ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-0004
DATE: 2014-09-29
B E T W E E N:
D.S.B. & C.M.L.,
The Plaintiff D.S.B. being self-represented.
No one appearing for the Plaintiff C.M.L., a minor
Plaintiffs
- and -
Kenora Rainy River Child And Family Services, Katherine Marks, Regan Moore, Allan Banning & Eveline O’Flaherty,
Carole Jenkins, for the Defendants Kenora Rainy River Child & Family Services, Katherine Marks and Regan Moore
Stephen Birman, for the Defendants Eveline O’Flaherty
Defendants
Allan Banning not appearing.
HEARD: September 3, 2014,
at Kenora, Ontario
Mr. Justice F. B. Fitzpatrick
Decisions On Motions
[1] Three motions come before the Court in this matter. Two motions are by two distinct groups of defendants seeking to strike out the statement of claim made against them in this action. The plaintiffs also brings a motion which, unnecessarily, at least from a procedural perspective, asks for the defendants motions to be dismissed, but also seeks a very specific order requiring that the Office of the Children’s Lawyer be appointed for the minor plaintiff in this matter.
[2] During the motion an issue was raised about the necessity of protecting the identity of the plaintiffs as the matter at issue involved reference to a child protection matter. Out of an abundance of caution I will refer to the plaintiffs by their initials. Also I am ordering this Court file be sealed to be accessed only by the parties or counsel acting on their behalf.
[3] The central document at issue in all of these motions is a statement of claim commenced by D.S.B. and a minor C.M.L. as plaintiffs, against Kenora Rainy River Child and Family Services (“KRRCFS”), Katherine Marks and Regan Moore (they will be referred to either by their first name or collectively as the “Staff”), Eveline O’Flaherty (“Eveline”) and Allan Banning. No relief in any of the motions before the Court related to Mr. Banning. He was present in the courtroom but did not take part in the motion.
[4] D.S.B. represents himself. He drafted the claim. It is very poorly drafted. However, from a reading of it, it can be discerned, barely, that the claim at issue involves allegations and claims for damages by both C.M.L. and D.S.B., arising from C.M.L. being apprehended by KRRCFS. The claim does not specify a date she was apprehended. However, in argument D.S.B. indicated this occurred in September 2012. C.M.L. was then placed in foster care with Mr. Banning. It is alleged she was maltreated while in his care. Both D.S.B. and C.M.L. seek damages arising from the actions of KRRCFS, the Staff and Mr. Banning.
[5] The claim also makes reference and seeks damages for both C.M.L. and D.S.B. relating to two separate interactions between Eveline and C.M.L. The first involves an allegation that Eveline placed C.M.L. in Mr. Banning’s car the day she was apprehended. The second involves an allegation that Eveline caused C.M.L. to be suspended from school. D.S.B. has failed to particularize the dates of either occurrence in the claim.
The Motion by the Plaintiffs
[6] I will deal first with the motion by the plaintiffs. In my view, the only valid relief sought is the claim to have the Children’s Lawyer appointed for C.M.L. I appreciate that D.S.B. opposes having the claim struck out and I will deal with his argument and material in a later section dealing specifically with his claim. In my view, it is appropriate to deal with D.S.B.’s claims and C.M.L.’s claims on this motion separately as they have quite different qualities given their status as litigants and what is alleged to have occurred.
[7] There is no issue that the plaintiff C.M.L. is a minor. She is therefore a person under a disability within the meaning of the Rules of Civil Procedure. Rule 7.01(1) provides that unless the Court orders or a statute provides otherwise, any action by C.M.L. must be commenced by a litigation guardian. D.S.B. acknowledges this requirement but asks that the Children’s Lawyer be appointed. The Children’s Lawyer was not served with the motion material in this matter and as a result did not participate in the hearing.
[8] This action was commenced by D.S.B. The style of cause does not indicate he is acting as C.M.L.’s litigation guardian. As far as the Court is concerned, she is unrepresented. The action on her behalf has not been commenced in accordance with the Rules. C.M.L. did not attend this motion and D.S.B. sought to address the Court on her behalf. The Court permitted him to do so solely for the purpose of resolving this motion.
[9] D.S.B. filed an affidavit in support of the plaintiffs’ motion. The affidavit is completely silent on the issue of representation for C.M.L. The Court has no evidence upon which to base a decision about how to properly proceed in the face of the irregular manner in which this action has been commenced.
[10] D.S.B. seeks an order pursuant to Rule 7.04(1)(a) that the Children’s Lawyer be appointed for C.M.L.. Rule 7.04(1) states:
7.04(1) Unless there is some proper person willing and able to act as litigation guardian for a party under a disability, the Court shall appoint,
(a) The Children’s Lawyer, if the party is a minor.
[11] In seeking relief under Rule 7.04(1)(a), D.S.B.’s motion does not address the fundamental prerequisite to an appointment of the Children’s Lawyer, that of a lack of a proper person willing and able to act as litigation guardian for the minor. His affidavit evidence does not address the issue at all.
[12] In submissions, D.S.B. indicated he was prepared to act as Litigation Guardian. This would not be opposed by the other defendants subject to D.S.B. filing an affidavit which provides the evidence set out in Rule 7.03(10).
[13] The two moving defendants, KRRCFS and the Staff on the one hand, and Eveline on the other, also seek relief in respect of C.M.L.’s claim. They did not file any affidavit material in respect of this particular element of the relief they seek. In the notices of motion, both asked to have C.M.L.’s claim against them struck as nullity without the opportunity to amend her pleading, citing the failure to have a litigation guardian named for her or a lawyer named to act on her behalf relying on Rules 7.02 and 15.01. In submissions, both defendants acknowledged that if the court agreed the pleading be struck, that leave should be granted to C.M.L., once she is represented by a litigation guardian, who in turn was represented by counsel, to serve and file an amended pleading.
[14] Also, both moving parties rely on Rules 25.06(1) and 25.11 to strike out the claim on the basis that it does not contain a concise statement of the material facts upon which C.M.L. relies upon for her claim. Eveline also seeks to have the claim against her by C.M.L. dismissed on the basis that it discloses no reasonable cause of action relying on Rule 21.01(b).
[15] The Rules relied upon are as follows:
7.01 PARTY UNDER DISABILITY – (1) Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.
15.01 (1) A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer.
(2) A party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court.
(3) Any other party to a proceeding may act in person or be represented by a lawyer.
21.01 – TO ANY PARTY ON A QUESTION OF LAW – (1) A party may move before a judge,
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
25.06 MATERIAL FACTS – (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.
25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
a) May prejudice or delay the fair trial of the action;
b) Is scandalous, frivolous or vexatious; or
c) Is an abuse of the process of the court.
[16] Following review of the material filed and hearing the submissions of all parties, I am not prepared to grant the relief requested by D.S.B. concerning appointment of the Children’s Lawyer for C.M.L. I do this both because no evidence has been provided that no other person is available to act as litigation guardian and the fact that the Children’s Lawyer was not served with the material for this motion.
[17] In my view, C.M.L. has yet to receive proper representation in this action. The Court must balance the special needs of a person under a disability with the legitimate concerns of the defendants that they be able to fully understand the claims against them and then be required to defend only those claims that represent reasonable causes of action. That balance will be struck by staying C.M.L.’s action until such time as she is properly represented by a litigation guardian, who is represented by counsel who has had the opportunity to amend C.M.L.’s pleading.
[18] Accordingly, it is not appropriate to comment further on the merits of the motions made by the defendants as to the deficiencies of the pleading as presently constituted at least as far as the claims asserted by C.M.L. are concerned. Once proper representation is in place for C.M.L., justice requires that the new litigation guardian be given an opportunity to amend the claim. At that point, the defendants will have leave to make whatever further motions they wish to make regarding the pleadings.
[19] In order to further balance the rights of the respective parties, there will be a time limit on the requirement for C.M.L. to obtain a litigation guardian, who I am ordering to be represented by counsel as is required by Rule 7.05(3). C.M.L. shall have until December 31, 2014, to appoint a litigation guardian, who then has leave to file and serve a fresh as amended statement of claim regarding the claims made by C.M.L. The fresh amended claim shall not be issued by the Court unless it is prepared by a person who is licenced to practice law in Ontario and who is acting for the litigation guardian for C.M.L. In the event C.M.L. does not comply with this timeline, her claim will be deemed to be dismissed on January 1, 2015.
[20] D.S.B. may be appointed as litigation guardian so long as he is represented by counsel and files the necessary affidavit as contemplated by Rule 7.03(10).
The Motions by the Defendants Regarding D.S.B.’s Claim
[21] Both sets of defendants rely on similar lines of attack on the pleading as presently constituted in respect of D.S.B.’s claim. These arguments are divided into two broad categories. The first, cites Rule 21.01(b) and argues that the pleading discloses no reasonable cause of action against the moving defendants. Second, Rules 25.06(1) and 25.11 are relied upon in support of an allegation that the pleading does not contain a concise statement of the material facts upon which the plaintiff relies.
The Rule 21.01(b) argument: Does the pleading disclose a reasonable cause of action?
[22] In dealing with a Rule 21.01(b) motion, the law is well settled. In Sparks v Ontario, [2010] O.J. No. 3330 at paras 8, 9 and 10, Justice Allen provided a useful summary of the law on this point:
Rule 21.01(1)(b)
8 The principles developed to guide decisions on a motion under 21.01(1)(b), are well known:
a. The court is required to accept as true the facts alleged in the pleadings, unless they are patently ridiculous or based on assumptions or speculative conclusions.
b. Unless it is plain and obvious and beyond doubt the pleading discloses no reasonable cause of action and is certain to fail, a pleading will not be struck.
c. The novelty of the cause of action or defence is not grounds for dismissing the claim.
d. In assessing a claim or defence, the pleading must be read generously with allowances for inadequacies due to drafting deficiencies.
e. If the cause of action is founded in law and there is some chance of success then the action should proceed.
[See for instance: Hunter v. Carey Canada, [1990] 2 S.C.R. 959 at pp. 975 and 980 (S.C.C.); Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441 (S.C.C.); Toronto-Dominion Bank v. Deloitte Haskins & Sells (1991), 5 O.R. (3d) 417 at 419 (Gen. Div.); and Web Offset Publication Ltd v. Victory (1999), 43 O.R. (3d) 802 at 803 (Ont. C.A.), leave to appeal ref'd [1999] S.C.C.A. No. 460].
9 Hence the test to strike a claim under Rule 21.01(1)(b) is a strict one posing a difficult burden for the defendant. It is crucial to the application of this rule that the facts alleged in the statement of claim, though they may be sparse, be accepted as true for the purpose of determining whether the claim discloses a reasonable cause of action. The Court of Appeal pushed the limit to say even a germ or a scintilla of a cause of action will suffice to maintain a claim.
10 The Ontario Court of Appeal commented on the importance of that principle:
... in my view, at this stage of the proceedings, the facts alleged in the statement of claim should be taken as true for the purpose determining whether the claim discloses a reasonable cause of action. To do otherwise is effectively to conduct a summary judgment proceeding under Rule 20 without having the sworn evidence of the parties to this litigation as a basis for determining whether there is a genuine issue for trial.
[23] In this matter, D.S.B. alleges negligence on the part of the moving defendants. In order to prove a claim in negligence, a plaintiff must first establish a defendant owed him a duty of care.
[24] KRRCFS and the Staff rely on the decision of the Supreme Court of Canada in Syl Apps Secure Treatment Centre v. B.D., [2007] 3 S.C.R.
[25] In response to the arguments of the KRRCFS and Staff defendants, D.S.B. referred the Court to the recent decision of Justice Morgan in Durakovic v. Guzman, [2013] O.J. No. 675.
[26] Justice Morgan sought to distinguish the cases that have followed Syl-Apps and he clearly articulated his view that the issue of whether or not a child protection agency owed a duty of care to a parent of an apprehended child is a triable issue.
[27] Despite Justice Morgan’s eloquent and detailed decision, I am not prepared to accept that the ratio in Guzman applies in this case for a number of reasons.
[28] My reading of Syl-Apps indicates the declarations by the Supreme Court on the extent of the duty of care made by the Court were categorical.
[29] The plaintiff in Guzman alleged a wrongful discharge of duty, but in order for him to succeed, the duty had to be owed to him in the first place.
[30] Justice Morgan’s decision cites the decision of Justice Parayeski in G.P. v. The Childrens Aid Society of Hamilton, [2011] ONSC 4231.
[31] Thirdly, Justice Morgan’s decision is in conflict with two other Ontario Superior Court decisions dealing with the issue of the duty of care owed by a child protection agency to a parent.
[32] Fourthly, at paragraph 81 of the excerpt from the Guzman decision above, Justice Morgan acknowledges limitations of Syl Apps.
[33] Accordingly, I am persuaded the weight of authority is in favour of the proposition that a child protection agency owes no duty of care to a parent of a child in need of protection.
[34] Accordingly, even taking account of the unfocused and deficient nature of D.S.B.’s pleading, I am in my view that it could not be amended by D.S.B. to remedy the situation to create a reasonable cause of action in these circumstances. D.S.B.’s claim against KRRCFS and the Staff is struck without leave to amend.
The immunity argument
[35] If I am wrong that D.S.B.’s claim does raise a reasonable cause of action, or that Guzman is accepted as the present law of Ontario with regard to the duty of care issue, I will address the other arguments made by the Staff in this matter.
[36] Section 15(6) of the Child and Family Services Act, RSO 1990, c. C.11, provides:
Protection from personal liability
(6) No action shall be instituted against an officer or employee of a society for an act done in good faith in the execution or intended execution of the person's duty or for an alleged neglect or default in the execution in good faith of the person's duty.
[37] D.S.B. alleges the Staff have negligently carried out their duties.
[38] The Staff argue that D.S.B. has not sufficiently plead particulars of bad faith and therefore the pleading does not set forth a reasonable cause of action and should be struck.
[39] D.S.B. insisted his claim clearly indicates an allegation of bad faith against all defendants.
[40] In support of this, D.S.B. relied on the Sparks v. Ontario decision noted above.
[41] As D.S.B. indicated he required disclosure to better particularize his claim, I asked D.S.B. during argument to indicate where in his claim was the circumstantial evidence of bad faith.
[42] Six of the fourteen paragraphs do not relate to KRRCFS or the Staff.
[43] D.S.B. pleading is not sufficient to displace the statutory immunity available to the Staff.
[44] I also find merit in the Rule 25 arguments made by the KRRCFS and Staff defendants.
The Motion to Strike by Eveline
[45] Eveline’s interaction with D.S.B., for which D.S.B. seeks damages, came in her capacity as the Vice-Principal of a secondary school where C.M.L. was a student.
[46] Eveline relies on the decision of the Alberta’s Queen Bench in Elkow v. Sana, 2006 ABQB 851.
[47] Justice Firestone at paragraphs 12 to 14 in Reyes stated:
12 In Elkow v Sana, [2006] A.J. No. 1503, the Court confirmed that while there is a duty of care existing between teachers and students there is no connection that would extend that duty to the individual parents.
13 In Elkow, the Court stated in part as follows at paragraph 24:
In this case even though the Plaintiff as a school principal and the school board might reasonably have foreseen that losses or harm to a parent could result from them carrying out their duties under the School Act there is insufficient proximity between the parent and the Plaintiff and School Board to ground a primary duty of care...
14 As a result, all paragraphs in the Amended Statement Claim which are based on a breach of a duty of care owed by the defendants to the plaintiff are struck because they disclose no reasonable cause of action.
[48] I am persuaded by the logic of Elkow and as adopted by Reyes.
[49] The defendants motions are both allowed in respect of the relief claimed against D.S.B.
Costs
[50] At the commencement of the hearing I asked all parties to give an estimate of the costs they would be seeking if they were successful on the motion.
[51] In these circumstances, costs are awarded against D.S.B. of $500.00 in total. Costs are payable - $250.00 to KRRCFS and $250.00 to Eveline, all payable by D.S.B. forthwith.
[52] Accordingly, order to go as follows:
The file CV-14-004 is to be sealed. Its contents are not to be shown or released to anyone save and except the parties and counsel to the parties.
The claim of C.M.L. in file CV-14-004 is hereby stayed with leave to amend. A fresh as amended statement of claim may be filed. A litigation guardian must be appointed for C.M.L. on or before December 31, 2014. The litigation guardian must be represented by counsel before any further steps are taken in this action.
The litigation guardian for C.M.L. must serve and file an amended statement of claim or a fresh as amended claim on or before December 31, 2014 failing which C.M.L.’s claim will be dismissed on January 1, 2015.
The claim of D.S.B. in CV-14-004 against all defendants save and except Allan Banning is struck out without leave to amend.
D.S.B. shall pay costs of $250.00 to the defendant Kenora Rainy River Child and Family Services forthwith.
D.S.B. shall pay costs of $250.00 to the defendant Eveline O’Flaherty forthwith.
D.S.B.’s motion is dismissed.
The Hon. Mr. Justice F.B. Fitzpatrick
Released: September 29, 2014