D.T. v. Highland Shores Children’s Aid, et al, 2016 ONSC 1432

COURT FILE NO.: CV12-0308-00

DATE: February 26, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

D.T.

Plaintiff

– and –

Highland Shores Children’s Aid, Karen McCoy, Jennifer Bouma, Chris Miscevicius, Heather Fairbairn, Jane Robson, Margarida Madieros and Kinark Child and Family Services

Defendants

COUNSEL:

R. Steven Baldwin and Daniel Baldwin, for the Plaintiff

Giovanna Asaro, for the Defendants

HEARD: January 12, 2016 (Belleville)

RULING ON MOTION

QUIGLEY, J

[1] The defendants, Highland Shores Children’s Aid and several of its employees, move pursuant to r. 21 of the Rules of Civil Procedure to strike out the plaintiff’s action without leave to amend.

[2] The issue to be determined on this motion is whether it is “plain and obvious” that the claim of the plaintiff, Mr. D.T., discloses no reasonable cause of action. His claim alleges negligence and bad faith conduct by the defendants in carrying out their investigation of child protection concerns involving the plaintiff’s two daughters.

[3] In my view, it is not “plain and obvious” that the plaintiff’s claim discloses no reasonable cause of action. I conclude that the plaintiff’s claim should proceed to a trial where the issue of whether the defendants owed the plaintiff a duty of care (and the issue of whether the plaintiff can establish bad faith and thereby overcome the statutory immunity in s. 15(6) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”)) can be determined on a full record.

Facts

[4] The plaintiff father married Ms. L. in 1998. There are two daughters of the marriage: RT, born […], 2006, and CT, born […], 2003. The plaintiff and Ms. L. separated in 2006.

[5] Around the time of the separation, Ms. L. advised the Northumberland CAS (a predecessor to Highland Shores Children’s Aid, a defendant in this action) that the plaintiff had been sexually inappropriate with his children. The society investigated and determined that the concerns were not verified and closed the protection file. Thereafter the children resided primarily with Ms. L. but had access visits with the plaintiff weekly for one overnight and for alternating weekends.

[6] Two days after the plaintiff served Ms. L. with a divorce application, including a claim for custody of the children, Ms. L. informed the plaintiff that he would not see the children again. The next day, she again telephoned the plaintiff and made further allegations of sexually inappropriate behaviour by the plaintiff to the children. Three days later, on July 25, 2006, the OPP charged the plaintiff with sexual assault, sexual interference, and sexual exploitation of his eldest daughter. The plaintiff was released on condition that he have no contact with his children. The plaintiff did not see his children again until February 2009.

[7] The Northumberland CAS reopened its child protection file in October 2006 after it was advised by Ms. L. that CT was repeating her disclosures of sexual abuse from March 2006. The Society again investigated, again found the allegations were unverified, and again closed its file.

[8] In August 2007, all of the criminal charges against the plaintiff were withdrawn as the prosecution felt there was no reasonable prospect of conviction. The plaintiff then recommenced the divorce proceeding, including a claim for unsupervised access with his daughters.

[9] The Northumberland CAS commenced a child protection application in October 2007, seeking a finding that the children were in need of protection because there was a risk of emotional harm to them. As part of the proceedings, Dr. Voysey conducted an assessment and developed an access plan, under which the plaintiff’s access was to transition from supervised therapeutic access to supervised non-therapeutic access to unsupervised access. The Society approved of this plan and in January 2009, withdrew its child protection application by filing a Consent to Terminate. The Consent specified that the plaintiff and Ms. L. agreed to follow Dr. Voysey’s access plan pending trial of the divorce proceedings.

[10] In November 2009, the plaintiff and Ms. L. consented to a final order dealing with custody and access issues. Under the order, Ms. L. had custody and the plaintiff would have gradually expanding access to the children. The plaintiff was to have unsupervised access by March 15, 2010.

[11] Meanwhile, Ms. L. had relocated to the jurisdiction of the Hastings Children’s Aid Society (another predecessor to the defendant Highland Shores Children’s Aid). In February 2009, Ms. L. reported to the Hastings CAS that she had been involved with the Northumberland CAS because the plaintiff was sexually abusive, but that they could no longer do anything about it as she no longer lived in their jurisdiction. Over the course of the summer of 2009, Ms. L. reported to the HSCA that the children were upset by access with the plaintiff and did not want to go. The reports from the therapeutic access supervisors indicate that the visits were positive and the children were enjoying the visits.

[12] The Hastings CAS decided to intervene by bringing a child protection application if the court were to grant the plaintiff unsupervised access in the divorce proceedings. It documented this position in a letter to Ms. L.. In coming to this decision, it did not review the Northumberland CAS file in its entirety, the court file relating to the child protection proceedings, the consent order made in the child protection proceedings, and any pleadings or documentation in the divorce proceedings, and nor did it talk to the plaintiff or any members of his family.

[13] The Hastings CAS commenced a child protection application on March 1, 2010, seeking a finding that the children were in need of protection based on the risk of sexual and emotional harm. On the same date, it brought a motion seeking an interim, without prejudice order that the children would remain in Ms. L.’s care with access to the Plaintiff at the Society’s discretion.

[14] A Hastings CAS employee, the defendant Ms. Jane Robson, deposed an affidavit to support the application and motion filed by the CAS. She relied on information from Ms. L., Ms. L.’s family members, the children’s family doctor, and the defendant Ms. Madieros. She did not review the complete Northumberland CAS protection file, she did not interview the therapeutic access supervisors at the access facility, and she did not interview the plaintiff or the plaintiff’s family members (who were by then supervising access in accordance with the consent custody and access order in the divorce proceedings). Ms. Robson’s affidavit is alleged to be misleading and/or inaccurate, inter alia, in regards to its explanation of why the criminal charges against the plaintiff were dropped, and the facts surrounding the Northumberland CAS’s closure of its child protection file and termination of involvement with this family. Ms. Heather Fairbairn, another defendant and employee of the Society, is alleged to have deposed two similarly deficient affidavits in support of the Society’s application.

[15] The defendant Mr. Chris Miscevicius, another Society child protection worker involved in this file, is likewise alleged to have provided factually imbalanced and incorrect information to the court by way of sworn affidavits. He is also alleged to have aligned himself with Ms. L. and the maternal family, and to have actively attempted to thwart access between the plaintiff and the children, including by counselling the older child not to attend access visits.

[16] The child protection application proceeded to a trial before the Ontario Court of Justice. The trial took place over 14 days from April to October 2011. The trial judge’s findings included:

• Neither of the children were at risk of sexual harm in the plaintiff’s care;
• There was no evidence that CT had suffered or was at risk of suffering from emotional harm related to access with the plaintiff; and
• RT was likely at risk of emotional harm as a result of the actions of Ms. L. and the maternal grandmother and their inability to support the children before and after access visits with the plaintiff.

[17] The trial judge also found:

• The allegations that the Hastings CAS and its employees relied on in support of its allegations of a risk of sexual harm were the same allegations fully known to and investigated by the Northumberland CAS when it commenced its protection application in October 2007 on the basis of risk of emotional harm only, and in January 2009, when it terminated the proceedings;
• No new facts, circumstances or evidence were tendered by the Hastings CAS at the 14-day trial that had not already been the subject of the original joint police-Northumberland CAS investigation in July 2006, which culminated in the Crown’s decision to withdraw the criminal charges in August 2007 and the Northumberland CAS’s decision to terminate the child protection proceedings in January 2009;
• The Hastings CAS and its employees failed to conduct a full investigation, failed to provide the court with balanced and current information, failed to assess and evaluate its protection concerns on the basis of all the relevant evidence and information on an ongoing basis, and filed with the court affidavits that contained numerous false and misleading statements respecting the plaintiff and his children; and
• That Hastings CAS commenced its child protection proceedings because it wanted to ensure that unsupervised access, scheduled to begin in March 2010 in accordance with the consent custody and access order, would not take place.

[18] The plaintiff issued the statement of claim in this action on October 18, 2012. He alleges that the defendants approached their statutory duties with a biased attitude toward him, which led them to engage in the following “negligent and/or bad faith conduct” (Plaintiff’s Factum, para. 93):

i. aligning themselves with the children’s mother and against the Plaintiff, rather than advancing the best interests of the children;

ii. actively attempting to thwart access between the Plaintiff and his daughters;

iii. counselling one or both of the children to circumvent the Court ordered access visits with the Plaintiff;

iv. failing to conduct a full investigation;

v. ignoring information that should have led to further investigation;

vi. failing to assess and evaluate its protection concerns on the basis of all of the relevant evidence and information;

vii. commencing and continuing the child protection application when they knew or ought to have known the grounds alleged for such application were without merit;

viii. deposing false and misleading affidavits that contained numerous inaccurate and/or misleading statements about the Plaintiff;

ix. deposing affidavits that failed to provide full and balanced disclosure of all of the relevant information;

x. failing to provide the Court with balanced information;

xi. failing to provide the parties or the Court with updated evidence of positive developments in the children’s access with the plaintiff; and

xii. painting the plaintiff as a villain and misleading the Court as to the actual facts.

Parties’ Positions

[19] The defendants submit that D. (B.) v. Children’s Aid Society of Halton (Region), 2007 SCC 38, [2007] 3 S.C.R. 83 [“Syl Apps”] stands for the proposition that a children’s aid society owes no duty of care to parents. They say that according to Syl Apps, a children’s aid society’s sole duty is to the children who come to its attention and are within its care . This is because imposing a duty of care to the parents of such children would prevent the society from effectively discharging its statutory duties by placing it in a conflict position: the society would be “torn between protecting a child or avoiding a legal action from the family” (Defendants’ Factum, para. 18).

[20] The defendants submit that as they owed no duty of care to the plaintiff as parent of the children and as the subject of its investigation, the plaintiff’s claim cannot be sustained and ought to be struck without leave to amend. Moreover, as there is no stand-alone cause of action in bad faith, they say that if the negligence claim is struck, the bad faith allegation cannot survive.

[21] The plaintiff submits that it is not “plain and obvious” that his action cannot succeed and that, in the alternative, this is not the appropriate stage of the action to determine the question of law as to whether the defendants owed a duty of care to the plaintiff. The plaintiff argues that Syl Apps is distinguishable from the situation at bar. Moreover, the plaintiff submits that the facts of this case are in line with those in B. (D.) v. Children’s Aid Society of Durham (Region) (1996), 1996 1067 (ON CA), 136 D.L.R. (4th) 297 (Ont. C.A.) [“B. (D.)”], in which the CAS defendants conceded that “a combination of negligence and lack of good faith in the performance of their statutory duties would give rise to a common law cause of action” (B. (D.) at para. 26).

[22] The plaintiff further submits that to extend the “immunity” outlined in Syl Apps to the conduct alleged in this case, namely internalized bias, bad faith and intentional wrongful conduct, “would risk interpreting the Syl Apps immunity as a form of impunity” (Plaintiff’s Factum, para. 97).

Analysis

[23] The test on a r. 21 motion was set out by the Supreme Court in Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, at p. 980:

…assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action?

[24] The plaintiff’s claim alleges negligence and bad faith conduct by the defendants in their investigation of the plaintiff and his alleged sexual abuse of his children. For the plaintiff’s claim to succeed, it must be founded on some duty of care owed to him by the children’s aid society and its employees. Moreover, to bring his claim outside of the statutory immunity in s. 15(6) of the CFSA, the allegations of bad faith in his statement of claim must be supported by specific, material facts of actions taken in bad faith or with malice or intentional wrongdoing.[^1]

[25] The first issue is whether the Society owes the plaintiff a duty of care. Does the plaintiff’s claim support its allegation of bad faith with sufficient detail to bring the claim outside of the s. 15(6) immunity?

(1) Is it plain and obvious that the defendants do not owe the plaintiff a duty of care?

[26] The Ontario case law on the issue of whether a children’s aid society owes or may owe a duty of care to a parent, both at the investigation stage of a child protection matter or after a child has been taken into care, is mixed. A majority of the cases seem to hold that Syl Apps categorically precludes any duty of care owed by a society to a parent, at any stage of a child protection matter. This body of jurisprudence includes two Superior Court decisions which have been upheld by the Ontario Court of Appeal, namely G.P. v. The Children’s Aid Society of Hamilton, 2011 ONSC 4231, aff’d M40852 [“G.P.”], and Major v. York Region Children’s Aid Society, 2011 ONSC 5635, aff’d 2012 ONCA 223 [“Major”]. However, a number of cases have distinguished Syl Apps or narrowed its application to situations involving the medical treatment of children in care.

[27] Given this uncertainty in the law, it is necessary to review Syl Apps to analyze the scope of its application before moving on to consider whether the Ontario Court of Appeal’s endorsements in G.P and Major preclude a finding that the society owes a parent under investigation a duty of care. It is also necessary to consider the Superior Court jurisprudence on this issue and finally to conduct an Anns analysis to determine whether such a duty could exist from first principles.

Applicability of Syl Apps

[28] Syl Apps involved a child who had been apprehended by the CAS after writing a story about having been physically and sexually abused by her parents. The police investigated but no criminal charges were laid. The child was found to be in need of protection based on having suffered emotional harm and suffering from a mental, emotional or developmental condition that could seriously impair her development, and temporary wardship was ordered. Eventually, with the child’s consent but over the objections of her parents, she was sent to the Syl Apps Secure Treatment Centre, operated by the Ontario government. Her case coordinator there was social worker Mr. Douglas Baptiste.

[29] The claim was brought by the child’s family (parents, grandmother and three siblings), alleging negligence by various government officials and institutions, including the Halton CAS, R.D.’s social workers and doctors, the Syl Apps Secure Treatment Centre and Mr. Baptiste. It alleged that by treating her as if she had been sexually and physically abused by her parents, the defendants negligently caused the child not to return to her family, thereby depriving the family of their relationship with the child.

[30] The Syl Apps Secure Treatment Centre, the Centre’s clinical director (a psychiatrist), Mr. Baptiste, a psychiatrist involved in the child’s care at a different institution, and the child’s Office of the Children’s Lawyer counsel brought a r. 21 motion to strike. The CAS was not a party to the motion. The motion judge found that the five defendants were either doctors who owed duties of care only to their patient (the child) or in analogous circumstances thereto.

[31] The family appealed that order only insofar as it related to the Syl Apps Secure Treatment Centre and Mr. Baptiste. They abandoned their bad faith argument at the Court of Appeal, resting on the argument that the treatment centre and Mr. Baptiste owed them a common law duty of care giving rise to an action for damages in negligence.

[32] The Supreme Court granted the rule 21 motion and struck the claim, without leave to amend.

[33] In my view, Syl Apps is distinguishable from the case at bar for at least the following two reasons. First, Syl Apps involved allegedly negligent treatment of a child in care by a third-party service provider, not allegations of negligent and bad faith investigation by the CAS. Second, the plaintiffs in Syl Apps did not allege bad faith.

a) Syl Apps involved allegations of negligent medical treatment by a third party, not negligent and bad faith investigation by the CAS

[34] The Supreme Court expressly limited its decision to the context before it, i.e. whether a treatment centre owes a duty of care to the family of its patient:

• “The question in this case is whether, a treatment centre and its employee into whose care a child has been placed, owe a hitherto unrecognized legal duty of care to the family of a child they have been ordered to protect.” (para. 3)
• “The issue in this appeal is whether the Syl Apps Secure Treatment Centre and Mr. Baptiste, R.D.’s social worker/case coordinator there, owe a duty of care to the family of the child they have been ordered by the court to treat.” (para. 22)

[35] The Court’s rationale for denying the existence of the alleged duty relied in large part on the inherent conflict between the parents of a child in care and the agencies or institutions treating that child. At paras. 41-42 (see also para. 49):

The deciding factor for me, as in Cooper and Edwards, is the potential for conflicting duties: 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.

When a child is placed in the care of the Children’s Aid Society, or if Crown wardship is ordered, the Act gives the Children’s Aid Society or Crown “the rights and responsibilities of a parent for the purpose of the child’s care, custody and control” (s. 63(1)). This creates an inherently adversarial relationship between parents and the state.

[36] The Court confirmed the primacy of the best interests of the child over the “family’s satisfaction” (para. 43), “the wishes of a parent” (para. 45), “parental expectations which may be unrealistic, unreasonable or unrealizable” (para. 50), and “the family’s views and wishes” (para. 51).

[37] That the child’s best interests are paramount to the parents’ wishes, satisfaction, expectations or views is a fundamental principle in the context of the medical treatment of a child in care, where the placement or treatment preferred by the patient and his/her custodian (the child in care and the Society) and the third party (the parent whose child was apprehended) may conflict. However, it is less clear that the conflict arises at the investigation stage of the child protection matter, i.e. before it is decided or found that the child is in need of protection.

[38] The Syl Apps claim did not raise any question of negligence at the investigation/verification of child protection concerns stage; in fact, the parents consented to the finding that R.D. was in need of protection. Accordingly, there was no evidence before the Court of alleged negligence, lack of good faith or intentional wrongful conduct during an investigation of allegations of child abuse by a parent. The Court was not asked to and did not analyze “foreseeability” or “proximity” (which includes an analysis of the potential for duties to conflict) in the context of that relationship.

[39] It is therefore difficult to see how a decision made in this context could be determinative of all future negligence/bad faith claims involving society workers, given the apparent difference in the dynamics at play in the parent-child-society triangle at the investigation vs. child-in-care stage.

a) The plaintiffs in Syl Apps did not allege bad faith

The plaintiffs in Syl Apps abandoned their allegation of bad faith on the part of the defendant Secure Treatment Facility and social worker at the appellate level.

With no allegation of bad faith, the statutory immunity provisions of the Ministry of Community and Social Services Act, R.S.O. 1990, c. M.20, s. 4(3) and the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 142 protected Ministry employees against personal liability for any act done in good faith execution or intended execution of their duties.

[40] This precluded the Supreme Court from considering the liability implications of bad faith conduct both in general and, in particular, in the CFSA statutory scheme.

Ontario Court of Appeal jurisprudence

[41] In addition to Syl Apps, the moving parties also rely on two endorsements of the Ontario Court of Appeal, G.P. and Major, in which the Court upheld Superior Court decisions denying the existence of a duty of care owed by Children’s Aid Society to parents.

[42] In G.P. the Superior Court struck the plaintiff’s claim, which “baldly assert[ed] bad faith and malice on the part of the CAS and its employees…” (para. 12). The plaintiff’s position was that the CAS and its employees had discriminated against him and that “discrimination becomes negligence” (para. 14). The judge struck the claim because (1) it is “the ratio of the Supreme Court of Canada decision in Syl Apps” that the CAS and its employees owe no duty of care to the plaintiff—their sole duty is to the children; (2) the plaintiff could not rely on bald assertions of malice and bad faith to overcome the statutory immunity provision in s. 15(6) of the CFSA; and (3) it was clear the plaintiff was attempting to re-litigate his family and criminal court proceedings. A single judge of the Court of Appeal, in a brief, unreported endorsement, dismissed the plaintiff’s motion for an extension of time to appeal. In doing so, he commented briefly on the merits:

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 case [sic].

[43] Major, a one-paragraph decision of the Court of Appeal, affirmed the Superior Court’s decision to strike the plaintiff’s claim as against two officers of a Children’s Aid Society in their personal capacity. The Superior Court struck the plaintiff’s claim against these defendants because (1) bad faith was required to displace the statutory immunity protecting those two defendants from personal liability, and none was pleaded; and (2) “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. See [Syl Apps].” (para. 13).

[44] In my view, neither of these brief endorsements are sufficient to categorically dispose of the issue of whether the Society can owe a duty to a parent it is investigating for alleged child abuse. In this regard I rely on the words of the Ontario Court of Appeal itself, in R. v. Timminco (2001), 2001 3494 (ON CA), 54 O.R. (3d) 21 (C.A.), at para. 36:

Reasons of this court given by “endorsement” are mainly directed to the immediate parties. Endorsements, like all judgments of this court, have precedential value but they should not be construed to support broad overarching principles which are not specifically addressed in them.

[45] The only remaining Ontario appellate authority is the 1996 case of B. (D.) relied on by the plaintiff. However, the defendants in that case conceded that “a combination of negligence and lack of good faith in the performance of their statutory duties would give rise to a common law cause of action against them”, and neither the Court of Appeal nor the trial court conducted an analysis of whether foreseeability and proximity were made out, so as to ground a duty of care. As a result, the B. (D.) case is of limited assistance, in my view.

Superior Court jurisprudence

[46] The Superior Court jurisprudence is mixed on the issue of the existence of the alleged duty of care.

[47] A number of cases have categorically rejected the existence of such a duty, with no or minimal analysis. For example:

• In Evans v. Highland Shores Children’s Aid Society (10 October 2014), Peterborough CV-13-82 (Ont. S.C.), the Court granted the society’s summary judgment motion, finding there was no genuine issue for trial in the plaintiff’s claim for negligent investigation. The court stated (at p. 28 of the Transcript): “I am also further satisfied that the law as it stands in Ontario, in fact throughout Canada, is that a Children’s Aid Society does not owe a duty of care to an adult in circumstances when they are investigating whether or not a child is in need of protection.”
• In Irish v. DCAS, 2015 ONSC 1721, the court struck the plaintiff’s claim, which alleged “a duty of care to the plaintiffs as subjects of an investigation to ensure that it was carried out properly” (para. 7). The court stated that despite the decision in A.D. v. T.G. (see below), which was “an anomaly”, “[t]he 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” (para. 22), relying on Syl Apps, Major and G.P.
• In Pereira v. Her Majesty the Queen, 2015 ONSC 2249, the court rejected the argument that Syl Apps’ application should be limited to situations involving agencies providing the care or treatment of a child already in care. The court held that the potential conflicting duties cited by the Supreme Court applied equally to a society investigating possible abuse and to a society providing care once a decision to apprehend has been made. The court held:

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.

• In K.A.P. v. Children’s Aid Society of Toronto, 2007 44821 (Ont. S.C.), the court found that imposing a duty of care in the investigation stage would create a conflict for the CAS employee, hindering her ability to carry out her duties. At para. 19:

I have concluded that the duties imposed by statute on a Children’s Aid Society can well be in conflict with the wishes and desires of the parents of the child in question. The CAS employee inquiring into whether or not parents have abused their child or have not provided him or her with proper care would find the carrying out of the responsibilities of his or her employment seriously hampered if attention had to be directed to the wishes of the parents. [emphasis added]

• In CAS Toronto v. A.B. (21 January 2009), Toronto 07-CV-333426PD3 (Ont. S.C.), the court found that the concerns about conflicting duties from Syl Apps were applicable and in fact would be “even greater” at the investigation stage (p. 14). The court continued, “It would be in my view illogical to suggest that the service providers transcended statutory duty in the interest of children only begins to have paramountcy once the child is in the their [sic] care. It must prevail at the investigative stage as well” (pp. 14-15).

[48] On the other hand, a few decisions have limited the applicability of Syl Apps and/or suggested that a duty of care owing by the society to parents under investigation could exist. For example:

• In A.D. v. T.G. et al, 2013 ONSC 958, the defendant CAS and its employees brought a summary judgment motion in an action by the plaintiff for slander and intentionally wrongful conduct and/or negligence by the defendants in the discharge of their duties. The Court denied the motion. It found that Syl Apps was not applicable and that, “at the very least” the claim raised a genuine issue for trial. At paras. 80-81 and 90-91:

Cases from across the country have distinguished Syl Apps on the ground that it applies only to the medical treatment context, Admassu v Peekaboo Child Care Centre, [2008] OJ No 3946, at paras 14-15 (SCJ), or the context of a child in the care of a state agency, McQueaid [sic] v Royal Canadian Mounted Police, 2009 PESC 40, at paras 22-24. It has not been taken to apply to all situations in which children’s organizations are involved in family matters.

At the very least, the Syl Apps immunity has been limited to cases where the claim is brought by a parent alleging mistreatment of the child following the child’s removal from the parental home.

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.

…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.

• In K.M.D. v Children’s Aid Society of the Region of Peel (2008), 2008 63149 (ON SC), 63 R.F.L. (6th) 146, a claim for negligent investigation, the court found at para. 23 that Syl Appls only applies to “a claim for alleged negligent treatment and care of a child after apprehension, not a claim for negligent investigation.”

In my view, given this conflicting case law, the issue of whether the alleged duty exists must be determined from first principles.[^2]

Anns test

[49] The test for the existence of a duty of care is the “Anns test”, which was explained by the Supreme Court in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at para. 30:

At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant’s act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? 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. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care.

(a) Foreseeability

I think it is obvious that the foreseeability requirement is met in this case: where a society negligently concludes that there are protection concerns, where none exist, and as a result removes a child from his or her family, it is foreseeable that harm (e.g. psychological harm) will result to the family.

The defendants do not dispute that the “reasonable foreseeability” requirement is met in the circumstances of this case (Defendants’ Factum, para. 11).

(b) Proximity

Where the relationship arises in the context of a statutory scheme, the factors giving rise to proximity must be grounded in the statute: Syl Apps, at para. 27. Where the imposition of a duty conflicts with an overarching statutory duty, this “may constitute a compelling policy reason for refusing to find proximity”: Syl Apps, at para. 28.

The CFSA provides that it is one of the functions of the CAS to investigate allegations of child protection concerns (s. 15(3)(a)) and to ensure parents have an opportunity to be heard, where appropriate, when decisions affecting their interests are made (s. 2(2)(a)). The grounds for finding a child in need of protection involve an assessment of whether the parent or person having charge of the child caused harm to the child, or failed to adequately care or provide for the child in some way. In my view it follows that the statute envisions an investigation of the parent or other person having charge of a child by the child protection worker in assessing whether the child is in need of protection. These factors tend to support a finding of “proximity” in my opinion.

The Supreme Court in Syl Apps found that there was no proximity between the parents of a child in care and the child’s service/treatment providers because such a duty could or would place the service provider in a conflict situation, where he or she would be forced to choose between acting the child’s interests and following the parent’s wishes.

This concern does not, in my view, arise in this case, where the alleged negligent and bad faith conduct occurred before the child was found to be in need of protection. The Supreme Court explained that s. 1(2) states, in essence, that family and parental relationships are to be recognized only to the extent that they are ‘consistent with the best interests, protection and wellbeing of children’.” (Syl Apps, at para. 48). Where a family unit is intact, including during the investigation of child protection concerns but before the child is found to be at risk of harm and/or a decision to apprehend is made, it is at least arguable that the promotion of the child’s best interests includes or is consistent with recognizing the existing family and parental relationships. Specifically, the child’s best interest is to stay with his or her family if there is no risk of harm to him or her in that family unit, and the parent’s “wish” is to have the investigation into whether the child is at risk of harm conducted fairly. Consequently, the risk of conflicting duties does not in my view justify a refusal to find proximity.

Alternatively, Justice Morgan said in A.D. v. T.G. that the risk of conflicting duties demonstrates the foreseeability and proximity in the relationship at issue. At paras. 94-95:

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.

In my opinion it is at least arguable that there is a prima facie duty of care in this context.

(c) Residual policy considerations

The defendants rely on the potential for conflicting duties as a policy reason making the imposition of the duty unwise. As stated above, in my view there is little to no risk of conflict between the parents’ wishes and the child’s best interests at the investigation stage, before a society decides that a child is in need of protection and apprehends the child. I do not consider the potential for conflict to negate the prima facie duty of care in these circumstances.

[50] The Supreme Court found in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, that there was a duty of care owed by a police officer to a particularized suspect he or she is investigating. The court found proximity because of the “personal”, “close and direct” relationship between the police officer and the suspect and the “critical personal interest [of the targeted suspect] in the conduct of the investigation” (paras. 34-35) as well as the “public interest” in non-negligent policing, which may lead to wrongful convictions (para. 36). The Court considered and rejected the following policy reasons submitted to negate a prima facie duty of care: the potential of conflict between the duty of care and other police duties, the discretion involved in police work, the potential chilling effect the duty of care may have on investigating crime, and the possible flood of litigation against police officers if such a duty were imposed.

[51] This relationship was distinguished from that between a child protection worker and a parent under investigation for child protection concerns in M. et al v. The Catholic Children’s Aid Society of Hamilton (1 December 2008), Hamilton 07-29390 (Ont. S.C.). The court noted:

The CAS operates differently. The primary focus of an investigation is whether a child is in need of protection for whatever reason. It may have nothing to do with the parents per se. For example, the parents may have temporarily with good faith given their child to another whilst they did something in the absence of the child. That alternative care may create a risk to the chid. The parents are part of the context that is investigated.

[52] I find this unpersuasive. At least where the investigation focuses on whether the child is in need of protection as a result of alleged sexual abuse by the parent, the parent is not merely “part of the context that is investigated”—whether the abuse is “verified”, i.e. whether the parent did in fact sexually abuse the child, is a major part of the investigation. Moreover, the relationship between the investigating child protection worker and the allegedly abusive parent is personal, close and direct, and the parent certainly has a critical personal interest in the conduct of the investigation.

[53] It seems to me that the decision in Hill may support the imposition of a duty of care in this context.

(2) Are the plaintiff’s allegations of bad faith sufficiently pleaded?

[54] Section 15(6) of the CFSA provides a limited statutory immunity for society workers. This immunity can be displaced if “bad faith on the part of the Defendants [is] both pleaded and supported by the pleading of material facts of bad faith, malice or intentional wrongdoing”: Major, 2011 ONSC 5635 (at para. 12) (aff’d 2012 ONCA 223); see also Pereira v. Her Majesty the Queen, 2015 ONSC 2249, at para. 7.

[55] The decision in A.D. v. T.G., supra, suggests that where a CAS internalizes bias (in that case based on inflammatory accusations against the plaintiff) and this leads to intentional misfeasance and negligence in managing the CAS file, this may be a form of bad faith (paras. 66, 85 and 99).

[56] The 1996 Ontario Court of Appeal decision in B. (D.), supra, gives another example of bad faith conduct in the context of an investigation by the society. In B. (D.), a husband and wife separated and shortly thereafter, the wife alleged that the husband had sexually abused their adopted infant daughter. The trial judge found that the social worker “formed the opinion that [the husband/plaintiff] was guilty of sexual abuse immediately after she interviewed [the wife and the older daughter] and that she closed her mind to any other possibility”, which led her to, among other things:

• Knowingly file a false and misleading affidavit in support of the application for the interim protection order;
• Refrain from properly following up with Dr. Wright and conducting a full and complete interview with him;
• Refrain from following up with the police;
• Ignore evidence which should have raised serious concern about [the wife’s] conduct toward the children and her motivation for implicating [the husband/plaintiff]; and
• Turn a deaf ear to [the husband/plaintiff’s] protestations of innocence and ignore information from him which should have led to further investigation.

[57] The trial judge found that s. 15(6) did not apply to that case as the society’s investigation was conducted, an interim protection order obtained, and the child protection trial had commenced before its proclamation. However, he noted that even if he was wrong, he was not satisfied that the social worker’s conduct amounted to “execution in good faith” of her duties.

[58] The Court of Appeal affirmed the trial judge’s decision, stating:

In sum, the findings of the trial judge reveal an investigation tainted by bias and lack of good faith culminating in a course of conduct akin to a malicious prosecution.

In our view, it was open to the trial judge to make the findings of fact which led to his conclusion that the defendants had exhibited bias, lack of good faith and eventually malice in the purported exercise of their statutory duties.

In oral argument before us, the defendants conceded that a combination of negligence and lack of good faith in the performance of their statutory duties would give rise to a common law cause of action against them. According to the defendants, s. 15(6) of the CFSA merely codified the limited duty of care the defendants owed to the plaintiff DB at common law.

[59] In my view the facts before the Court of Appeal in B. (D.) in 1996 are similar to those alleged in the Statement of Claim in this case: a couple with two children separates; the wife alleges that the husband was sexually abusing the children while custody and access are in issue as between the husband and wife; and a Children’s Aid Society investigates, aligns itself with the wife’s position, and files a child protection application, which it supports with misleading information favouring the wife’s position while ignoring concerns about the wife’s conduct to the children.

[60] Moreover, the manner in which the defendant society and its employees adopted Ms. L.’s allegations against the plaintiff, then failed to investigate the Northumberland CAS child protection file or to properly interview the plaintiff and his family members about the access visits and the children’s relationship with the plaintiff before filing the child protection application or at the very least before it went to trial, could demonstrate an internalization of bias leading to intentional and negligent conduct supporting an allegation of good faith. In my view, this issue should be left to be determined at trial, on the basis of a full factual record.

Conclusion

[61] First, there is no binding precedent holding that there is no duty of care owed by a Children’s Aid Society worker to a parent under investigation for child abuse: the Supreme Court’s decision in Syl Apps is distinguishable on its facts, the Ontario Court of Appeal’s endorsements in Major and G.P. are of limited precedential value and its 1996 decision in B. (D.) is of limited use given that the duty of care was conceded in that case and therefore the Court did no analysis of the factors of proximity and foreseeability. Moreover, the jurisprudence of the Superior Court is mixed on this issue.

[62] Second, in my view it is not plain and obvious that the duty of care does not exist based on a brief analysis of the circumstances of this case using the framework of the Anns test.

[63] Third and finally, in my view, the facts alleged by the plaintiff in support of his allegations of bad faith, malice and intentional wrongful conduct may be sufficient to bring this claim outside of the scope of the statutory immunity in s. 15(6) of the CFSA.

[64] Consequently, the plaintiff’s claim should not be struck at this stage and should instead proceed to a trial to be decided on a full record.

[65] I find support for this view in the words of Chief Justice McLachlin in R. v. Imperial Tobacco Canada Ltd, 2011 SCC 42, at para. 21:

Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before Donoghue v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562 (H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners, Ltd., [1963] 2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

[66] Therefore, for the aforementioned reasons, the defendants’ motion is dismissed.

[67] If the parties cannot agree on costs, then any party seeking costs for this motion may do so in writing within 30 days with a ten day right of reply to the other party. Such written submissions not to exceed two pages, plus a draft bill of costs.

The Honourable Mr. Justice M. J. Quigley

Released: February 26, 2016

CITATION: D.T. v. Highland Shores Children’s Aid, et al, 2016 ONSC 1432

COURT FILE NO.: CV12-0308-00

DATE: February 26, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

D.T.

Plaintiff

– and –

Highland Shores Children’s Aid, Karen McCoy, Jennifer Bouma, Chris Miscevicius, Heather Fairbairn, Jane Robson, Margarida Madieros and Kinark Child and Family Services

Defendants

RULING ON MOTION

Quigley, J.

Released: February 26, 2016

[^1]: I have included a brief discussion of this issue as the defendants raised it in their reply factum. There, the defendants argue that the negligence claim should be struck as there is no duty of care and thus the claim discloses no reasonable cause of action, and that as bad faith is not a stand-alone cause of action, it must be struck too.

[^2]: I emphasize that the following is not and is not intended to be a comprehensive Anns analysis; it is simply intended to assist in determining whether it is plain and obvious that the plaintiff’s claim discloses no reasonable cause of action (i.e. because the duty alleged does not exist).