ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Aspden v. Family and Children’s Services Niagara, 2015 ONSC 1297
COURT FILE NO.: 2846-14
DATE: 20150630
B E T W E E N:
Tamara Aspden, Brad Aspden, Jacob Aspden by his Litigation Guardian Tamara Aspden and Ethan Aspden by his Litigation Guardian Tamara Aspden
O. Sabo, for the Plaintiffs
Plaintiffs
- and -
Family and Children’s Services Niagara, Heidi Payne, The Regional Municipality of Niagara Police Services Board, and Phil Gavin
C. Jenkins, for Family and Children’s Services and Heidi Payne
D. Thompson, for Regional Municipality of Niagara Police Services and Board and Phil Gavin
Defendants
HEARD: January 26, 2015
Written Submissions: April 10 and May 20, 2015
Leitch J.:
[1] Two motions were heard together. One motion was brought by the defendants, Family and Children’s Services Niagara (“FACS”) and Heidi Payne pursuant to r. 21.01(1)(a) and (b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking an order dismissing the action brought by the plaintiffs Tamara Aspden and Brad Aspden as it discloses no reasonable cause of action against FACS and an order striking the claim against the defendant Heidi Payne on the basis that it is barred by s. 15(6) of the Child and Family Services Act, R.S.O. 1990, c. C-11.
[2] I note that although para. 5 of the Statement of Defence and Cross-claim of the defendants FACS and Heidi Payne states that they owed no duty of care to Tamara, Brad and Jacob Apsden that position was not advanced on this motion and these defendants only asserted that no duty was owed to Tamara and Brad Aspden.
[3] In addition, the defendants FACS and Heidi Payne sought an order transferring this matter to St. Catherines, Ontario. At the hearing of their motions, these defendants advised that they were not pursuing this relief.
[4] The second motion is brought by the defendants, the Regional Municipality of Niagara Police Services Board and Phil Gavin, (the “Police Defendants”) who seek an order pursuant to r. 21.01(1)(b) dismissing the action brought by the plaintiffs Tamara Aspden, Brad Aspden and Ethan Aspden, by his litigation guardian Tamara Aspden, on the basis that it discloses no cause of action against them.
The affidavit evidence filed on these motions
[5] As set out above, the defendants FACS and Heidi Payne brought their motion pursuant to both r. 21.01(1)(a) and (b) and also sought an order transferring the action. They filed an affidavit in support of their motion to transfer. Tamara Aspden and Brad Aspden each filed an affidavit in response to the motion to transfer. In addition, the plaintiffs filed an affidavit putting before the court correspondence from plaintiff’s counsel to defendants’ counsel indicating he would seek full indemnity costs in defending their motions.
[6] No evidence is admissible on a motion under r. 21.01(1)(b) and only with leave under r. 21.01(1)(a). No leave was sought and therefore, I have not considered any of the affidavit evidence filed in dealing with the issues raised on the Rule 21 motions.
The relief requested on these motions
[7] As noted the defendants, FACS and Heidi Payne, brought their motion pursuant to both r. 21.01(1)(a) and (b). Rule 21.01(a) allows parties to move before trial for the determination of a question of law raised by a pleading in an action where the determination of a question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs. Although the motion was stated to be brought pursuant to both r. 21.01(1) (a) and (b) and both rules were cited in their factum, the focus of the factum and the submissions of counsel was on the question of whether or not the pleading disclosed a reasonable cause of action.
[8] In other words, there was no submission made in relation to whether these are appropriate circumstances to determine a question of law, that is, whether there is a duty of care owed by the defendants FACS and Heidi Payne to Brad and Tamara Aspden. It was clear that the relief sought by these defendants was an order dismissing the action brought by the plaintiffs Tamara and Brad Aspden as it discloses no reasonable cause of action.
[9] Therefore, both the motions brought by the defendants will be determined pursuant to r. 21.01(1)(b).
The applicable legal test on these motions to strike pursuant to r. 21.01(1)(b)
[10] The Supreme Court of Canada in Hunt v. Carey Canada Inc., [1990] S.C.R. 95 established the test that must be applied on a motion to strike stating at para. 21:
Assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiffs’ statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat.” Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.
The allegations in the plaintiffs’ statement of claim
[11] As set out above, on these motions the allegations set out in the plaintiffs’ statement of claim are accepted as proven.
[12] In this case, the plaintiffs have alleged in their statement of claim issued March 6, 2014, the following:
That on or about March 6, 2012, FACS became interested in Jacob Aspden based on a school tip. FACS records, subsequently obtained by the plaintiffs, said that the school had concerns about Jacob’s sexualized behaviour and that Jacob’s friend disclosed that Jacob had told him accounts of oral sex between Jacob and his younger brother Ethan. [para. 11 of the Statement of Claim]
The defendant Heidi Payne, who was assigned to the case by FACS, attended at the home of Tamara and Brad Aspden on March 26, 2012, and informed them that Jacob had a conversation on the school bus about oral sex with his younger brother and was overheard by the bus driver as telling another boy he “sucks penises”. [paras. 12 and 13 of the Statement of Claim]
The Aspdens later learned that in fact no such conversation had ever taken place. The conversation the bus driver overheard was between two other boys who were making derogatory comments about Jacob and that Jacob was not even on the bus. [para. 14 of the Statement of Claim]
Tamara and Brad Aspden were informed by Heidi Payne during the March 26, 2012 visit that she was not worried about Jacob but was worried about another boy whom their younger son, Ethan, had talked about and indicated had touched him on several occasions. This other boy was the plaintiffs’ babysitter’s son. [para. 15 of the Statement of Claim]
The Aspdens’ understanding from this meeting with Heidi Payne was that action was to be taken against the other boy and Heidi Payne appeared to be supportive towards Jacob. [para. 16 of the Statement of Claim]
The Aspdens were called by Heidi Payne on March 28, 2012, and advised that the police wished to interview Ethan who was six years old at the time. Detective Phil Gavin ultimately interviewed him on April 3, 2012, for approximately one hour and the Aspdens were left in the dark as to what this interview had revealed, if anything. [para. 17 of the Statement of Claim]
The Aspdens received a call from Officer Gavin on April 4, 2012, and advised that Jacob would be charged and arrested at school on the following day. This came as a complete shock to them and they were led to believe that the police interview of Ethan must have revealed something incriminating against Jacob. [para. 18 of the Statement of Claim]
Jacob’s father offered to take him to the police station himself the following day but Officer Gavin insisted that the arrest take place at Jacob’s school and the father’s request to have Jacob arrested at the police station was only accepted when he threatened to not send Jacob to school. [para. 19 of the Statement of Claim]
On April 5, 2012, when they arrived at the police station, Officer Gavin appeared agitated and angry with the plaintiffs. Jacob was arrested for sexual assault with Officer Gavin escorting Jacob and handcuffing him. Jacob later revealed that while being escorted by Officer Gavin, Officer Gavin said to him “this is where they rape boys like you”. [para. 20 of the Statement of Claim]
The Aspdens allege that Officer Gavin made numerous comments to them in relation to what might transpire in the future which were critical of their parenting ability. [para. 21 of the Statement of Claim]
The Aspdens allege that Officer Gavin stated that the interview with Ethan had revealed that Ethan had been assaulted on multiple occasions in multiple locations by Jacob, including in the Aspden home. The Aspdens would only later learn, upon review of the actual interview, that no such incriminating evidence against Jacob was disclosed by Ethan. During Ethan’s interview, he had repeatedly attempted to talk about sexual abuse by another boy only to be incessantly cut off by Officer Gavin and directed to talk about Jacob. [paras. 22 and 23 of the Statement of Claim]
The Aspdens repeatedly over the next eight months underwent a highly stressful, costly and frustrating battle to have the charges against Jacob dismissed. Throughout this time, FACS, Heidi Payne and Officer Gavin continued to support the charges and presented a real or apparent influence over the proceedings and resisted any attempt to drop the charges or admit any mistakes. Jacob and his father could not live in the family home with Tamara and Ethan. Eventually Jacob was placed in a youth detention facility and, restrictions were placed on the family in relation to communications and visitations. Additionally, Jacob was labelled a sex offender and, did not see Ethan for over five months. Thereafter, Jacob only saw Ethan periodically after the insistence of a therapist, whom the family found and paid. FACS, at one time, announced an intention to place Jacob with Children’s Aid Society wardship, but that intention was subsequently abandoned. As well, Jacob’s attendance at summer camp and enrollment in school was interrupted, interfered with, and subject to numerous restrictions. [paras. 24, 25 and 26 of the Statement of Claim]
The charges against Jacob were formally dropped on November 19, 2012, though FACS required as a condition that a further five months supervision requirement be entered into and FACS continued to investigate and supervise the Aspden family until March 28, 2013, when the file was closed following a final home visit. [paras. 27 and 28 of the Statement of Claim]
The plaintiffs allege that Jacob’s arrest was not justified; the defendants abused their powers in arresting, detaining and interrogating Jacob. [paras. 33 and 34 of the Statement of Claim].
The plaintiffs allege that all defendants were negligent and intentionally failed in their duty to the plaintiffs and were negligent in their investigation of Jacob and intentionally abused their powers, which has resulted in psychological trauma for all of the plaintiffs. [paras. 35 and 38 of the Statement of Claim]
The specific allegations of negligence against FACS and Heidi Payne
[13] In their statement of claim, the plaintiffs allege that once they obtained disclosure of the full FACS file, they found it was riddled with mistakes and inconsistencies. These mistakes and inconsistencies ground the plaintiffs’ allegations of negligence of Heidi Payne and FACS set out in para. 37 of the Statement of Claim as follows:
a. Failing to properly or at all investigate the tip received from Jacob’s school;
b. No interviews being done with anyone other than Ethan;
c. Various inconsistencies and errors in the FACS reports and case notes, including incorrect birthdays and relationships, incorrect teacher’s names, and false information;
d. Several portions of Heidi Payne’s notes appeared to be changed or revised after-the-fact;
e. Inconsistency in the various relief which FACS appeared to seek from the Aspden family regarding supervision, communication, and access;
f. Heidi Payne’s continued involvement with the police investigation and throughout the criminal proceedings;
g. Real or apparent influence from Heidi Payne and FACS on the criminal proceedings and in the refusal to have the charges dropped;
h. Refusal to admit to or acknowledge evident errors in case notes and reports; and
i. Refusals to admit the confusion of abuse by the other boy being incorrectly attributed to Jacob.
The specific allegations of negligence against the Police Defendants
[14] Paragraph 36 of the Statement of Claim alleges that the negligence of the defendants Phil Gavin and the Niagara Police include the following:
a. The defendants arrested and charged Jacob for crimes that they knew or ought to have known he was not guilty of;
b. The defendants arrested Jacob while they knew or ought to have known that there was no reasonable grounds for arrest;
c. The defendants held Jacob in custody at the police station when they knew or ought to have known that there was no reasonable grounds to do so;
d. Failing to do a proper investigation;
e. Failing to disclose the reason for the arrest at the time of the arrest;
f. Relying upon an inaccurate or incomplete transcript of Ethan’s interview;
g. Failing to review the transcript of Ethan’s interview or correct any evident errors in the transcript;
h. Relying upon a misleading interview transcript;
i. Failing to admit to or take any steps to correct mistakes after they were identified;
j. Failure to fully review the police file and the video of the interview;
k. Arresting Jacob without reasonable and probable grounds;
l. Arresting Jacob solely on the word of a FACS worker;
m. Unnecessary and unlawful exercise of authority during Gavin’s interactions with Tamara and Brad, including threats and conduct intended to intimidate the plaintiffs;
n. Insisting on arresting Jacob at school, intentionally seeking to inflict additional harm and embarrassment on the plaintiffs;
o. The unwarranted arrest of Jacob causing the prosecution of the other boy to fail as Jacob could not be used as a credible witness;
p. Misconduct by Phil Gavin systemically ignored; and
q. The defendants, at all material times, acted with total disregard to the emotional and psychological well-being of Jacob, Ethan, Brad and Tamara.
Part A: The Motion by FACS and Heidi Payne
[15] This motion has two parts. Firstly, FACS submits that pursuant to the authority of the Supreme Court of Canada in Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, the claims of Tamara and Brad Aspden (referred to further in this section as the “Plaintiffs”) against FACS must be dismissed because there can be no cause of action against them. They submit, as stated in para. 11 of their factum, that Syl Apps stands for the proposition that a Children’s Aid Society owes no duty of care to parents and only owes a duty of care to the children who come to its attention or within its care. They reference a series of cases, which I will review below, for their submission that it is plain and obvious there is no duty of care owed to a parent when a Children’s Aid Society is conducting an investigation regarding a child.
[16] The position of FACS is that the principles in Syl Apps apply equally to pre-apprehension duties of a Children’s Aid Society such as an investigation, which is an issue in this case. These defendants acknowledge and admit foreseeability but assert that the Plaintiffs’ claim is “stalled” at the proximity and policy stage just as the plaintiffs’ claim in Syl Apps was “stalled” at that point in the legal analysis.
[17] As these defendants emphasize, the fact that harm has been occasioned by the Plaintiffs does not mean that there is a cause of action against them.
[18] Their position is summarized in para. 15 of their factum as follows:
These Defendants were acting in the course of investigation a potential child protection concern [sic]. Any duty of care was owed only to the child who may have been in need of protection. As such no duty of care was owed to the adult Plaintiffs. Their claim cannot be sustained and ought to be struck, without leave to amend.
[19] The position of the Plaintiffs is that it is not plain and obvious that their claims against these defendants cannot proceed. The Plaintiffs submit that they are seeking accountability for the decision of these defendants to remove Jacob from his home and their cause of action is not foreclosed by Syl Apps.
[20] The Plaintiffs submit that the principles in Syl Apps ought to be restricted to its conclusion that no duty of care is owed by a treatment centre to the parent of a child in care and a completely different proximity argument can be made on these facts.
Analysis
[21] In Syl Apps, a child was apprehended by a Children’s Aid Society and subsequently found to be in need of protection. She was then sent to a treatment centre where she was treated by a social worker. The child’s family alleged that the treatment centre and social worker had breached the duty of care owed to the family by treating the child as if she had been physically and sexually abused by the family, thereby negligently depriving the family of a relationship with their child. Therefore the issue for the Court was whether there was a duty of care owed by a treatment centre and its employee to the family of a child in care.
[22] In Syl Apps, the Court observed at para. 22 that because such a duty of care had never before been recognized, the court’s jurisprudence for determining when a new duty of care should be recognized was engaged, as described in paras. 23 and 24 as follows:
The analytic divining rod used by this Court for determining whether a duty of care exists was first proposed in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), adopted by this Court in Kamloops (City of) v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2, and definitively refined in Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79. It was confirmed in Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, 2001 SCC 80, and Childs v. Desormeaux, [2006] 1 S.C.R. 643, 2006 SCC 18.
To determine whether there is a prima facie duty of care, we examine the factors of reasonable foreseeability and proximity. If this examination leads to the prima facie conclusion that there should be a duty of care imposed on this particular relationship, it remains to determine whether there are nonetheless additional policy reasons for not imposing the duty.
[23] These are not circumstances where the Plaintiffs can assert that the alleged duty of care has been recognized. Rather, the FACS defendants contend that the alleged duty has been rejected by the Court in Syl Apps.
[24] As the Supreme Court of Canada made clear in Syl Apps at para. 32, policy is relevant at both the “proximity” stage and the “residual policy concerns” stage of the Anns test.
[25] The Court summarized at para. 34 that in order to establish a duty of care, (1) the harm complained of must have been reasonably foreseeable, (2) there must have been sufficient proximity between the treatment centre and the family such that it would be fair and just to impose a duty of care, and (3) there must be no residual policy reasons for declining to impose such a duty.
[26] At para. 41 the Court considered the “potential for conflicting duties” as the “deciding factor” in its decision not to establish a duty of care:
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.
[27] The Court observed at para. 42 that when a child is placed in the care of the Children’s Aid Society, the society assumes the rights and responsibilities of a parent for the purpose of the child’s care, custody and control, which creates an inherently adversarial relationship between parents and the state.
[28] The Court went further and noted at para. 59 that the conclusion that there is no proximity is reinforced when one considers the fact that the relevant legislation provides a remedy for families seeking to challenge the way their child is treated by a right of appeal or by participating in applications for status review.
[29] In addition, the legislation provides immunity from liability to those working in the child protection field when exercising their duties in good faith. The Court concluded at para. 62 that these immunity provisions lend further support to the conclusion that there is no proximity in the relationship between the family of a child in care and those directed by a court to protect that child’s best interests.
[30] At paras. 63 to 64, the court noted that given its conclusion on the proximity issue that it would not be fair and just to impose a duty of care in favour of a family of a child in care, further assessment was unnecessary. However, the Court went on to note that there was another policy consideration that confirmed that imposing a legal duty of care on the service providers towards the family members of apprehended children would be unwise. At para. 63, the Court noted:
Recognizing such a duty in this context would create the possibility of parallel proceedings, which could lead to a relitigation of matters already determined at the child protection hearing. This would undermine the child protection scheme, result in unnecessary public expense, and inhibit child protection workers from strategies promoting a child’s best interests for fear of subsequent litigation. …
[31] The FACS presented me with a number of cases where Syl Apps has been applied. Firstly, an unreported 2008 decision by Whitten J. in J.W. & S. v. The Catholic Children’s Aid Society of Hamilton & Julia Abel, Court File No. 07-29390 (Ont. Sup.Ct.) (December 1, 2008) where the plaintiffs had alleged that the Children’s Aid Society breached duties to be fair to both the mother and her two sons, to make full and adequate disclosure and to promote the best interests of the two sons and their family. In that case, after a child, who had been found to be in need of protection, alleged he had been assaulted by his mother, the plaintiffs alleged that the defendant social worker failed to properly investigate the allegations of assault, made false allegations with respect to the plaintiff mother, falsely reported the existence of an injury of the child and falsely stated that the police had confirmed that a kick had taken place. As a result, the plaintiff mother was placed on the child abuse registry, lost exposure to her children and was unable to live with her children until the matter was resolved.
[32] Whitten J. found that the facts before him were analogous to those in Syl Apps because there were allegations of misconduct on the part of a parent that caused an investigation. In these circumstances he found that there was no reasonable cause of action by the parent and the statement of claim was struck.
[33] In M.C. v. The Children’s Aid Society of Sudbury and Manitoulin, Divisional Court File No. 937/13, (Ont. Div. Ct.) (January 7, 2014), Gordon J. considered an appeal from a decision of the Small Claims Court and agreed that the Children’s Aid Society did not owe a duty of care to “Mr. C”. It is unclear what the factual circumstances were before Gordon J. but it appears that a child had been found in need of protection and there was an action commenced in the Small Claims Court against the Children’s Aid Society.
[34] In D.S.B. and C.M.L. v. Kenora Rainy River Child and Family Services, 2014 ONSC 5621, Fitzpatrick J. observed at para. 24 that Syl Apps and decisions which have followed it “have clearly held that a child protection agency and its employees owe only a duty of care to children in need of protection and not to the parents of these children. As D.S.B. sued in his capacity as a parent of a child who was apprehended, no duty of care would arise in any event and the claim should be struck out.”
[35] Fitzpatrick J. declined to apply the reasoning of Morgan J. in A.D. v. T.G. et al. (aka Durakovic v. Guzman), 2013 ONSC 958, a case relied on by the plaintiffs. At para. 22, Fitzpatrick J., in interpreting Morgan J.’s reasons in A. D., observed that Morgan J. found that the paramount duty owed by a child protection agency to the child is extended or modified in the event some mistake is revealed in the course of an investigation. Fitzpatrick J. concluded at para. 28 as follows:
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. The case does not say that the paramount duty could somehow shift mid-contact between agency and child to extend to other parties including parents of the child. This issue is precisely what I believe the Supreme Court was seeking to address in its decision.
[36] Fitzpatrick J. noted at para. 30 and 31, that in G.P. v. The Children’s Aid Society of Hamilton, 2011 ONSC 4231 aff’d., 2011 ONSC 5284; K.A.P. v. Toronto C.A.S.¸ 2007 44821; and, C.A.S. Toronto v. A.B., oral decision January 21, 2009, this court found that a child protection agency owes no duty of care to a parent in circumstances like those before him. As a result, he concluded that there was no reasonable cause of action pled by D.S.B.
[37] In G.P., the plaintiff father alleged a breach of duty by the Children’s Aid Society in relation to is investigation of the mother and made, according to the motion judge at para. 20, “bald assertions of bad faith and malice”. The motion judge also found that the plaintiff was re-litigating family court proceedings.
[38] In K.A.P., a plaintiff mother alleged the Children’s Aid Society owed her a duty of care in relation to their conduct respecting her children who had been found to be in need of protection and placed in Society care. It was alleged that the Children’s Aid Society “carried out the taking of [the plaintiffs’ child] in a high-handed, illegal, negligent and improper manner and in doing so acted in bad faith.” (K.A.P., supra, at para. 4). The plaintiff’s claim was struck based on Syl Apps and Somers J. noted the conflict that existed between the duties imposed by statute on a Children’s Aid Society and the wishes and desires of parents.
[39] In C.A.S. Toronto v. A.B., a plaintiff parent alleged the Children’s Aid Society had investigated an allegation that she and her partner had engaged in a domestic dispute in front of their child in bad faith and with gross negligence. The motion judge found that it was plain and obvious that there was no relationship of sufficient proximity between the child protection worker, the Children’s Aid Society and the plaintiff parent to establish a duty of care based on the conclusions in Syl Apps.
[40] The motion judge in C.A.S. Toronto v. A.B. referenced K.M.D. and Children’s Aid Society of the Region of Peel, 2008 O.J. No. 4772, another case relied on by the plaintiffs. In that case, an action against the Children’s Aid Society had been set down for trial. Therefore, the Children’s Aid Society required leave of the court to bring a motion for summary judgment dismissing all allegations against it and alternatively for an order pursuant to r. 21.01(1)(b) dismissing the claim as it disclosed no reasonable cause of action.
[41] The motion judge in K.M.D. noted that the motion by the Children’s Aid Society did not expressly refer to r. 21.01(1)(a). Ultimately the motion judge denied leave to bring the motion noting at para. 25 that “even if the legal question concerning the existence of a duty of care is determined in the defendant’s favour, the scope, the length of trial and its overall parameters remain essentially the same,” in that the action involved malicious prosecution, defamation and an allegation of bad faith. The motions judge concluded it was preferable that the legal issue be determined after the hearing of a full factual record.
[42] In D.C.M. v. York Regional Children’s Aid Society, 2011 ONSC 5635, affirmed 2012 ONCA 233, the plaintiff father alleged that the Children’s Aid Society conspired with his spouse to ensure she retained full control of the children and failed to properly investigate his wife’s allegation of domestic violence. The plaintiff father sought leave to amend his statement of claim pursuant to Rule 26 to allege the Children’s Aid Society owed him a duty to reasonably supervise the conduct of its employees and to institute policies or engage in monitoring activities that would have prevented alleged harm to him.
[43] As noted, the Plaintiffs rely on A. D. v. T.G. et al., where the issue before Morgan J. was whether the Children’s Aid Society was accountable to one of the parents who had been denied access to his children after the Children’s Aid Society investigated complaints made by his former spouse that he was involved in terrorist activities. The plaintiff father had been arrested on criminal charges in relation to the same allegations and was eventually acquitted. The plaintiff father alleged that the Children’s Aid Society negligently relied on false allegations of terrorist connections made by the police and his former spouse. Morgan J. framed the issue before him, in para. 1, as the question of whether a parent can ever hold a Children’s Aid Society to account for wrongful discharge of its statutory duties or, as a matter of policy, must a parent’s injuries remain uncompensated as collateral damage if the child itself does not sue.
[44] Morgan J. reviewed various cases that had distinguished Syl Apps and came to the following conclusions at paras. 90, 91, 94 and 95:
In short, the Syl Apps case speaks to immunity for certain professionals caring for children in special contexts. It does not provide blanket immunity for CAS-type organizations in all contexts in which they touch people’s lives.
The allegation here is that upon learning that the terrorism accusations were false, and upon learning the source of those allegations, the CAS defendants failed to correct their file; instead, they continued to act on the false allegations and failed to right the wrong with which their intervention began. This context is significantly different from Syl Apps and its prodigy. I can think of no principled basis on which to extend immunity to the internalized bias and wrongful discharge of duty suggested by the pleading and evidentiary record before me. Any such extension would risk interpreting the Syl Apps immunity as a form of impunity.
There is little doubt that once one factors out an immunity rule, there is no lack of proximity between the CAS and a parent. A parent is not a distant claimant seeking compensation for secondary damage beyond the direct damage caused by the defendant. Rather, as the Supreme Court acknowledged, a parent in CAS-instigated child protection proceedings is in the direct line of fire.
The very reason for sometimes granting immunity — the “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” [Syl Apps, para. 41] — speaks to the foreseeability and proximity of the parent. In the absence of an immunity doctrine, ordinary foreseeability and proximity principles would establish that when the CAS intervenes in a child protection matter it owes a duty of care to, inter alia, a parent. At the very least, this raises a genuine issue requiring a trial.
[45] Morgan J. referenced the decision of the British Columbia Court of Appeal in H. (RG) v. British Columbia, 2010 BCCA 220, which followed a further decision of the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, and of course also considered Syl Apps.
[46] According to the British Columbia Court of Appeal in H.(RG), at para. 48, “the deciding factor” in the court’s decision in Syl Apps “made at the proximity stage of the analysis, was the potential for creating a ‘serious and significant conflict’ with the transcendent statutory duty of [child protection authorities] to promote the best interests, protection and well-being of the children in their care.” and “the court emphasized the need to avoid fettering that overarching mandate by imposing any corresponding duty to family members which, they cautioned, could result in a “chilling effect” on social workers, who may hesitate to act in pursuit of the child’s best interests for fear that their approach could attract criticism – and litigation – from the family.”
[47] Ultimately the Court in H.(RG held at para. 49 that they would not “simply extend the ruling in Syl Apps to any relationship that involves a child protection worker, thereby disposing of the present action and precluding the possibility of any duty being recognized other than to the child. Different relationships will inevitably raise different considerations, and each warrants a fresh analysis sensitive to those considerations [referencing Hill].”
[48] In H. (RG), as set out at para. 50, the relationship at issue was not between child protection authorities and family members of the child in care as was the case in Syl Apps but between a society social worker and an employee of a contracted agency. The court declined to impose a private law duty of care on the social worker in favour of persons whose background he or she must review for child safety concerns as that would interfere with their ability to discharge their statutory duty. As the court expressed at para. 53, a social worker should not feel torn between her paramount obligation to the child and an ancillary duty to consider the employment status of those who seek to care for them. Accordingly, imposing a duty of care on [the social worker] in these circumstances poses precisely the risk for inherent conflict that was found to be determinative by the Supreme Court of Canada in Syl Apps. There is simply no basis to distinguish Syl Apps in this regard.
[49] After this motion was heard, I was referred to two further recent decisions of this court and received a further written submission from plaintiffs’ counsel.
[50] In Irish v. DCAS, 2015 ONSC 1721, Lack, J. concurred with Fitzgerald J. in D.S.B and found the decision in A. D. “an anomaly” concluding at para. 22:
It is incongruous with the underlying ratio in Apps and it is contrary to the weight of authority in the Superior Court in this province, which includes two decisions upheld by the Ontario Court of Appeal, and the rulings of the Court of Appeal are binding. The law is settled that a child protection agency does not owe a duty of care to third parties in exercising its child protection mandate under the Child and Family Services Act and that includes in conducting investigations of child protection concerns.
[51] In Pereira (Litigation Guardian of) v. Ontario, 2015 ONSC 2249, the issue was whether a mother of children can sue a Children’s Aid Society alleging negligence in the conduct of an investigation under the statutory mandate of the CAS pursuant to the Child and Family Services Act.
[52] Dunphy J. referred in particular, to DCM and G.P., noting these decisions were affirmed on appeal, and concluded as follows at paras. 14 and 15:
There are a number of other cases which have taken a very clear position that no distinction is to be drawn regarding the duty of a CAS at the investigation stage as contrasted with its duties at the care and custody stage of intervention which the Syl Apps decision expressly dealt with. These are summarized in the recent case of Irish v. DCAS, 2015 ONSC 1721 released March 10, 2015. I agree with the reasons of Justice Lack in Irish and do not propose to repeat the able summary of recent jurisprudence found in that case here.
The plaintiff’s counsel acknowledged that the Irish case appeared to have turned the tide and she no longer sought to argue the distinction suggested in the A. D. v. T.G. case that a duty of care was generally owed to parents by CAS’s at the investigation stage…
[53] As the Plaintiffs emphasize, all of the cases relied on by the FCAS, including Syl Apps, are cases where children have been found to be in need of protection, the Children’s Aid Society have investigated the parents and it has been the acts or omissions of the parents that have caused their children to be removed from their care.
[54] In my view, it is not clear from Syl Apps and the cases applying it’s reasoning that the duty of care alleged by the Plaintiffs has been rejected. As a result, I turn to the question whether it is plain and obvious at this stage of the proceeding that the plaintiff cannot succeed in establishing a duty of care as alleged in accordance with the Anns test.
[55] As previously noted, it is not contentious that the harm complained of by the Plaintiffs was reasonably foreseeable. The contention is whether there was sufficient proximity between FACS and Jacob’s parents such that it would be fair and just to impose a duty and whether there are residual policy reasons for declining to impose such a duty.
[56] As previously reviewed, the Supreme Court of Canada in Syl Apps declined to impose a duty of care on the relationship between the parents of a child in care and that child’s court-ordered service providers because of the genuine potential for serious and significant conflict (Syl Apps, supra, at para. 41 ) and the inherently adversarial relationship between parents and state (Syl Apps, at para. 42). The Court found there was no proximity in the relationship and furthermore, policy considerations confirmed that imposing a legal duty of care on the service provider towards the family members of apprehended children would be unwise. In addition, the Court expressed concern about re-litigation (Syl Apps, at para. 63).
[57] In para. 6 of its Statement of Defence and Cross-claim, FACS states that it received a referral regarding a concern that Ethan may be a child in need of protection. The Plaintiffs allege that Jacob came to the attention of FACS because of a school tip respecting Jacob’s conduct. In any event Jacob ultimately was a “target” of police investigation. Neither Jacob or Ethan were children in the care of FACS. FACS made no application to the court in relation to Jacob or Ethan.
[58] I was not referred to any provision of the Children and Family Services Act other than s. 15(6), however, it is appropriate to refer to the purpose of the Act as set out in s. 1(1) and (2):
1. (1)The paramount purpose of this Act is to promote the best interests, protection and well-being of children.
(2)The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are:
To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.
To recognize that children’s services should be provided in a manner that,
i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,
ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,
iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and
iv. includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate.
To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.
To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.
and the functions of a children’s aid society as set out in s. 15(3):
(3) The functions of a children’s aid society are to,
(a) investigate allegations or evidence that children who are under the age of sixteen years or are in the society’s care or under its supervision may be in need of protection;
(b) protect, where necessary, children who are under the age of sixteen years or are in the society’s care or under its supervision;
(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.
[59] With respect to the question of whether there is sufficient proximity between FACS and Jacob’s parents such that it would be fair and just to impose a duty of care, it is significant that the duty of care alleged in this statement of claim – that is, the duty of care to properly investigate alleged sexual conduct by their child - does not conflict with the overarching statutory or public duty, to use the words of the Supreme Court of Canada in Syl Apps at para. 28. Indeed, the allegation of the Plaintiffs is that FACS acted outside its child protection mandate. This is also relevant to the requirement that there must be no residual policy reasons for declining to impose such a duty of care.
[60] In other words, the facts which were the “deciding factor” in the decision of the Supreme Court of Canada in Syl Apps not to establish a duty of care do not exist here.
[61] To again use the language of the Court in Syl Apps at para. 28, this proposed duty of care does not prevent the FACS from effectively discharging its statutory duties; nor does it interfere with its paramount duty to Jacob and Ethan.
[62] In Hill, McLachlin C.J.C., writing for the majority stated at para. 29:
The most basic factor upon which the proximity analysis fixes is whether there is a relationship between the alleged wrongdoer and the victim, usually described by the words “close and direct”. This factor is not concerned with how intimate the plaintiff and defendant were or with their physical proximity, so much as with whether the actions of the alleged wrongdoer have a close or direct effect on the victim, such that the wrongdoer ought to have had the victim in mind as a person potentially harmed.
[63] Further at para. 31 quoting Cooper, she observed that:
The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant, for example expectations, representations, reliance and the nature of the interest engaged by that relationship.
[64] Here, there is no adversarial relationship between the Plaintiffs and the Children’s Aid Society. The stated purposes of the Child and Family Services Act must also be considered. In particular, that so long as they are consistent with the best interests protection and well-being of children, a child’s need for continuity of care and for stable relationships are to be respected, the least disruptive appropriate course of action is to be considered and the autonomy and integrity of the family unit should be supported wherever possible, I am satisfied that there is sufficient proximity in the relationship between the Plaintiffs and the Children’s Aid Society that the Plaintiffs’ claim should not be struck at this stage..
[65] In addition, there is no other remedy for the Plaintiffs here. The Court noted in Syl Apps, that its conclusion that there was no proximity between the parties was reinforced by the fact that the Child and Family Services Act provides a remedy for families seeking to challenge the way their child is being treated ( para. 59). Unlike the circumstances in Syl Apps, there was no application for the Plaintiffs to participate in.
[66] I note also that the lack of remedy was also an important fact in Hill where at para. 35, after finding that the “critical personal interest” of the suspect in the conduct of an investigation supported a finding of a proximate relationship giving rise to a duty of care, McLachlin C.J.C. noted that “the existing remedies for wrongful prosecution and conviction are incomplete and may leave a victim of negligent police investigation without legal recourse …to deny a remedy in tort is, quite literally, to deny justice.”
[67] Finally, there are no residual policy reasons to decline to impose a duty of the nature identified by the Court in Syl Apps. If the proposed duty is ultimately recognized, it would not create the possibility of parallel proceedings which could lead to re-litigation of matters already determined at the child protection hearing (para. 63).
[68] It is not plain and obvious by virtue of Syl Apps, and the cases presented by the FACS where the reasoning in Syl Apps has been applied, that the Plaintiffs’ claim discloses no reasonable cause of action. To put it another way, and to again paraphrase the language of Hunt v. Carey Canada Inc., at this stage I cannot conclude that there is no chance that the Plaintiffs might succeed.
The additional position of the Defendant Heidi Payne
[69] Section 15(6) of the Child and Family Services Act provides that no action may be instituted against an employee of a Children’s Aid Society for an act done in good faith in the execution or intended execution of that person’s duty or for an alleged neglect or default in the execution in good faith of the person’s duty.
[70] It is asserted on behalf of Heidi Payne that in the Statement of Claim as presently drafted there is no bad faith alleged and such allegations are necessary to maintain an action against her. Although the motion, sought an order dismissing the action against Ms. Payne, it was acknowledged at the hearing of the motion that if the claim against her was struck, the plaintiffs should be granted leave to amend their pleadings.
[71] On the other hand, the plaintiffs submit that they have properly pled a claim of bad faith against Ms. Payne. Specifically, the plaintiffs submit that they have pled, as described as in para. 58 of their factum, that several portions of Ms. Payne’s notes appeared to be changed or revised after the fact; she had continued involvement in the police investigation and throughout the criminal proceedings and had a real or apparent influence on the criminal proceedings and in the refusal to have the charges dropped. Furthermore she refused to admit to, or acknowledge, evident errors in the case notes and reports and she intentionally abused her power and deliberately attempted to protect herself and FCAS officers.
[72] On an analogous motion in Sparks (litigation guardian of) v. Ontario, 2010 ONSC 4234, the Court addressed pleadings which alleged bad faith conduct and commented at paras. 23-24 that deciding whether or not a claim discloses a cause of action in bad faith should be governed by the following principles: a) reckless conduct can amount to bad faith; b) bad faith can be inferred by inexplicable conduct; c) bad faith can be presumed from a fundamental breakdown of the orderly exercise of authority; and, d) where a victim is unable to present direct evidence of bad faith, no more is required than the introduction of facts that amount to circumstantial evidence of bad faith.
[73] I agree with the plaintiffs that the allegations in the para. 37 d, f, g, h, and i of the statement of claim allege intentional and bad faith conduct beyond mere negligence.
[74] Accordingly, I am not inclined to strike the plaintiffs’ claim against Ms. Payne at this stage.
Part B: The motion by the Police Defendants
[75] The Police Defendants acknowledge that they owed Jacob, the suspect under investigation, a duty of care. The seminal authority recognizing the tort of negligent investigation is Hill, in which, as earlier reviewed, the Supreme Court of Canada held that police owe a duty of care in negligence to suspects being investigated, noting that to deny such remedy in tort would equate to a denial of justice.
[76] However, the Police Defendants submit that there is no private law duty of care owed by them to the parents and brother of a person charged. These defendants submit that s.1 and s. 42 of the Police Services Act, R.S.O. 1990, c. P. 15, prescribe the legal duties of a police officer and all statutory and common law duties are owed to the public at large and not to specific individuals. These statutory provisions provide as follows:
Police services shall be provided throughout Ontario in accordance with the following principles:
The need to ensure the safety and security of all persons and property in Ontario.
The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.
The need for co-operation between the providers of police services and the communities they serve.
The importance of respect for victims of crime and understanding of their needs.
The need for sensitivity to the pluralistic, multiracial and multicultural character of Ontario society.
The need to ensure that police forces are representative of the communities they serve.
(1) The duties of a police officer include,
(a) preserving the peace;
(b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention;
(c) assisting victims of crime;
(d) apprehending criminals and other offenders and others who may lawfully be taken into custody;
(e) laying charges and participating in prosecutions;
(f) executing warrants that are to be executed by police officers and performing related duties;
(g) performing the lawful duties that the chief of police assigns;
(h) in the case of a municipal police force and in the case of an agreement under section 10 (agreement for provision of police services by O.P.P.), enforcing municipal by-laws;
(i) completing the prescribed training.
(2) A police officer has authority to act as such throughout Ontario.
(3) A police officer has the powers and duties ascribed to a constable at common law.
[77] The Police Defendants also reference case law for the proposition that the statutory and common law duties of police officers are owed to the public at large, and not to particular individuals (see R. v. Sanderson, 2003 20263 (ON CA), [2003] O.J. No. 1481 (C.A.); Project 360 Investments Ltd. (c.o.b. Sound Emporium Night Club v. Toronto Police Services Board, 2009 36380 (ON SC), 2009 O.J. No. 2473 (S.C.) and Haggerty v. Rogers, 2011 ONSC 5312).
[78] In addition, the Police Defendants submit that insufficient particulars were pleaded for these defendants to understand the nature of the duty of care they are alleged to owe to the minor’s parents and brother and whether that duty was breached. They submit that the pleadings relate to the alleged negligent investigation of allegations against a minor, a malicious prosecution and wrongful arrest and false imprisonment of a minor and a veiled allegation of damages.
[79] As these defendants note, they had a positive obligation pursuant to s. 42 of the Police Services Act to investigate the allegations against Jacob.
[80] In order to find that the Police Defendants owe a private duty of care to Jacob’s parents and brother, the Anns test described above must be applied.
[81] As was the case in relation to the FACS defendants, there is no issue with respect to foreseeability of harm, but the contentious issue is whether there was a sufficiently close relationship between the suspect’s family and brother and the Police Defendants justifying the imposition of a duty of care and whether there are policy considerations which ought to negate or limit the scope of the duty of care, the class of persons to whom it is owed or the damages to which a breach may give rise (see Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643 at para. 11).
[82] The Police Defendants assert that there is no relationship between an investigating officer and the parents of a minor who is the subject of an investigation. They note that here the parents were not charged and there was never any threat that they would be charged. It was submitted on behalf of the Police Defendants that police officers cannot be found to owe a duty to parents or anyone else close to an alleged perpetrator.
[83] Furthermore, the Police Defendants submit that even if proximity is established, policy considerations support their position. In relation to this argument, these defendants referenced, Cooper v. Hobart, 2001 SCC 79, 2001 SCJ 76, at para. 54, and submitted that if a duty of care was recognized in favour of members of an alleged perpetrator’s family, this would raise the prospect of indeterminate liability, which is a policy consideration weighing against the imposition of a duty of care.
[84] The plaintiffs referred me to Castle v. Ontario, 2014 ONSC 3610, in which, Lederman J. on a Rule 21 motion declined to strike a claim by plaintiffs, who were the family of a victim, for damages against the Ontario Provincial Police in relation to the death of their family member. He found that it was not plain and obvious that the duty of care alleged by the plaintiffs had been rejected by the courts.
[85] The plaintiffs submit on this motion that the Castle plaintiffs faced a more difficult challenge on the foreseeability and proximity test than they do. In Castle, it could be argued that the police had little control over the actions of a third party criminal, whereas here the pleading relates to the actions of the Police Defendants in the conduct of their investigation and their decision to charge and arrest Jacob.
[86] However, the Police Defendants assert that Castle is of no assistance to the plaintiffs. I agree with the Police Defendants in relation to the precedential value of Castle. The facts before the court in Castle are distinct from the circumstances here. The duty asserted in Castle - a duty to a victim known to the police - is much different than the duty being asserted here.
[87] Most significantly, the Castle plaintiffs brought their claim pursuant to s. 61 of the Family Law Act, R.S.O. 1990, C. F. 3. Therefore, unlike Jacob’s family they were not obliged to establish a duty of care was owed to them. Instead, they were only obliged to establish a duty of care was owed to their family member, the victim.
[88] Further, with respect to the proximity issue, Lederman J. concluded at para. 45 that the extent to which police knew that an individual posed a danger to the victim was a factual issue that ought to be explored to determine if the OPP`s knowledge was sufficient to ground a duty of care. He observed further at para. 51 that confining a duty of care to victims (or their families), who have a special relationship of proximity to police that is based on knowledge of, or close and direct interaction with, the victim would address the concerns of indeterminable liability.
[89] I turn next to a further consideration of Hill and the plaintiffs’ submission that the concern expressed by the Court in Hill that denial of a tort remedy would equate to a denial of justice applies equally to the family of a child who is the subject of a police investigation. They allege that the plaintiffs here have been directly affected and damaged by the charge against Jacob, as if they themselves had been accused of the offence. The plaintiffs point to the allegations in their statement of claim with respect to alleged statements made by Officer Gavin, in essence blaming Jacob’s parents for the alleged sexual abuse. The plaintiffs assert, as they described in para. 29 of their factum, that both the effects of the criminal charges, and in particular the arrest of their son Jacob, including the division in the family and the restrictions of contact and communications, affected them and Jacob’s younger brother just as much, or more, as it did the formal “suspect” Jacob.
[90] They submit that where the police owe a duty to a minor as a suspect, it is not plain and obvious that the police are not in sufficiently close proximity to the parents of the minor and that it is unfair to require the police to be mindful of the legitimate interest of the parents where the charge, which is being investigated, is that the minor has abused another of their children.
[91] However, I disagree with the plaintiffs’ submission that based on Hill, the plaintiffs have a cause of action under the tort of negligent police investigation with the family being akin to suspects. In other words, the plaintiffs cannot take the position that the duty of care they allege has been recognized. As a result, it must be determined whether it can be concluded at this pleading stage that it is plain and obvious that there is no duty of care as alleged by the plaintiffs considering the Anns test.
[92] In my view, the plaintiffs’ claim against the Police Defendants fails at the proximity stage. As directed by the Supreme Court of Canada, and as previously referenced, the proximity analysis at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant for example expectations, representations, reliance and the nature of the interest engaged by that relationship (para. 31 of Hill citing paras. 30 and 34 of Cooper.)
[93] The relationship between Officer Gavin and the family of a minor suspect is not “close and direct” to use the words of the Court in Hill. It cannot be concluded that when undertaking the investigation the police ought to have had Jacob’s family in mind as persons potentially harmed by police actions; unlike the plaintiff in Hill, their freedom, reputation and how they would spend a good portion of their life was not at stake.
[94] I agree with the position of the Police Defendants, as set out in para. 19 of their factum, that the members of Jacob’s family have a relationship to the police authority only in the sense that they are observers of portions of the investigation into the allegations against Jacob. I am satisfied that it is plain and obvious that the claim of Jacob’s family members against the Police Defendants cannot succeed. As a result, the motion by the Police Defendants is granted.
Costs
[95] I ask that counsel endeavor to resolve the issue of costs. However, if necessary, counsel may file brief written submissions on costs with the next 45 days.
“Justice L. C. Leitch”
Justice L.C. Leitch
Released: June 30, 2015
CITATION: Aspden v. Family and Children’s Services Niagara, 2015 ONSC 1297
COURT FILE NO.: 2846-14
DATE: 20150630
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tamara Aspden, Brad Aspden, Jacob Aspden by his Litigation Guardian Tamara Aspden and Ethan Aspden by his Litigation Guardian Tamara Aspden
Plaintiffs
AND
Family and Children’s Services Niagara, Heidi Payne, The Regional Municipality of Niagara Police Services Board, and Phil Gavin
REASONS for judgment
Leitch J.
DATED: June 30, 2015