Evtropova v. Minister of Education, 2015 ONSC 3321

NEWMARKET COURT FILE NO.: CV-13-116621

DATE: 20150525

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

EKATERINA EVTROPOVA, Litigation Administrator of the Estate of EVA RAVIKOVICH, deceased, EKATERINA EVTROPOVA, personally, VYCHESLAV RAVIKOVICH, GALINA MECHTCHERIAKOVA and LEONID YUZEFOVICH

Plaintiffs

– and –

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, REPRESENTED BY THE MINISTER OF EDUCATION FOR THE PROVINCE OF ONTARIO

Defendants

J. Patrick Brown and Josh Nisker, for the Plaintiffs

Sara Blake and Sandra Nishikawa, for the Defendant

HEARD: March 5, 2015

RULING ON MOTION

VALLEE J.

Nature of the Motion

1The defendant (the “Ministry”) brings this motion to strike the plaintiffs’ claim alleging that it discloses no reasonable cause of action. The plaintiffs defend the motion on the grounds that there are genuine legal and factual uncertainties that cannot be answered at the pleadings stage. It is not plain, obvious and beyond a reasonable doubt that the plaintiffs cannot succeed. A trial based on a complete record is required.

Background

2In July, 2013, Eva Ravikovich, who was two years old, died while at an unlicensed private-home daycare in Vaughan. Her family members, including one who acts as the litigation administrator of Eva’s estate, bring this action against the Ministry, alleging that before Eva’s death, the Ministry received a number of complaints about the daycare. The complaints were generally that more than five children were being cared for at the private-home daycare. The complainants observed 13 children, 15 children and 10 children at the unlicensed daycare on three different occasions between May 7, 2012 and November 16, 2012.

3The Ministry staff attended and viewed the premises from the outside. Subsequently, the Ministry sent a letter to the daycare dated November 26, 2012 stating that it was operating in contravention of the Day Nurseries Act, R.S.O. 1990 c.D.2 because it was unlicensed and more than five children under 10 years of age were being cared for. The Ministry did not carry out any follow up with respect to its letter.

4On December 21, 2012, the Ministry received another complaint that 17 children were being cared for at the daycare. Approximately seven months later Eva, who was being cared for at this daycare, died.

5The plaintiffs state that the Ministry owed a duty of care to the plaintiffs. On its website, the Ministry stated that it would investigate and follow up on complaints about a person who may be providing care to more than five unrelated children under 10 years of age without a license. The website also stated that the Ministry may prosecute such providers. The plaintiffs state that they relied on these representations. The Ministry knew or ought to have known that the daycare was operating in contravention of the law. It took no steps to ensure Eva’s safety.

6The Ministry states that it had no duty of care in the circumstances because there was no proximate relationship between the Ministry and Eva’s parents. Her death could not have been foreseen from the fact that more children were at the daycare than permitted by law. The Day Nurseries Act does not impose a private duty of care.

Issue

1. Is it plain, obvious and beyond a reasonable doubt that the plaintiffs’ claim cannot succeed?

Legal Principles to be Applied on a Motion to Strike a Claim

7The court must accept the allegations of fact as though they have been proved unless they are patently ridiculous. The Statement of Claim must be read generously. The moving party must show that it is plain, obvious and beyond a reasonable doubt that the plaintiffs’ claim cannot succeed. A claim should not be dismissed simply because it is a novel one. If there are genuine legal or factual uncertainties that cannot be answered at the pleading stage, they must await a trial based on a complete record (see Taylor v. Canada (Attorney General), 2012 ONCA 479 para. 22).

The Day Nurseries Act states in section 11(1) that a license is required if care is being provided in a private home to more than five children under the age of 10. Anyone who operates a day nursery without a license is guilty of an offence and may be subject to a fine of $2,000 per day. The Director (an employee of the Ministry appointed by the Minister as a Director for all or any of the purposes of the Act) may apply to the Superior Court of Justice for injunctive relief if a day nursery is operated where more than five children under the age of 10 are cared for, without a license.

The Ministry’s Position

8The Ministry states that this claim cannot succeed for several reasons. The Ministry had no duty of care toward Eva’s parents. If a duty exists, it must be found in the relevant statute (see Cooper v. Hobart, 2001 SCC 79, [2001] S.C.J. No. 76, para. 30). The Day Nurseries Act does not impose a duty of care. The Ministry has no duty with respect to unlicensed daycares. Any enforcement is discretionary.

9The fact that the Ministry makes a public statement on its website and members of the public rely on it does not create the proximity required for a duty of care to arise. The Ministry states that there was no proximity between the Ministry and Eva’s parents. The plaintiffs must establish the necessary proximity in order for the claim to succeed. (see Taylor v. Canada (Attorney General), 2012 ONCA 479, para. 71) The complainants did not include Eva’s parents.

10The Ministry also states that Eva’s death was not reasonably foreseeable as a consequence of the Ministry’s actions.

11The Ministry argues that there are residual policy considerations outside of the relationship that negate the imposition of a duty of care. A decision made not to deal with an unlicensed daycare is a core policy decision. Even if a prima facie duty of care can be established, this duty would be negated for policy reasons because the conduct in issue is quasi-judicial in nature. The Ministry relies on Sivertson (Guardian ad litem of) v. Dutrisac, [2011] B.C.J. No. 810, para. 60 which the court states:

In my view, any private law duty of care which may arise in this case would be negated for overriding policy reasons as in the Cooper case. This is because (i) the licensing officers were exercising both policy and quasi-judicial functions such that any decision required the balancing of both public and private interests. The Director must act fairly or judicially in removing an operator’s license and this is potentially inconsistent with a duty of care to children and families; (ii) the Director must make difficult discretionary decisions in an area of public policy. His decisions are made within the limits of the powers conferred on him in the public interest; and (iii) if there was a private duty of care owed by the Director to the children and parents, it would effectively create an insurance scheme for all those children attending licensed daycares within the Province, at great costs to the taxpaying public. As the court held in Edwards, there is no indication here that the Legislature intended that result. Indeed the statutory immunity from liability provision suggests the contrary.

12The Ministry states that there are no cases in which a court has found a private law duty of care with respect to a failure to enforce. If a Director receives a complaint about an unlicensed private-home daycare, the Director has no obligation to do anything. Tax payers should not be insurers of private daycares. This would result in indeterminate liability.

The Plaintiffs’ Position

13The Ministry has made certain public statements on its website. These representations do not stand alone to create a duty of care; however, they impact on the proximate relationship issue.

14The Minister came into a proximate relationship with the daycare because it received four complaints. The Ministry sent a letter to the daycare operator. Accordingly, the Ministry was engaged. Proximity existed between the Ministry and Eva. Her parents and grandparents are advancing derivative claims.

15After Eva’s death, the Ministry obtained a search warrant, attended at the daycare and found 29 children and 14 dogs. The Ministry made a court application and obtained an injunction to shut down the daycare. This suggests that the Ministry had authority to take steps where required.

16The plaintiffs rely on Knight v. Imperial Tobacco Canada Limited, 2011 SCC 42, 2011 S.C.C. 42 at paras. 43-47. The court states:

43A complicating factor is the role that legislation should play when determining if a government actor owed a prima facie duty of care. Two situations may be distinguished. The first is the situation where the alleged duty of care is said to arise explicitly or by implication from the statutory scheme. The second is the situation where the duty of care is alleged to arise from interactions between the claimant and the government, and is not negated by the statute.

44The argument in the first kind of case is that the statute itself creates a private relationship of proximity giving rise to a prima facie duty of care. It may be difficult to find that a statute creates sufficient proximity to give rise to a duty of care. Some statutes may impose duties on state actors with respect to particular claimants. However, more often, statutes are aimed at public goods, like regulating an industry (Cooper), or removing children from harmful environments (D. (B.)). In such cases, it may difficult to infer that the legislature intended to create private law tort duties to claimants. This may be even more difficult if the recognition of a private law duty would conflict with the public authority’s duty to the public: see, e.g., Cooper and D. (B.). As stated in D. (B.), “[w]here an alleged duty of care is found to conflict with an overarching statutory or public duty, this may constitute a compelling policy reason for refusing to find proximity” (at para.; see also Fullowka v. Royal Oak Ventures Inc., 2010 SCC 5, [2010] 1 S.C.R. 132 (S.C.C.), at para. 39).

45The second situation is where the proximity essential to the private duty of care is alleged to arise from a series of specific interactions between the government and the claimant. The argument in these cases is that the government has, through its conduct, entered into a special relationship with the plaintiff sufficient to establish the necessary proximity for a duty of care. In these cases, the governing statutes are still relevant to the analysis. For instance, if a finding of proximity would conflict with the state’s general public duty established by the statute, the court may hold that no proximity arises: D. (B.); see also Heaslip Estate v. Mansfield Ski Club Inc., 2009 ONCA 594, 96 O.R. (3d) 401 (Ont. C.A.). However, the factor that gives rise to a duty of care in these types of cases is the specific interactions between the government actor and the claimant.

46Finally, it is possible to envision a claim where proximity is based both on interactions between the parties and the government’s statutory duties.

47Since this is a motion to strike, the question before us is simply whether, assuming the facts pleaded to be true, there is any reasonable prospect of successfully establishing proximity, on the basis of a statute or otherwise. … [Emphasis added]

17The plaintiffs state that personal contact is not required for a specific interaction in order to establish proximity. They rely on Taylor v. Canada (Attorney General), 2012 ONCA 479 paras. 80-91 in which the court stated a prima facie duty of care can exist where,

First the facts demonstrate the regulator and the individual that is distinct from and more direct than the relationship between the regulator and that part of the public affected by the regulator’s work. Second, the statutory public duty is consistent with the existence of a private law duty of care owed to our individual plaintiff.

18The plaintiffs state that proximity is a concept with cannot be reduced to a list. Regard must be had to the whole situation. The complaints, the attendance, the letter, and the fact that the Ministry did nothing after sending the letter must be considered.

19The plaintiffs also rely on Jane Doe v. Metropolitan Toronto (Municipality) 1990 CarswellOnt 442 (C.A.). In August, 1986, Ms. Doe was confronted by an intruder in her apartment. He entered forcibly through a locked balcony door. Ms. Doe was sexually assault and the attacker fled. When he was ultimately captured, he pleaded guilty to a number of sexual assaults including the attack on Ms. Doe and upon several other women who he also had sexually assaulted.

20In its investigation of the attacker, prior to his arrest, the police knew that the prior attacks had occurred within a one year period in a certain vicinity in Toronto where Ms. Doe lived and that they involved white single women, living in second or third floor apartments. In each case, the attacker had gained entry through a balcony door.

21The court commented,

16For the most part, the police are fee to go about their task of detecting and apprehending criminals without fear of being sued by individual members of society who have been victimized. The reason for this is simple. While the police owe certain duties to the public at large, they cannot be expected to owe a private law duty of care to every member of society who might be at risk.

17Foreseeability of risk alone is not sufficient to impose a private law of duty of care…

18To establish a private law of duty of care, foreseeability of risk must co-exist with a special relationship of proximity. In the leading case of Anns v. Merton London Borough Council, [1978] A.C. 728…Lord Wilberforce defined the requirements of this special relationship as follows at p. 751-752 [A.C.]:

First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter – in which case a prima facie duty of care arises.

20The plaintiff alleges that the defendants knew of the existence of a serial rapist. It was eminently foreseeable that he would strike again and cause harm to yet another victim. The allegations, therefore, support foreseeability of risk.

21The plaintiff further alleges that, by the time she was raped, the defendants knew or ought to have known that she had become part of a narrow and distinct group of potential victims, sufficient to support a special relationship of proximity. …

22Accepting as I must the facts as pleased, I agree with Henry J. that they do support the requisite knowledge on the part of the police sufficient to establish a private law duty of care. The harm was foreseeable and a special relationship of proximity existed.

22The plaintiffs also rely on Hill v. Hamilton- Wentworth (Regional Municipality) Police, 2007, SCC 41. In this case, the court considered whether the police could be held liable if their conduct during the course of an investigation fell below an accepted standard which resulted in harm to a suspect. In considering whether there was a sufficient proximity between a police officer and a suspect in order to establish a prima facie duty of care, the court commented:

29The 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. A sufficiently close and direct connection…may also exist where there is no personal relationship between the victim and wrongdoer. In the words of Lord Atkin in McAlister (Donoghue):

[A] duty of take care [arises] when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other. I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act.

Analysis

23The Ministry relies on Cooper v. Hobart, 2001 SCC 79, [2001] SCJ No. 76. This is an investment loss case and can easily be distinguished on its facts. The Ministry also relies on Sivertson. This is a British Columbia case involving licensed inspectors inspecting a licensed daycare. Again, the facts in this case are also distinguishable. Here, the daycare was unlicensed and there were no licensed inspectors.

24Clearly, the Ministry knew of the situation. It received four complaints between May 2, 2012 and November 16, 2012. Its staff members did a site visit and saw seven children under the age of 10 entering the daycare. Accordingly, the Ministry wrote a letter to the daycare operator dated November 26, 2012 stating that it was operating in contravention of the Day Nurseries Act.

25Almost one month later, the Ministry received another complaint, this time that 17 children were being cared for at the daycare. Even if the Ministry is not required to take enforcement steps, it may be that the Ministry ought to have reported the matter to the local health unit which is empowered to take investigative steps, among other things.

26Interestingly, after Eva’s death, the Ministry did obtain a search warrant and entered the daycare. Apparently, it found 29 children and 14 dogs. The Ministry then obtained an injunction to shut down the daycare. This suggests that the Ministry was capable of taking action.

27The issue in the proceeding is whether the Ministry should have taken action prior to Eva’s death. The Ministry acknowledges that this is a novel situation. As stated in Imperial Tobacco at para. 47, on this motion to strike the claim, the court must consider “whether, assuming the facts pleaded to be true, there is any reasonable prospect of successfully establishing proximity, on the basis of a statute or otherwise.” According to Jane Doe and Hill the relationship is not required to be close and direct to support a finding of proximity. Rather, the question is whether the actions of the wrongdoer have a close or direct effect on the victim and whether the wrongdoer should have had the victim in mind as someone who might be harmed.

28In my view, the plaintiffs may be able to successfully establish proximity. It is not plain, obvious and beyond a reasonable doubt at this stage that the plaintiffs’ claim cannot succeed. There are uncertainties that cannot be answered at the pleadings stage.

29Accordingly, the motion is dismissed.

Costs

30The plaintiffs are presumptively entitled to costs. Despite the requirement of Rule 57.01(6), the plaintiffs did not bring a costs outline to the hearing and were not prepared to make costs submissions.

31If the parties cannot agree on costs, I will receive written submissions, limited to three pages using 1.5 line spacing, together with costs outlines and any relevant offers. The plaintiffs shall serve and file submissions within 15 days of the release date of this

endorsement. The defendant shall serve and file responding submissions within a further 10 days following which the plaintiffs may serve and file reply submissions within a further 10 days. These submissions shall be filed with my assistant, Nicole Anderson, at Barrie.