CITATION: R.P.1 v. Her Majesty the Queen, 2015 ONSC 2249
COURT FILE NO.: CV-13-490996
DATE: 20150408
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.P.1 and M.P., infants under the age of eighteen years by way of the litigation guardian, R.P.2 and the said R.P.2 personally
Plaintiffs
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, ATTORNEY GENERAL OF ONTARIO, CATHOLIC CHILDREN’S AID SOCIETY OF METROPOLITAN TORONTO, TORONTO DISTRICT SCHOOL BOARD, KELLY MCKEE, MATTHEW SMALL, and TORONTO POLICE SERVICES BOARD
Defendants
Jennifer Mendelsohn, for the Plaintiffs
Carole Jenkins, for the Defendant, Catholic Children’s Aid Society of Toronto
HEARD: April 7, 2015
JUSTICE S. DUNPHY
[1] The present case turns on a narrow question. Can the mother of the children sue a Children’s Aid Society alleging negligence or worse in the conduct of an investigation under the statutory mandate of the CAS pursuant to the Child and Family Services Act, R.S.O. 1990, c. C-11?
[2] As framed, the application is brought under Rule 21.01(1(b) to dismiss the action as against the defendant Catholic Children’s Aid Society of Metropolitan Toronto (“CCAS”). As such, no evidence is admissible on the motion. The plaintiff/respondent filed an affidavit which I have disregarded for purposes of this motion. The affidavit merely made arguments or repeated the allegations in the statement of claim which, of course, are taken as proven for purposes of the motion unless manifestly incapable of proof. It ought not to have been filed, but the error was not material.
[3] The facts are relatively straightforward and will obviously be the subject of litigation down the road. The plaintiffs include two minor children (R.P.1, age 7 at the relevant time and M.P., age 6 at the relevant time) represented by their mother as litigation guardian, as well as the mother R.P.2 in her own right as plaintiff.
[4] On or about October 11, 2011, it is alleged that the children were taken from their mother and their mother was arrested on the basis of statements made by one of the children. It is alleged that the investigation of the complaints of one of the children was negligently undertaken, in particular due to the failure of the defendants to have proper French language translation services available.
[5] The plaintiff was eventually released and after approximately eight months her children were returned to her. I do not mean thereby to minimize in any way the trauma and upset that such an experience may have inflicted upon the mother.
[6] The Statement of Claim alleges that the defendants were “grossly negligent in not carrying out a proper investigation”. The defendants were also allegedly negligent in interviewing the child without a French language translator and collecting erroneous information from the child. The plaintiff mother claims emotional trauma and other damages arising from being arrested and deprived of her children.
[7] There are a large number of what will doubtless by very closely contested factual allegations. The pleading is less than perfect, making bald allegations of malice and sweeping allegations of negligence against all of the defendants together despite their very different roles. When a statute creates immunity for actions other than those undertaken in bad faith, this is not merely a pleading speed bump – the actions of the otherwise immune defendants must be pleaded with specificity and the basis for the allegation of malice or bad faith must be pleaded, not merely the hoped-for conclusion. The plaintiffs have clearly been traumatized by an eight month ordeal and have cast a wide net to describe their claims. Those are all issues for another day.
[8] The Supreme Court of Canada issued an intentionally broad and sweeping ruling in the case of Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 suggesting in the strongest terms that an agency such as the defendant CCAS owes its duties to the children first and foremost and owes no duties to the parents. The possibility for conflict of interest between the overriding duty to a child and an alleged parallel duty to a parent is simply too great, particularly where the parent may, in some cases, be the potential source of danger or risk to the child. Justice Abella wrote (at paras. 20-21):
“to recognize such a legal duty to the family of a child in their care, would pose a real risk that a secure treatment centre and its employees would have to compromise their overriding duty to the child. I also agree with Sharpe J. A. that “the duty of care pertaining to the relationship between children in need of protection and those who are charged with their care should be clearly defined on a categorical basis, rather than being left in a fluid state to be resolved on a case-by-case basis” (para. 74).
I would not, as a result, recognize such a new legal duty. It follows that, in my view, it is “plain and obvious” that the statement of claim discloses no reasonable cause of action against these defendants”.
[9] There have been cases since the Syl Apps case which have sought to limit its scope to agencies providing for care ore treatment of a child already in custody (as opposed to cases relating to the investigation stage). With respect, I cannot agree that the decision can or should be so limited. The statute upon which it is based makes no such distinction nor does logic or the principles of the decision support a narrow, restrictive reading of it. Justice Abella called for a “clearly defined” description of the duty of such workers. There is no fundamental or principled difference between the role of a CAS such as the defendant in this case undertaking an investigation of possible abuse and its role or that of other agencies involved in providing care or shelter once a decision to apprehend has been made. In both cases, the interposition of a parallel duty to parents that may conflict with the overriding duty to the child poses the same risk of conflict and must be rejected for the same reasons.
[10] Justice Morgan in the case of A.D. v. T.G. et al, 2013 ONSC 958 suggested that a distinction ought to be made between cases alleging mistreatment of a child following removal and claims involving negligent investigation (such as the present case). I note that the A.D. case involved other allegations as well, including the independent tort of defamation. As well, Justice Morgan’s attention had not been drawn to two (albeit difficult to locate) decisions of the Court of Appeal dealing with the Syl Apps case that I refer to below. With all due respect to Justice Morgan in the A.D. v. T.G. case, I cannot agree with the distinction he drew in that case.
[11] The Court of Appeal has on at least two occasions approved cases that endorsed the view that a Children’s Aid Society owes no duty of care to the parents of a child at either the investigation or care stages of intervention, although unfortunately the reporting of the cases has not been widely available without some sleuthing.
[12] The first case is D.C.M. v. York Region Children’s Aid Society et al., 2011 ONSC 5635 (S.C.J.), a decision of Justice Fregeau. In D.C.M. there was an investigation of allegations of domestic abuse and violence. Charges were laid and the plaintiff parent’s access rights subjected to allegedly damaging restrictions and supervision. A law suit was brought alleging the York CAS has “breached its duty to him, either negligently or intentionally, to investigate Ms. S.M.’s allegations before it became involved”. In other words, the case alleged a negligent investigation, not unlike the present case. The claim was dismissed by Justice Fregeau as not being tenable at law, citing the immunity accorded CAS officers and employees under s. 15(6) of the CFSA and the fact that “children’s aid societies and their employees and officers do not owe a duty of care to the parents of children in care of the society. The duty is owed to the children, not the parents” (at para. 13). As noted above, the claim in question specifically pleaded negligent investigation. The claim was dismissed without leave to amend. The Court of Appeal upheld the decision of Fregeau J. but with a different style of cause that required some searching to locate (sub nom. Major v. York Region Children's Aid Society, 2012 ONCA 223). The court issued a short endorsement agreeing with the reasons of Justice Fregeau.
[13] In G.P. v. Children’s Aid Society of Hamilton et al., 2011 ONSC 4231, Justice Parajeski’s decision was similarly upheld by the Court of Appeal. The facts were somewhat involved, but involved claims of discrimination and negligent investigation among others. The pleading contained bald allegations of malice and bad faith without particulars. At paragraphs 17 and 18 of the decision, Parajeski J. cited the Syl Apps case finding “the CAS and its employees owe no duty of care to the plaintiff” and that “the CAS and its employees were not obliged to investigate L.D. to the satisfaction of the plaintiff. It is important to recall that this is not an action by the children, and that the plaintiff does not represent them in any way”. I have been provided with a copy of the brief endorsement of the Rosenberg J.A. which approved of this decision by way of an email from the Court of Appeal Clerk’s office. The endorsement of Rosenberg J.A. reads in part: “The moving party claims his cause of action is discrimination not that the CAS and its employees owed him a duty of care. But, his claim must be founded on some duty of care by the CAS and its employees to deal with him in a particular way. There is no such duty of care”. The case was somewhat confusing as well because the plaintiff was out of time for the appeal and brought a motion before Rosenberg J.A. to extend the time for doing so. While meeting the other requirements to succeed in such a motion, the appellant failed to convince the Court that an extension of time was warranted due to the lack of any merit to the intended appeal. Thus the case was not technically upheld on appeal although its reasoning was approved of by a single judge of that Court hearing the motion.
[14] 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.
[15] 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. Instead, she sought to distinguish the cases on the basis of an allegation of breach of statutory duty to provide services in the French language pursuant to s. 2(1) of the CFSA. In my view, nothing in s 2(1) of the Act derogates from the overriding policy considerations underlying the Syl Apps decision. In a city as diverse as Toronto, the CAS’s deal with language barriers affecting children on a daily basis. If, as is alleged, the CCAS investigation in this case was negligent due to failure to utilize French language translators, it does not alter the nature of the allegation which is fundamentally one of conducting a negligent investigation. If the CAS owes no duty of care to parents in relation to investigations, it matters little what the specific allegation of negligence in an individual case might be. Negligence may derive from a hundred sources – failure to secure adequate translation or interpretation resources is but one possible instance of negligence. It does not alter the principle of the matter in my view.
[16] I am of the view that the Syl Apps case is a binding precedent in this case and that, accordingly, I must hold that there was no duty of care owed by the defendant CCAS to the plaintiff mother in relation to the manner of its investigation of the alleged abuse or the manner of its treatment of the child thereafter. Of course I make no such finding as regards the duties owed to the children themselves and the mother continues to act as litigation guardian of the children in their claim against the defendants
[17] Accordingly, I find that the pleaded cause of action of the plaintiff mother as against the defendant CCAS cannot succeed since the CCAS owed her no duty of care. The claim of the mother is struck as against the CCAS without leave to amend. As noted, this decision has no impact upon the claim brought on behalf of the children against the CCAS who will thus remain a party going forward. In the circumstances of this case, I make no order as to costs.
Justice S. Dunphy
Released: April 8, 2015
CITATION: R.P.1 v. Her Majesty the Queen, 2015 ONSC 2249
COURT FILE NO.: CV-13-490996
DATE: 20150408
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.P.1 and M.P., infants under the age of eighteen years by way of the litigation guardian, R.P.2 and the said R.P.2 personally
Plaintiffs
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, ATTORNEY GENERAL OF ONTARIO, CATHOLIC CHILDREN’S AID SOCIETY OF METROPOLITAN TORONTO, TORONTO DISTRICT SCHOOL BOARD, KELLY MCKEE, MATTHEW SMALL, and TORONTO POLICE SERVICES BOARD
Defendants
REASONS FOR DECISION
Justice S. Dunphy
Released: April 8, 2015