that day were substandard. Ms Ashak seeks damages from Her Majesty the Queen in Right of Ontario as represented by the Director of F.R.O. (“Ontario”) “for breach of duty, negligence, gross negligence, breach of fiduciary duty, and/or vicarious liability.”⁵ Ontario seeks summary judgment dismissing the action. It says there is no genuine issue requiring a trial.

B. The Legislative Scheme – the Enforcement Regime

14Once filed, the Director of F.R.O. has a duty to enforce a support order⁶ unless of the opinion that one or more of the eleven circumstances outlined in s. 7 applies.⁷ By way of example, if of the opinion enforcement of the support order is unreasonable or impractical, the Director may decline to enforce it.⁸ If such a decision is made, the support order is deemed to be withdrawn from the date notice is given to the support payor and recipient.⁹

15The Director must also cease collection efforts in three other circumstances: if the support obligation terminates,¹⁰ if the support payor dies¹¹ or if the support order is withdrawn by the support recipient.¹²

16In enforcing a support order, the Director may employ a number of methods. They include traditional means available to any judgment creditor such as garnishment¹³ and writs of seizure and sale. However, the Act goes much further. For example, a charge on the payor’s land is created if the support order is registered by the Director.¹⁴ If payments are in arrears, additional steps may be taken: a lien and charge may be claimed under the Personal Property Security Act,¹⁵ the payor can be required to prepare and file a financial statement and proof of income,¹⁶ licences granted by the provincial or federal government – including a driver’s licence and passport – can be suspended,¹⁷ default may be reported to consumer reporting agencies or a payor’s occupational or licensing organization,¹⁸ lottery winnings may be claimed.¹⁹ If unable to locate a payor in default, the Director is able to post information about the payor on the internet.²⁰

17The Director is not required to take any particular step. Rather, the Director is required to carry out the statutory duties “in the manner, if any, that appears practical”.²¹

C. The Task Facing the Family Responsibility Office

18Philip Aiello is employed by F.R.O. as manager of Enforcement Services. His October 28, 2011 affidavit confirms what many would suspect. F.R.O.’s case load is immense: approximately 190,000 cases per year. Roughly 30-35,000 pieces of mail and 8,900 faxes are received each month. F.R.O.’s call centre answers approximately 2,000 calls each business day. Another 7,000 calls are placed to an automated information line every day.

19An affidavit of Enforcement Services Officer Cecile Ng Pan Hing was also filed. During her cross-examination, Ms Hing testified that on average she had carriage of approximately 1,500 files. The magnitude of the task is best illustrated by the amount of unpaid support. When Mr. Aiello’s affidavit was sworn arrears totaled approximately $1.5 billion.

D. The Events of and following March 19, 2003

20On March 19, 2003, Mr. Toma, his lawyer (Ms Swaby) and a lawyer (Mr. Sutter) for the Director attended before Brownstone J. of the Ontario Court of Justice.

21It appears that a poorly drafted motion had been filed with that Court. It sought an order “to shorten the time by the Respondents (sic) to answer this Application (sic)”. It appears to have been treated as if it sought three things : the return of Mr. Toma’s passport, a variation of the support order and an order staying enforcement by F.R.O.²²

22Notably, Ms Ashak was not present. Indeed, based on the transcript of the March 19, 2003 attendance, it does not appear the motion had even been served on her by that date.

23Brownstone J. was informed that Mr. Toma recognized the court did not have jurisdiction to order the return of his passport. That aspect of the motion was withdrawn.

24Counsel for F.R.O. then advised Brownstone J. that the motion material was in the process of being served on Ms Ashak and that $5,000 was being paid by Mr. Toma to be held by F.R.O. “in suspense” pending the return of the motion on April 10, 2003.

25Procedural issues were raised with and addressed by the motion judge. Brownstone J. agreed to require delivery of information concerning Mr. Toma’s earnings from 1996 onward as F.R.O. requested.

26Emphasis then shifted to the arrears and Mr. Toma’s plan to return to Iraq. This was the exchange:

THE COURT: …what are the arrears?

MR. SUTTER: Well, the arrears are over $200,000. We’re here today because Mr. Toma has the unfortunate prospect of having to go to Baghdad, Iraq, actually, in the next few days, to bring his wife and daughter to this country.

THE COURT: Why does he need to go to get them?

MS SWABY: No, no, he doesn’t need to bring them to this country. He needs to go and take them to a place of safety, such as Damascus, Syria. He needs to go and get them…because his wife will not be able to leave the country without him being present as her husband. That’s just one of the customs.

THE COURT: If he’s got the money to go there and do this…

MS. SWABY: No, his…

THE COURT: …he’s got the money to pay these arrears.

MS. SWABY: … relative had to give the money to him.

THE COURT: Then he might want to speak to that relative about paying up these arrears. Is this child support?

MR. SUTTER: And spousal, yes, Your Honour.

THE COURT: From a previous relationship.

MR. SUTTER: Yes.

THE COURT: Well, you’d better finish your unfinished business first before you take care of your current obligations. I wouldn’t be – I don’t have the power to deal with his passport but if I had, I would not be granting him his passport to leave the country while he owes this much money to somebody who is a resident in Canada. There is no certainty that he will return, given the obligations that are outstanding here. So anyway, that’s…

MS. SWABY: Thank you, Your Honour.

MR. SUTTER: Thank you, Your Honour.

THE COURT: I mean $5,000 is nothing if there is $200,000 owing.

27Brownstone J.’s endorsement read in part:

On consent, [Mr. Toma] shall pay to FRO $5,000 forthwith in cash. FRO shall hold the money in suspense until April10/03.

(It may be necessary on April 10/03 for this matter to be dealt with by me + not the 1st appearance clerk)

Re: stay of enforcement of motion returnable April 10/03: [Mr. Toma] shall serve + file proof of his income for the years 1996 to present.

28Brownstone J.’s words were unheeded and prophetic. Mr. Toma obtained his passport and left Canada. War started in Iraq on March 20, 2003. Mr. Toma did not provide the ordered disclosure and did not return.²³

29In her short December 12, 2011 affidavit Ms Hing offered this explanation for the events of March 19, 2003:

I entered into this agreement on behalf of FRO after taking into account the fact that Munir Toma was receiving social assistance, the urgent nature of his request to return to Iraq to ensure the safety of his child and spouse in advance of the United States war on Iraq, the fact that he had retained counsel through an Ontario Legal Aid Certificate, the fact that he had commenced a motion seeking to change the support order dated November 19, 1996 and a stay of enforcement and the fact that he indicated that he had borrowed the $5,000.

At the time…I had no reason to doubt that Munir Toma would not (sic) return from Iraq before the return date for his motion to change. Further there was no evidence to indicate that continuing to withhold his passport would have resulted in the payment of outstanding arrears or ongoing support as there was no evidence that there was any income or assets from which the money owing could be collected.

30On May 13, 2003, Brownstone J. varied the support order. Notably, he ordered that the $5,000 be disbursed to Ms Ashak’s lawyer and added:

Further, once the Family Responsibility Office establishes the amount of arrears owed to the respondent and the amount owed to the assignees, all monies received shall first be paid to [Ms Ashak] on account of her own arrears.

31F.R.O. took further steps to enforce the support order as varied. Mr. Toma’s passport was suspended again. Notice of garnishment was served on a financial institution. Attempts to locate Mr. Toma were made. Those steps yielded nothing. On September 14, 2004, Mr. Toma was killed in Iraq.

E. The Test for Summary Judgment

32Summary judgment is to be granted if the court is satisfied there is no genuine issue requiring a trial with respect to Ms. Ashak’s claim.²⁴

33Ontario maintains this action fits within two of the three categories mentioned by the Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch (“Combined Air”).²⁵ Ms Blom submitted the claim is without merit or alternatively, a case which can be dealt with on the merits without the need for trial.²⁶

34For the reasons that follow I do not agree. I do not accept that Ms. Ashak’s claim cannot possibly succeed at trial or is so doubtful that it does not deserve consideration by a trier of fact at a future trial.²⁷ To the contrary, I am of the view Ms Ashak has established a prima facie duty of care and that there are several aspects of her claim which require a trial for their just determination.

F. Analysis

(a) Liability - Negligence

35Ms Ashak maintains that F.R.O. should not have requested the federal government to lift the suspension of Mr. Toma’s passport. She maintains that a fiduciary duty and duty to act in good faith was breached, that those involved in the decision were “grossly negligent” and that Ontario is vicariously liable.²⁸

36The submissions of counsel dealt primarily with the allegation of negligence. My analysis starts there.

37Ms Blom, counsel for Ontario maintains that no duty of care is owed to Ms Ashak. Ms Blom relies on the House of Lords seminal decision in Anns v. Merton London Borough Council (“Anns”)²⁹ and Canadian cases which have applied it including Cooper v. Hobart³⁰ and R. v. Imperial Tobacco Canada Ltd. (“Imperial Tobacco”).³¹

38The authorities establish this basic proposition: a private citizen can only pursue an action against a public authority in negligence if the court is satisfied:

a) The case is very similar to another where a duty of care has been recognized;³² or

b) That the relationship between the plaintiff and public authority is sufficiently close – or proximate – to justify imposition of a prima facie duty of care and that policy considerations do not prevent recognition of that duty.³³ This latter subparagraph describes the two stages of what is known as the Anns test.

39Public authorities have been held to owe duties of care in many situations including building inspection,³⁴ road maintenance³⁵ and police investigations.³⁶ The parties acknowledge this case does not fit within a recognized category of cases. I was not referred to any prior finding that a duty of care is owed by F.R.O. to anyone other than the public at large. In Pfeiffer v. Ontario (“Pfeiffer”),³⁷ a support payor commenced an action against Ontario alleging that Ontario had continued to enforce a support deduction order improperly. Walters J. dismissed the action. She concluded that Ontario did not owe a support payor a private law duty of care. At paragraph 37 of her reasons, the motions judge wrote:

The Director’s duty is to the public as a whole to ensure that court ordered support is paid in a timely and efficient manner.

40Ms Blom ably argued that the finding in Pfeiffer has two consequences: first, Ms Ashak cannot fit her case within an existing category that gives rise to a duty of care and second, Ms Ashak cannot satisfy the Anns test.

41I agree with the former submission: this case does not fit within a recognized category of cases expressly or by analogy.³⁸

42I turn to the latter submission. The first stage of the Anns test involves this question: does the relationship between Ms Ashak and F.R.O. “disclose sufficient foreseeability and proximity to establish a prima facie duty of care”?³⁹ The onus of satisfying this stage lies with Ms Ashak since she is the person seeking to establish the duty.⁴⁰

43A prima facie duty of care may arise in three⁴¹ situations: first, “explicitly or by implication from the statutory scheme”, second, from interactions between the claimant and the government provided the duty is not negated by statute and third, from a combination of the parties’ interactions and the statutory duties imposed on the government.⁴²

44In my view, a prima facie duty of care arises in this case from the legislative scheme and the interactions between F.R.O. and Ms Ashak. Let me explain.

45Earlier I provided an overview of the enforcement provisions contained in the Act. A brief summary will suffice.

46The task of enforcing a support order is assumed by the Director upon its filing.⁴³ The obligation to enforce ends if the support order is withdrawn by the support recipient, the Director refuses to enforce for one of the delineated reasons or is required to cease enforcement because the support obligation terminates or the payor dies. In this case, the support order was being actively enforced when the events in question occurred.

47I agree with Walters J. that F.R.O. owes a duty to the public generally. This case illustrates why that is so. The support order required Mr. Toma to pay $2,500 per month in combined child and spousal support.⁴⁴ He paid nothing. Ms Ashak was forced to turn to social assistance. Support was provided to Ms Ashak and her children using public rather than Mr. Toma’s funds. If monies were recovered from Mr. Toma, the Ministry of Community and Social Services may have been repaid. If enforcement measures are employed carelessly, available sources of income or other assets may remain in the payor’s hands and not be paid to the intended recipient or returned to the public coffers.

48However, support recipients are also acutely interested in the outcome of any enforcement measures. The failure to realize on available assets or sources of income will cause financial loss to the support recipient. It may even result in the support recipient being deprived of the financial ability to meet their own basic needs and those of their children.

49This case provides a practical illustration. It is alleged that negligent enforcement perpetuated Ms Ashak’s reliance on social assistance. Payments made from the public system were far more modest than Mr. Toma was obligated to pay.⁴⁵

50It is alleged that effective enforcement would have yielded recovery for Ms Ashak.⁴⁶ I agree economic harm to Ms Ashak and her children was a foreseeable consequence of negligent enforcement.

51I turn to a further and crucial aspect of this stage of the Anns test: proximity.

52Effective enforcement requires a combined effort by the support recipient and F.R.O. The support recipient must provide required information to F.R.O.

53As noted, the Director may refuse to enforce a support order for eleven reasons. Four of them relate to the support recipient: a failure to provide requested information or to disclose the recipient’s whereabouts, repeated acceptance of direct payments from the payor or the recipient’s consent to no or limited enforcement.⁴⁷ A January 21, 1997 letter from F.R.O.’s predecessor described Ms Ashak’s continuing role in the following terms.

It is up to you to keep us informed

If there is a problem receiving your support payments, we can act more quickly if we have up-to-date information in our files…Please write to us whenever you have new information about where the payor…lives or works.

54The case log report filed by Ontario in this case evidences frequent calls from Ms Ashak. She was proactive in providing information to F.R.O. which was clearly intended to assist in locating Mr. Toma, sources of income and assets. While F.R.O. suggests Ms Ashak could have assumed control of the enforcement process, its submission ignores three things: first, Ms Ashak could not withdraw the support order from F.R.O. without the consent of the Ministry of Community and Social Services;⁴⁸ second, Ms Ashak’s complaint is largely confined to the events of a single day – March 19, 2003 and third, it seems disingenuous to suggest that a financially distressed support recipient can fund enforcement measures herself.⁴⁹

55I have already outlined the steps taken to enforce the support order Ms Ashak obtained.⁵⁰ The suspension of Mr. Toma’s passport was the one which caused him to surface. Ms Ashak’s file was now active and pressing.

56F.R.O.’s actions impacted Ms Ashak in various ways. An October 16, 2002 entry in F.R.O.’s case log report caught my eye. It recorded a call from Ms Ashak. It observed Ms Ashak was in a “panic” because she had been the subject of “harassing” and “threatening” behaviour by Mr. Toma.

57Two days later Mr. Toma called and then attended F.R.O.’s office as a result of the suspension of his Canadian passport.

58Later that day F.R.O. contacted Ms Ashak to advise her of Mr. Toma’s attendance. I accept that call was a product of courtesy, not legal obligation. Support recipients have no right to instruct F.R.O. F.R.O. does not have an obligation to consult with a support recipient. However, those observations do not lead to the conclusion Ms Blom advocates.

59A relationship between F.R.O. was established and was subsisting on March 19, 2003. F.R.O. was entrusted with the task of attempting to protect and advance the economic interest of the public – and Ms Ashak. It accepted that responsibility and took action. In my view, the relationship between Ms Ashak and F.R.O. is sufficiently close – or proximate – that a prima facie duty of care arose.⁵¹

60Are there reasons to find that a public and private duty cannot co-exist? Cooper v. Hobart is an example of a situation where they could not. Dissatisfied investors alleged that a statutory regulator had suspended the licence of a mortgage broker a year too late. While the investors met the foreseeability requirement, they were not able to establish sufficient proximity to the regulator. Writing for a unanimous court, McLachlin C.J. and Major J. held the regulator had to balance a myriad of competing interests to ensure the efficient operation of the mortgage industry. They concluded:

Even though to some degree the provisions of the [Mortgage Brokers] Act serve the interests of investors, the overall scheme of the Act mandates that the Registrar’s duty of care is not owed to investors exclusively but to the public as a whole.⁵²

61Syl Apps Secure Treatment Centre v. B.D.⁵³ is another example where public and private duties were incompatible. In that case a child was apprehended by a Children’s Aid Society and ultimately found to be in need of protection. The child was sent to a treatment facility. In a subsequent action against the treatment centre and others, members of the child’s family alleged that their relationship with the child was destroyed by unfounded allegations of physical and sexual abuse. The statement of claim was struck. The Supreme Court of Canada concluded the “overall and determinative emphasis” of the legislation there in issue was “on the protection and promotion of the child’s best interests, not those of the family.”⁵⁴

62However, there are also circumstances where the opposite conclusion has been reached. In Hill v. Hamilton-Wentworth Regional Police Services Board (“Hill”),⁵⁵ the Supreme Court of Canada held that the plaintiff could pursue an action against the police for negligent investigation. The police had identified Hill as a suspect in a series of robberies. The investigation affected Hill’s freedom, reputation and liberty. McLachlan C.J. found:

These high interests support a finding of a proximate relationship giving rise to a duty of care.⁵⁶

63The decision in Hill must not be taken too far. It was recognized the Court’s concern was “only with a very particular relationship – the relationship between a police officer and a particularized suspect that he is investigating.”⁵⁷ This case does not involve Ms Ashak’s personal freedom, her reputation or her liberty.

64Several cases have reviewed regulatory duties to inspect buildings and enforce provisions of a building code. Duties of care have been held to be owing to owners, a subsequent purchaser and third parties harmed by a construction defect.⁵⁸ In Fullowka v. Pinkerton’s of Canada Ltd.⁵⁹ families of miners killed when a few striking workers caused an explosion sued. The defendants included the Government of the Northwest Territories which had a statutory responsibility for mine safety. The territorial government was found to have owed the miners a duty of care.

65Ontario maintains the purpose of the Act is to reduce the number of Ontarians seeking benefits under provincial programs. That may be. It is not self-evident to me that it is the only purpose.

66The Act is not regulatory. F.R.O. has no adjudicative function.⁶⁰ To the contrary. As Whalen J. recently said on behalf of a unanimous Divisional Court panel in Tsaros v. Director of the Family Responsibility Office:⁶¹

...the Director...must act fairly and even-handedly both in respect of payees and payors, being careful not to prefer one over the other, appear to take sides, or to assume the role of a court in resolving controversies of fact and entitlement.⁶²

67However, the statement does not mean that the Director is passive. The Director is given responsibility and power to enforce certain kinds of monetary orders. Actions can be and are taken which are beneficial to support recipients and detrimental to payors.

68The fundamental importance of the support order and its enforcement to the plaintiffs cannot be under-estimated. The support order was designed to ensure the economic well-being of Ms Ashak and her children. Without the benefit of a single payment, the family’s subsistence was dependent on payments from the public purse. That was the economic reality Ms Ashak and her children endured for almost six years before Mr. Toma made a surprise call and visit to F.R.O.

69The Act provides a means of ensuring that the obligations imposed on a payor by the court are fulfilled. The legislation creates a scheme which directly and profoundly affects those who have filed support orders with F.R.O. The extent of the relationship which can develop is illustrated here. It was close, direct, long-standing and crucial to Ms Ashak and her children. It was one which imposed on Ontario “an obligation to be mindful” of Ms Ashak’s legitimate economic interests.⁶³

70This is the rare situation identified by McLachlin C.J. in Imperial Tobacco. Writing for a unanimous court, the Chief Justice wrote:

Some statutes may impose duties on state actors with respect to particular claimants.⁶⁴

71This aspect of the analysis is not yet complete. Does section 59 (1) of the Act create an insurmountable obstacle for Ms Ashak? It provides in part:

No action…for damages shall be instituted against the Director or any employee of the Director’s office…for any alleged neglect or default in the execution in good faith of any duty or authority under this Act.

72In Edwards v. Law Society of Upper Canada (“Edwards”),⁶⁵ the majority of the Supreme Court of Canada concluded a similarly worded provision in the Law Society Act⁶⁶ provided “statutory immunity”⁶⁷ and “precludes any inference of an intention to provide compensation” through an action in tort.⁶⁸

73Absent that authority I would have unhesitatingly concluded s. 59 (1) narrowly circumscribes but does not prohibit proceedings against the Director and the Director’s employees. I would have thought s. 59 (1) unnecessary if a private law duty of care was not owed to support recipients.

74I would have reached the same conclusion as Nelson J. in Lapchuk v. Ontario (Director, Family Responsibility Office) (“Lapchuk”),⁶⁹ when he concluded that s. 59 (1) limited “F.R.O.’s liability for damages by providing that courts cannot order damages against it unless it fails to act in good faith.”⁷⁰

75In light of the authorities, closer examination of s. 59 is warranted. As noted, section 59 (1) applies to claims against the Director or any employee of the Director’s office. Ms Ashak seeks recovery from Ontario – not any individual.

76Section 59 (2) addresses claims against Ontario itself. It reads:

Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (1) does not relieve the Crown of liability in respect of a tort committed by a person mentioned in subsection (1) to which it would otherwise be subject.

77At first blush that subsection promotes rather than removes confusion.

78A review of the Proceedings Against the Crown Act⁷¹ assists. It delineates circumstances in which proceedings may – or may not – be commenced against the provincial Crown.

79Section 5 of that statute deals with tort claims. Section 5 (1) (a) establishes a general rule: the Crown is vicariously liable for torts committed by its servants or agents. However, subsections 5 (2) and (4) set forth two important limitations. First, if the servant or agent is immune from liability, the Crown is too.⁷² Second, if the circumstances in which the servant or agent is liable in tort are legislatively limited, the Crown is entitled to the benefit of that limitation.⁷³

80Section 59 (2) eliminates subsections 5 (2) and (4) from Ontario’s arsenal. It is, in my view, important and has this effect: Ontario is vicariously liable for a tort committed by the Director or any employee of the Director’s office even if the person committing the tort acted in good faith. Read in its entirety, s. 59 does not relieve Ontario of vicarious liability for the negligent execution of any duty or authority under the Act. To the contrary, if the Anns test is satisfied, a right of action is expressly conferred.

81The court did not address that subsection in Lapchuk. No similar subsection exists in the Law Society Act which was the focus in Edwards.

82Ms Blom submitted that there are two other factors arising that prevent recognition of a duty of care.⁷⁴

83First, she maintains the imposition of a duty of care gives rise to indeterminate liability. I was given examples of cases where that concern existed and was fatal to a plaintiff’s claim.⁷⁵

84Ontario’s factum put the submission this way:

FRO has no control over how many family support orders are made each year and registered with FRO for enforcement nor does it have any control over the number of support payors who are unable or unwilling to make their monthly support payments. FRO is not a party to family court proceedings and/or the orders that are registered with it for enforcement such that it could bring motions to vary the terms of support orders in cases where the circumstances of the payor have changed and it is no longer practical or reasonable to continue with enforcement.⁷⁶

85With respect, those two sentences do not establish a risk of indeterminate liability. A myriad of enforcement mechanisms are at the Director’s disposal. The Act confers considerable discretion. The very situation raised in Ontario’s factum is addressed in the Act. It allows the Director “at any time” to “refuse to enforce a support order…if, in his or her opinion…enforcement…is otherwise unreasonable or impractical.”⁷⁷ Ms Ashak’s claim does not arise because F.R.O. declined to enforce the support order but because of a problematic decision made in extraordinary circumstances during the course of enforcement.

86F.R.O. employs personnel for the specific purpose of enforcing support orders. They have – or should have – expertise in that area. Those in the private sector who enforce monetary orders owe their clients a duty of care. Absent a statutory provision to the contrary, should the Crown be immune because the service is publically funded? In my view the answer is no.

87In Hill, McLachlin C.J. wrote:

Courts are not in the business of second-guessing reasonable exercises of discretion by trained professionals. An appropriate standard of care allows sufficient room to exercise discretion without incurring liability in negligence. Professionals are permitted to exercise discretion. What they are not permitted to do is to exercise their discretion unreasonably. This is in the public interest.⁷⁸

88I agree. The issues raised by Ontario on this motion can be considered in determining whether the standard of care has been met.⁷⁹ Importantly, the record is devoid of evidence to suggest that lawsuits will abound if a duty of care is imposed. It is inappropriate at the summary judgment stage and on the evidence before me to decline to recognize a duty of care on this ground.⁸⁰

89Second, Ms. Blom argued that the imposition of a duty shifts responsibility for satisfaction of support orders from the payor to the Crown. It does no such thing. Prior to March 19, 2003, Ms Ashak’s focus was on Mr. Toma. She tried in vain to help F.R.O. find him and a source from which support could be paid.

90It was her persistence that caused F.R.O. to initiate steps that resulted in the suspension of Mr. Toma’s passport. The return of Mr. Toma in October, 2002 created hope that he would finally be compelled to do that which he had avoided to do: fulfill his obligation to his spouse and his children.

91The events of March 19, 2003 caused a justifiable shift in Ms Ashak’s gaze – not because Mr. Toma was no longer responsible for support but because the actions of F.R.O. had allowed him to escape his obligations for good.

92I recognize Ontario takes the position Ms Ashak should be thankful $5,000 was obtained from F.R.O.’s efforts. However, Ms Ashak’s position that an opportunity for substantial – if not complete – recovery vanished as a result of a flawed operational decision deserves to be determined at trial. In my opinion, it is not appropriate on the record before me to attempt to address the question of whether the applicable standard of care was met. I simply do not have a sufficient appreciation of the evidence to make dispositive findings.⁸¹

93In light of my conclusion with respect to the negligence claim, I do not propose to address the issue of whether Ontario owed or breached a fiduciary duty at length. Suffice to say that the question of whether Ms Ashak can satisfy the requirements articulated in Alberta v. Elder Advocates of Alberta Society⁸² should be determined at trial.

(b) Damages

94Lastly, Ontario submits that no evidence has been led which establishes the availability of assets or income which could have been used to satisfy any portion of the support arrears.

95While the evidence is admittedly thin, I would not go that far.

96In his February 19, 2003 affidavit, Mr. Toma admitted that he was employed by Gulf Bridge Trading, that he was in a management position⁸³ and that he was in Germany en route to Russia when his passport was “seized”.

97He claimed to be earning only $3,098 USD per year and filed in support a short letter from Fuad Qasem, Gulf Bridge Trading’s “Director – Personnel Affairs”.

98I have seen nothing that suggests Mr. Toma made any further financial disclosure notwithstanding the requirements of the Family Law Rules⁸⁴ and the March 19, 2003 endorsement of Brownstone J.

99Mr. Toma’s assertions that he earned a nominal sum and was properly receiving social assistance were untested. I emphasize his motion materials had not yet been served on Ms Ashak.

100Mr. Toma’s financial situation was shrouded in mystery when he arrived in this country. His departure guaranteed it would remain so.

101Mr. Toma was able to pay $5,000 to F.R.O. on March 19, 2003. He was able to travel overseas. The source of funds is unknown.

102Ms Ashak alleges Mr. Toma was Chairman of Gulf Bridge Trading Agencies Co. Ltd. A business card bearing his name and that title was introduced into evidence. She filed account statements of Gulf Bridge Trading with Abu Dhabi Commercial Bank from 1997 and 1998. She deposed having been told by Mr. Qasem that Mr. Toma made $239,200 annually.

103An affidavit of Mr. Toma’s daughter Mona was also filed. She described a seven day visit with her father in Germany in May, 2002. She said she received €4,000 in gifts and a further $1k USD on her return to Canada. Ms Toma deposed that she was shown pictures of an “immense palatial home in Iraq” which was “cluttered with antiques and huge elaborate furniture” and a suitcase full of cash.

104She also described her father’s behaviour after he returned to Canada. In part, Ms Toma said:

…he was freaking out because he was losing thousands of dollars a day in Canada. My father started making threats to my mother and harassing my mother telling her that he was going to kill her, and her family, including a number of family members back home in Iraq, if my mother did not sign a consent to get his passport back. I personally heard these threats…My father told me that he was making sure that my mother never gets a penny in support.⁸⁵

105Documentary support for the allegations is lacking. However, the opportunity to obtain more information evaporated with Mr. Toma’s departure. I do not agree with Ontario that no damages have been proven. If there is a subsequent finding that the required standard of care was not met, an opportunity for recovery will have been lost. Difficulty in quantifying the damages that flow is very different than impossibility.⁸⁶

106It is in the interest of justice that this issue also be resolved at trial.

F. Conclusion and Disposition

107For the reasons given, the motion for summary judgment is dismissed.

108If the parties cannot agree on costs, short written submissions not exceeding four pages may be provided to me through Judges’ Administration, Court House, 12th Floor, Unit “K”, 80 Dundas Street, London, Ontario. Those of Ms Ashak should be delivered by July 6, 2012 and those of Ontario by July 23, 2012.

109I was not asked to and have therefore not given directions or imposed terms pursuant to rule 20.05. If there are directions or terms counsel agree would be appropriate, I would be pleased to assist.

“Justice A. D. Grace”

GRACE J.

Released: June 15, 2012

COURT FILE NO.: 06-CV-303695PD3

DATE: 20120615

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HAIATA ASHAK, both personally and as Litigation Guardian for STEVEN TOMA, MONA TOMA, and MARY TOMA

Plaintiffs

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, AS REPRESENTED BY THE DIRECTOR FOR THE FAMILY RESPONSIBILITY OFFICE

Defendant

REASONS FOR DECISION

GRACE J.

Released: June 15, 2012

Finally, it is possible to envision a claim where proximity is based both on interactions between the parties and the government’s statutory duties.

Footnotes

1. 1S.O. 1996, c. 31, s. 5.
2. 2An April 4, 2003 assignment was filed. It replaced an earlier assignment dated February 18, 1997.
3. 3R.S.C. 1985, c. 4 (2nd Supp.), ss. 62 and 69 (2).
4. 4The November 19, 1996 endorsement of MacLatchy J. recorded the fact that Mr. Toma’s lawyer attended in court, indicated he could not obtain instructions and asked to be and was removed from the record. It also recorded that Mr. Toma “was aware of today’s hearing as he spoke last night to his daughter.”
5. 5This language is taken from para. 1 (a) of the Amended Statement of Claim.
6. 6My use of the phrase is intended to include a support deduction order. The pre-printed support registration form was written in the form of a request from the support recipient. It reads: “From now on, I want the Family Support Plan to try to collect the support payments owing to me.”
7. 7Family Orders and Agreements Enforcement Assistance Act, supra note 3, ss. 5 and 20 (1).
8. 8Ibid. s. 7 (1) (k). For a recent example of such a case see Tsaros v. Director of the Family Responsibility Office, 2012 ONSC 2449 (Div. Ct.).
9. 9Ibid. s. 7 (3).
10. 10Ibid. s. 8 (1).
11. 11Ibid. s. 8 (3).
12. 12Ibid. s. 16 (1). If the support order is the subject of an assignment to the Ministry of Community and Social Services or another agency described in s. 14 (1), the withdrawal is not effective unless accompanied by the assignee’s consent: s. 16 (2).
13. 13Service of notice of a support deduction order is deemed to be a notice of garnishment: s. 20 (5).
14. 14Ibid. s. 42.
15. 15Ibid. s. 43.
16. 16Ibid. ss. 40 and 41.
17. 17Ibid. ss. 33 – 39.1
18. 18Ibid. ss. 47 – 47.2.
19. 19Ibid. s. 46.
20. 20Ibid. s. 61.1.
21. 21Ibid. s. 6 (1).
22. 22An affidavit of Mr. Toma sworn February 19, 2003 was filed in support. Mr. Toma did not prepare a change information form and the affidavit did not comply with rule 15 (22) of the Family Law Rules. Instead it attached a short letter from Gulf Bridge Trading dated February 13, 2003 which alleged that Mr. Toma’s annual earnings were only $3098 USD and a copy of a cheque and statement of assistance from the City of Toronto dated February 4, 2003 evidencing the fact Mr. Toma was in receipt of social assistance. According to paragraph 47 of the affidavit of Philip Aiello, Manager of Enforcement Service of F.R.O., the material included a “Financial Statement of Munir Toma”. Exhibit “T” to that affidavit included no such document.
23. 23These facts are drawn from paras. 49 - 50 of Mr. Aiello’s affidavit.
24. 24Rule 20.04 (1) (a) of the Rules of Civil Procedure.
25. 252011 ONCA 764
26. 26Ibid. at paras. 42 and 44.
27. 27Cuthbert v. TD Canada Trust, 2010 ONSC 830, [2010] CarswellOnt 867 at para. 11; Birnam Excavating Ltd. v. Union Gas Limited, 2012 ONSC 359 (S.C.J.) at para. 60
28. 28That summary is drawn from paras. 16-20 of the Amended Statement of Claim.
29. 29[1978] A.C. 728.
30. 302001 SCC 79, [2001] 3 S.C.R. 537.
31. 312011 SCC 42, [2011] 3 S.C.R. 45.
32. 32Childs v. Desmormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643 at para. 15.
33. 33Imperial Tobacco, supra note 30 at para. 39; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129. Of course, the other elements of the tort of negligence must be proven in order for the claim to succeed: Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 206 at pp. 225-6.
34. 34Anns, supra note 22; Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2.
35. 35Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228; Swinamer v. Nova Scotia (Attorney General), 1994 CanLII 122 (SCC), [1994] 1 S.C.R. 445.
36. 36Hill v. Hamilton-Wentworth Regional Police Service Board, supra note 33. See, too, Cooper v. Hobart, supra note 30 at para. 36.
37. 37[2006] O.J. No. 3854 (S.C.J.).
38. 38Eliopoulos (Litigation Trustee of) v. Ontario (Ministry of Health and Long-Term Care (2006), 82 O.R. (3d) 32 (C.A.).
39. 39The excerpt is drawn from Hill v. Hamilton-Wentworth Regional Police Service Board, supra note 33, para. 20.
40. 40River Valley Poultry Farm Ltd. v. Canada (Attorney General), 2009 ONCA 326 at para. 33.
41. 41Imperial Tobacco Canada Ltd., supra note 33 at para. 43 mentions two situations and is often quoted. However, the third possibility is added in these terms in para. 46:
42. 42Ibid. at paras. 43-46.
43. 43For simplicity I will generally refer to F.R.O. rather than the Director
44. 44The payments were to be increased annually based on the Consumer Price Index.
45. 45According to an Assignment/Direction Information Form dated February 18, 1997, Ms Ashak was receiving monthly social assistance in the amount of $1,310.
46. 46Ordinarily the monies would be paid to the Ministry of Community and Social Services first. However, the May 13, 2003 order of Brownstone J. – which was made in the presence of counsel for that Ministry – directed payment to Ms Ashak first.
47. 47Family Responsibility and Support Arrears Enforcement Act, supra note 1, ss. 7 (1) (d), (e), (h) and (i).
48. 48Ibid. s. 16 (3).
49. 49I take no issue with the conclusion in Pfeiffer v. Ontario, supra note 37 and elsewhere that the Act does not create a private law duty of care insofar as a support payor is concerned.
50. 50See paragraphs 4-10 above.
51. 51See, too, Correia v. Canac Kitchens, 2008 ONCA 506 at paras. 24-30.
52. 52Cooper v. Hobart, supra note 30, para. 49.
53. 532007 SCC 38, [2007] S.C.J. No. 38.
54. 54Ibid. at paras. 45-6. For a similar finding, see Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562 at para. 14.
55. 55Supra, note 33.
56. 56Ibid. at para. 34.
57. 57Ibid. at para. 37; River Valley Poultry Farm Ltd. supra note 40.
58. 58Examples include Kamloops (City of) v. Nielsen, supra note 33; Rothfield v. Manolakos, 1989 CanLII 17 (SCC), [1989] 2 S.C.R. 1259; Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298.
59. 592010 SCC 5, [2010] 1 S.C.R. 132. The analysis was applied by Morissette J. in Birnam v. Union Gas, supra note 27.
60. 60Unlike the situation in Wareham v. Ontario (Minister of Community and Social Services), 2008 CanLII 1179 (ON SC), [2008] O.J. No. 166 (S.C.J.) varied 2008 ONCA 771.
61. 612012 ONSC 2449 (Div. Ct.)
62. 62Ibid. at para. 7.
63. 63Hercules Managements Ltd. v. Ernst & Young, 1997 CanLII 345 (SCC), [1997] 2 S.C.R. 165, at para. 24; Hill v. Hamilton- Wentworth Regional Police Service Board, supra note 33 at para. 34; Mohammed v. Goodship, 2009 ONCA 320. That wording was quoted with approval in Cooper v. Hobart, supra note 30 at para. 33.
64. 64Ibid. See, too, Hercules Managements Ltd. v. Ernst & Young, supra note 63.
65. 65Supra note 54.
66. 66R.S.O. 1990, c. L.8, s. 9.
67. 67Supra, note 54 at para. 16.
68. 68Ibid. at para. 17. A similar conclusion was reached in Syl Apps Secure Treatment Centre v. B.D., supra note 53 at paras. 60-62.
69. 69[2005] O.J. No. 1110 (S.C.J.)
70. 70Ibid. at para. 22.
71. 71R.S.O. 1990, c. P-27.
72. 72Ibid. s. 5 (2).
73. 73Ibid. s. 5 (4).
74. 74Syl Apps Secure Treatment Centre v. B.D., supra note 53 at paras. 32 – 33 outlines that policy considerations come into play in both stages of the Ann’s analysis: in stage one based on the particular relationship of the parties and at stage two in the context of other legal obligations, the legal system and society generally.
75. 75See, for example, Hercules v. Ernst & Young, supra note 63 at para. 32; Cooper v. Hobart, supra note 30 at para. 53; Imperial Tobacco, supra note 33, para. 99.
76. 76The excerpt is drawn from paragraph 62 of Ontario’s factum.
77. 77Supra, note 1, s. 7 (1) (k).
78. 78Hill v. Hamilton-Wentworth Regional Police Services Board, supra note 33, at para. 54.
79. 79Ibid. at para. 51.
80. 80The onus of establishing overriding policy considerations to negate a prima facie duty of care lies with Ontario: River Valley Poultry Farm Ltd. v. Canada (Attorney General), supra note 40 at para. 34. See, too, Correira v. Canac Kitchens, supra note 51 at para. 64.
81. 81Combined Air Mechanical Services Inc. v. Flesch, supra note 25 at para. 50.
82. 822011 SCC 24, [2011] 2 S.C.R. 261. See, too, Authorson v. Canada (Attorney General) (2001), 2002 CanLII 23598 (ON CA), 58 O.R. (3d) 417 (C.A.).
83. 83The letter appended to his affidavit referred to him as the “General Manager” of the “branch in Iraq”.
84. 84Rule 13 (4.2) required that Mr. Toma serve and file a financial statement with the motion to change.
85. 85Ms Toma was cross-examined. She had no documents to support her allegations but she did not move from the position I have summarized.
86. 86Folland v. Reardon, 2005 CarswellOnt 232 (Ont. C.A.); Prior v. McNab (1977), 1976 CanLII 604 (ON SC), 16 O.R. (2d) 380 (H.C.J.); Gouzenko v. Harris (1977), 1976 CanLII 794 (ON SC), 13 O.R. (2d) 730 (H.C.J.); Kitchen v. Royal Air Forces Ass’n, [1958] 2 All E.R. 241.