CITATION: B.K.2 v. Chatham-Kent Children’s Services, 2016 ONSC 1921

COURT FILE NO.: 6166/15 (Chatham)

DATE: March 18, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: B.K.2, B.K.1, E.K.1, G.K.1, S.K.3, K.K., E.K.2, S.K.2 by their Litigation Guardian, B.K.1, S.K.1 and G.K.2, Plaintiffs

AND:

Chatham-Kent Children’s Services (operated by the Children’s Aid Society of the Municipality of Chatham-Kent), C.R., R.R., Dr. Jennifer Coolbear, Chatham-Kent Police Services Board, Dennis Poole, Chief of the Chatham-Kent Police Services, and Police Constable Gary Oriet, Defendants

BEFORE: Justice R. M. Raikes

COUNSEL: Raymond G. Colautti and Ursula Miletic, for the plaintiffs Gregory J. Van Berkel and Jonathan de Vries, for the defendants Chatham-Kent Children’s Services, C.R. and R.R. Todd J. Burke, for the defendant Dr. Jennifer Coolbear S. Brennan, for the defendants Chatham-Kent Police Services Board, Dennis Poole, Chief of Chatham-Kent Police Services and Police Constable Gary Oriet

HEARD: December 15, 2015 (Chatham)

ENDORSEMENT

OVERVIEW

[1] The Defendant, Dr. Jennifer Coolbear, and the Defendants, Chatham-Kent Children’s Services, C.R. and R.R. (collectively) each bring a r. 21 motion. The Defendant, Dr. Coolbear, seeks to dismiss the entire claim against her as disclosing no cause of action. Ms. C.R., Ms. R.R. and Chatham-Kent Children’s Services seek to dismiss only the claims made by the adult Plaintiffs on the same basis.

[2] In the event the claim against Dr. Coolbear is not dismissed, she seeks additional relief as follows:

1. An Order allowing disclosure of personal health and/or confidential information of the patient of Dr. Coolbear, a non-party minor, in accordance with s. 41 of the Personal Health Information Protection Act, 2004 for the purpose of defending the claim against Dr. Coolbear; and,

2. An Order allowing any document referencing the patient of Dr. Coolbear that is filed in this proceeding to be treated as confidential, sealed and not forming part of the public record in accordance with s. 137 of the Courts of Justice Act.

[3] None of the parties oppose the ancillary relief sought by Dr. Coolbear.

[4] The Defendants, Chatham-Kent Police Services Board, Dennis Poole and Gary Oriet take no position on the r. 21 motions.

[5] The Plaintiffs’ claims arise from criminal charges and a child protection proceeding against the Plaintiff, B.K.2, which resulted from allegations of physical and sexual abuse by a minor, V.. The charges were ultimately withdrawn as was the child protection proceeding but not before significant impacts upon B.K.2 and the K. family.

[6] The Plaintiffs assert numerous causes of action in their Amended Statement of Claim, some of which are addressed only in the barest of terms, if at all. Suffice to say at this point, the Amended Statement of Claim is poorly drafted.

THE PARTIES

[7] There are three generations of K. who are Plaintiffs in this action:

1. B.K.2 and B.K.1;

2. E.K.1, G.K.1, S.K.3, K.K., E.K.2 and S.K.2 who are children of B.K.2 and B.K.1; and,

3. G.K.2 and S.K.1 who are the parents of B.K.2.

[8] The Defendants are:

1. Dr. Coolbear, a staff psychologist at Toronto’s Hospital for Sick Children. She was the treating psychologist for V.;

2. C.R., a Child Protection Worker employed by Chatham-Kent Children’s Services. She was involved in the child protection application brought by CKCS;

3. R.R., Ms. C.R.’s supervisor at Chatham-Kent Children’s Services;

4. Chatham-Kent Children’s Services which is an independent , non-profit organization operated by the Children’s Aid Society of Chatham-Kent; and,

5. Chatham-Kent Police Services Board which is a Police Service Board that employed the Defendants, Dennis Poole as Chief and Gary Oriet as a police constable.

[9] For ease of reference, I will refer in this decision to C.R., R.R. and the Chatham-Kent Children’s Service collectively as “the CKCS Defendants”. Likewise, I will refer to the Chatham-Kent Police Service Board, Dennis Poole and Gary Oriet collectively as “the CKPSB Defendants”.

THE CLAIM

[10] Paragraph one of the Amended Statement of Claim sets out the Plaintiffs’ prayer for relief as required. That is where one finds claims for damages by each of the above Plaintiff groupings based on a shopping list of causes of action. This is noteworthy because for most of these causes of action, this is the only place in the pleading where these causes of action are referred to it all.

[11] At para. 1(a)(i), the Plaintiffs, B.K.2 and B.K.1 claim damages of $2 million for “bad faith, negligence, gross negligence, abuse of power, conspiracy, infliction of nervous shock, defamation of character, breach of confidentiality, breach of statutory duty and breach of Charter Rights”. I observe at this point that there is, of course, no such cause of action as “bad faith”.

[12] At para. 1(b)(i), the children of B.K.2 and B.K.1 claim damages of $750,000 for “bad faith, negligence, gross negligence, infliction of nervous shock, abuse of power, conspiracy, breach of statutory duty, loss of care, companionship and guidance, and breach of Charter Rights”.

[13] Finally, at para. 1(c)(i), the parents of B.K.2 claim damages of $350,000 for “bad faith, infliction of nervous shock and defamation of character”.

[14] All of the Plaintiffs claim punitive and exemplary damages of $1 million.

[15] Before I turn to what is in the Amended Statement of Claim, I will address what is conspicuously absent. First, the pleading is completely silent with respect to what, if any words were spoken or written by any of the moving party Defendants which were defamatory of the Plaintiffs. None of the required constituent elements of a claim in defamation are asserted. This is not a case where a valiant effort was made to plead defamation which falls short of the mark for some technical deficiency. The allegations essential to a claim in defamation are entirely missing.

[16] Second, excepting only the claim in negligence, the Amended Statement of Claim fails to link the facts to the constituent elements of the various causes of action listed in para. one of the pleading. Instead, the Amended Statement of Claim simply recites facts and leaves for the reader to divine whether the cause of action has been pleaded and to impute conclusions necessary to those claims. This is what might be labelled “the throw it at the wall and see what sticks” style of pleading.

[17] Third, although para. one seeks punitive damages against all Defendants, para. 69 of the Amended Statement of Claim particularizes the parties from whom punitive damages are sought. Dr. Coolbear is not among those listed. I take that omission to be advertent given that the Plaintiffs listed all of the other Defendants by name which would be entirely redundant if the plea was intended to apply to all Defendants.

[18] I turn to what is in the Amended Statement of Claim. I observe before doing so that at the outset of his oral argument, Plaintiffs’ counsel indicated that this case is “first and foremost a Charter claim”. As will be seen below, if that was indeed the intent of this pleading, it falls well short of the mark.

[19] The following allegations are made in the Amended Statement of Claim:

15. V. is a child, born July 28, 1998, who was previously adopted by the Plaintiffs, B.K.1 and B.K.2 at the age of three in the year 2002.…The adoption of V. broke down in 2007 due to her severe behaviours and lack of professional treatment by CKCS. V. has since been re-adopted and no longer resides with the Plaintiff K. family. At all relevant and material times, this child suffered from a diagnosed mental, emotional and psychological condition known as Reactive Attachment Disorder.

16. Jennifer was at all material times, a child born on May 22, 1989. She became acquainted with the plaintiffs, B.K.2 and B.K.1, from a time when they lived in the Ukraine as missionaries, and made attempts at adopting her. These attempts were not successful due to Jennifer’s adoption file being unavailable at that time.…

17. B.K.1 and B.K.2 met V. while they were living in the Ukraine and working as missionaries.

18. V., prior to adoption lived a life of neglect, under-stimulation and maltreatment, and the circumstances of her early years led to behaviour problems which were later diagnosed as Reactive Attachment Disorder.

19. V.’s behaviour problems included but were not limited to, exhibiting psychopathic behaviours including hurting the other children in the home, hurting the family pet, bullying children at school, stealing, lying, destruction and manipulation.

20. The child’s extreme behavioural problems were difficult to manage and the family reached out to many support services to assist them including…. The family also approached CKCS in trying to obtain a referral to the Child and Parent Research Institute for V. as she was a deeply troubled child.

21. In the year 2007, after advocating for V. and trying to access the appropriate mental health supports for V., CKCS failed to comply with their obligations to the K., as agreed to in the executed temporary care agreement. V.’s Reactive Attachment Disorder was never treated and the adoption with the K. subsequently broke down. The family could no longer manage the child’s untreated behaviours and the family environment became dangerous for the other children. V. was hurting her siblings and it was difficult to keep them safe.

22. After V. left the family home the family environment stabilized. The K. family did not have any form of contact with V. for approximately seven years.

23. V. was placed in the care of CKCS and at some point at a later date was readopted by a family in the Toronto area.

24. V. made some serious false allegations regarding her former adoptive father, B.K.2, and on November 26, 2013, the plaintiff, B.K.2, was charged with five (5) counts of sexual assault, five (5) counts of sexual interference with a person under 16 years, two (2) counts of assault with a weapon, two (2) counts of assault, and five (5) counts of invitation to sexual touching based on these allegations.

25. There were other false allegations of historical physical abuse made by another individual, Jennifer, in 2012. These allegations were not brought to the attention of the plaintiff’s nor investigated by the CKCS at that time. However, V. was somehow provided with this false information in detail, prior to making her allegations.

26. The K. family knew Jennifer from the time when they had lived in Ukraine. Jennifer had resided with the family for a short period of time when she was an orphan and approximately 10 to 12 years old. Initially, B.K.2 and B.K.1 were looking into adopting Jennifer, however, were unable to adopt her because she was not available for adoption at that time due to missing Ukrainian paperwork. They left the Ukraine without Jennifer, however, B.K.2 flew back to the Ukraine in a fruitless attempt to remedy the situation.

27. Jennifer was ultimately adopted by another Canadian family approximately five (5) years after the K. attempts.

28. Jennifer initiated contact with the K. family when she was adopted, in approximately 2007. This contact was open and ongoing for some time. However, unbeknownst to the K. family, Jennifer and V. had knowledge of each other. This knowledge could only have occurred with the support/facilitation of such contact by the CKCS.

29. Jennifer knew that V. no longer resided with the K.. V. was somehow provided with information and details about Jennifer’s allegations from 2012. V. told the police that this information was given to her by [sic] psychologist. V. made disclosures to professionals, including information about the K. family, that she could not have known without tracking the K.’s current online social media networks. V. knew that B.K.1 was a photographer, that B.K.2 and B.K.1 had added more children to their family, and that G.K.2 and C.K. had put in a pool at their home. All three of these examples occurred at least a year after V. had left the K. home.

30. C.R. provided false and misleading information to Chatham-Kent Police Service Constable Gary Oriet. Constable Oriet negligently accepted this information, which led to the arrest of B.K.2 and the bringing of the Child Protection Application by the CKCS.

31. V., throughout the course of the criminal and child protection investigation, modified her allegations numerous times and later even made false allegations regarding G.K.2, Mr. B.K.2 ’s father and the plaintiff children’s grandfather. V.’s initial allegations greatly changed within a few weeks. Changing the number of times she was allegedly assaulted from five to twenty-two. She initially stated that she had marks on her legs from the alleged historic abuse. When C.R. asks [sic] to photograph these marks, V. states that they were only there at the time and she no longer has any marks. Approximately two weeks later V.’s psychologist, Jennifer Coolbear, called C.R. and let Constable Gary Oriet know that V. “made a mistake” and she is ready to have these marks photographed. This was not investigated or documented. These changes should have caused the professionals involved to reconsider her credibility. Her allegations were modified once again months later. The CKCS utilized C.R. once again to receive these modified allegations. The CKPD, CKCS and Jennifer Coolbear showed no objectivity in this case, which greatly harmed the lives of the Plaintiffs.

32. Throughout the time of these allegations, V. was also making multiple attempts to contact the K. family and extended K. Family via telephone and social media….

33. Important information that was being used for the laying of the charges against B.K.2 and the criminal investigation came directly from the CKCS. The CKCS supplied false and/or only partial and therefore misleading information to the Police. B.K.2 was told by the arresting officer, the Defendant, Police Constable Gary Oriet, that he was making up the child’s disorder and that she had never been diagnosed with Reactive Attachment Disorder, which mirrored the statements made by the CKCS. V.’s diagnosis and confirmations of the diagnosis were later confirmed in materials during the Child Protection disclosure process in January 2014, after an interim order was already made and charges were already laid against B.K.2.

34. After V. made allegations against B.K.2, he was immediately threatened that if he did not leave the family home and refrain from any contact with the children, that all of the children would be removed from the home. This caused great emotional trauma and stress to all of the K. family. B.K.2 and B.K.1 felt as though they had no other choice but to consent.

35. Upon hearing that he would be charged and removed from the family, B.K.2 suffered chest pains, and in a nervous shock collapsed in front of his children, and had to be brought to the Chatham-Kent Health Alliance for treatment via ambulance.

36. CKCS immediately, without proper investigations, and any proper review of V.’s file, brought a Child Protection Application and on the first return of the Application, after extensive opposition from the CKCS, B.K.2 was allowed to return to the home with strict conditions placed on his ability to be with and parent his children. He was not permitted to be alone with the children.

37. This caused great difficulty in the running of the household as B.K.2 and B.K.1 have six children, some of a very young age. B.K.2 was no longer able to volunteer at the children’s school or attend field trips and because B.K.1 could not always find a supervisor for B.K.2 in the home, she also missed out on these events….

38. The K. children became very agitated and distressed whenever the CKCS visited the family home or interviewed them independently and were distressed and embarrassed when CKCS workers approach them at school. The CKCS’s attendance at the home tendered the children’s involvement in their planned extracurricular activities.

39. The K. children suffered greatly and in the evenings cried themselves to sleep when B.K.2 was removed from the family home, as they did not understand what was happening to their family.

40. The children continue to suffer from anxiety and worry whenever B.K.2 leaves the family home and suffer separation anxiety.

41. During the course of the Child Protection Application, it was discovered by the Plaintiffs that Dr. Jennifer Coolbear, in her therapy, had introduced the idea of sexual and physical abuse to V. who, over time, elaborated on the idea of creating numerous lies about B.K.2 and later, G.K.2 as well.

42. Dr. Coolbear then acted by making a report to the CKCS without further therapeutic intervention and failed to acknowledge that V. may be lying even though this is a critical manifestation of children diagnosed with Reactive Attachment Disorder. When V. shared contradictory information that would put her credibility into question, Dr. Coolbear failed to be objective and act accordingly.

43. During the course of the Child Protection Application, it was discovered that the CKCS failed to disclose important information and/or documentation regarding V.’s condition and her diagnosis to the plaintiffs in a timely fashion, to the court and to the police. An expert report confirming V.’s diagnosis of Reactive Attachment Disorder was provided to the plaintiffs months after the initial referral. It was later discovered that CKCS files reflected that V. had been screened for physical and sexual abuse at the time of the adoption breakdown in 2007. No disclosures were made and no concerns were noted. The screening was conducted during the exact time. That V. alleges to have been sexually abused. V. had also expressed an initial desire to return home with the K. family and later held animosity towards B.K.2 and B.K.1 based on the breakdown of the adoption.

44. CKCS failed to disclose to the court’s that after being in the CKCS’s care for a number of years, V. had for a period of time been accessing pornography on her foster mother’s computer to the point that the computer needed to be reformatted.

45. As result of the allegations made by V., B.K.2 was placed on the Child Abuse Registry by CKCS without a proper investigation or prior notice causing him great difficulty in obtaining employment. B.K.2 lost employment opportunities are for a job as a Worship/Music Pastor as a direct result of this action by CKCS.

46. B.K.2’s business suffered as he was unable to travel freely after being charged. B.K.2 suffered depression as a result of the actions particularized above.

47. G.K.2 and S.K.1 suffered emotional stress and loss of reputation in the community as a result of the allegations made by V..

48. As a result of the false allegations made by V. and the ensuing criminal and child protection proceedings, S.K.1 is being treated for stress related issues and remains on prescription medication to this day to deal with anxiety brought about by actions of the CKCS and CKPD.

49. CKCS brought the Child Protection Application and then did not immediately withdraw the Application, even though further evidence revealed significant information that contradicted their claims and supported the position of the plaintiffs and numerous requests were made by the plaintiffs. The failure to halt, seek or consent to a withdrawal of the Child Protection proceedings, or close the file in a timely fashion, caused additional and aggravated emotional stress and nervous shock to B.K.2 and B.K.1 and the family.

50. CKCS failed the K. family and breached an obligation of confidentiality in turning a blind eye to privacy practices. Their failure to adhere to proper privacy practices, directly or indirectly, lead V. to conspire against B.K.2 and B.K.1 causing them great stress and aggravation.

51. On April 10, 2014 all criminal charges against B.K.2 were withdrawn by the Crown on the basis of no likelihood of conviction.

52. CKCS did not immediately consent to withdraw its Protection Application until a settlement conference on June 3, 2014. At that time, the Protection Application was dismissed by the presiding Judge.

53. CKCS did not immediately remove B.K.2’s name from the Child Abuse Registry. B.K.2’s name was removed from the Child Abuse Registry approximately eight (8) months after the criminal charges were withdrawn. The CKCS initially denied the request B.K.2 made through the Ministry of Children and Youth Services, resulting in a pre-hearing telephone conference. CKCS only consented to his name being removed after the matter was heard by a Hearing Officer from the Ministry of Children and Youth Services. Upon hearing B.K.2’s evidence, this Officer cautioned the counsel for the CKCS to have their client (CKCS) re-think their position. The failure of CKCS to take steps to cause B.K.2’s name to be reversed from the Registry, aggravated the damages suffered by all of the plaintiffs, and constitutes malicious and high-handed conduct on the part of CKCS.

54. The Chatham – Kent Police Service continues to refuse to remove his name and fingerprints from their own data screening network. This has continued to severely damage of the Plaintiff, B.K.2’s, reputation and continues to bring him into public odium and contempt. This failure by the Police defendants aggravated the damages suffered by all of the plaintiffs and constitutes malicious and high-handed conduct on the part of the Police defendants.

55. With respect to the Defendants, CKCS, C.R. and R.R., the Plaintiffs plead that they, individually and collectively, acted in bad faith and failed to adhere to prescribed duties of care and standards of care applicable to all Child Protection agencies in Ontario which are responsible for the investigation of Child Protection matters, in the following particulars:

a) CKCS acted in bad faith and failed in their duty to protect the plaintiff children and the K. family.

b) They failed to duly consider that B.K.2 and B.K.1’s home had been deemed a respite home and B.K.2 have worked in a group home and engaged in one to one support work with Community Homes and that no concerns were ever reported.

c) CKCS failed to properly monitor the situation at the K. home after B.K.2 was permitted to return to the family home and did not attend the home initially from December 6, 2013 to January 15, 2014 and then did not attend for another 28 days. CKCS also did not attend the home from March 28, 2014 to May 15, 2014.

d) CKCS failed to promptly review the file and did not interview the children following the first return date on the Application until February 28, 2014. From February 28, 2014 to May 15, 2014, the CKCS did not see any of the school aged children of the K. family.

e) The CKCS created a difficult living situation for the K. family and then failed the family by not reconsidering their involvement with the family when contradictory evidence was presented.

f) When conducting their investigations, CKCS failed to take heed of the fact that V. made conflicting disclosures regarding sexual and physical abuse allegations by the [sic] B.K.2.

g) CKCS failed to question the credibility and consistency of V.’s disclosure and CKCS failed to fully appreciate the symptoms of Reactive Attachment Disorder and its effect on behaviours and failed to apprehend the potential serious consequences that can arise from the affliction.

h) CKCS failed to keep disclosures made to them from other individuals regarding the K. in confidence, allowing private information to be shared among children involved with the CKCS, in particular, V. and Jennifer.

i) CKCS failed the family and V. by not facilitating the proper treatment for V., or complying with their obligations as agreed to in the executed Temporary Care Agreement causing the breakdown of the adoption and leading to V.’s present behaviours. V.’s file and adoption profile suggests that, although Reactive Attachment Disorder was diagnosed by more than one psychologist, the CKCS never attempted to treat this disorder or seek help from a qualified professional in this area. Instead they sought to remove the diagnosis for the purpose of re-homing V..

j) CKCS failed to properly review the file in the conduct of this matter and failed to investigate the allegations made by V. with the K. family. For example, had the CKCS properly review the file, it would have learned that prior screening for physical discipline and sexual abuse have been conducted in 2007 yielding negative results.

k) CKCS failed to consider that there may have been collaboration between Jennifer and V. prior to the disclosures of abuse being made.

l) CKCS failed to properly investigate and/or question the allegations made by V. causing trauma to the family.

m) CKCS failed to adequately protect the children in the K. family from the untrue allegations made by V..

n) CKCS failed to properly investigate the information/allegations made by Jennifer.

o) CKCS failed to follow the Child Protection Standards in Ontario.

p) They failed to assess, analyse, verify or establish the validity and credibility of V.’s complaints.

q) They gave the Police Services false and incomplete information about the alleged incidents, including false and incomplete information about V.’s disturbed emotional and psychological conditions, diagnosis and prognosis.

r) They failed to interview V.’s current adoptive father.

s) They failed to complete a thorough child protection investigation, or request an extension of time to complete a thorough investigation, despite requests made by the family.

t) They failed to consider and assess whether the evidence gathered, particularly from V., and received by the child protection worker, C.R., was credible, trustworthy, believable, reliable and persuasive before proceeding with a referral of the matter to the Police Services or proceeding with Child Protection Proceedings.

u) The defendant, C.R., made false statements under oath and withheld information from the court in sworn affidavits in an attempt to justify the CKCS’s position.

v) Vital expert reports were left out of the CKCS worker’s affidavit material.

w) The defendants, C.R. and R.R., made false statements and misled the Plaintiffs.

x) The defendant, C.R., provided the Police with false and misleading information.

y) CKCS failed to take steps to stop their involvement or rectify the harm caused in a timely fashion, upon receipt of evidence confirming the children were not at risk of harm, leading to significant delay in consent to the dismissal of the protection application and the removal of B.K.2’s name from the Child Abuse Registry.

60. In addition to the above mentioned particulars, the Plaintiffs state and the fact is that the CKCS employed unqualified and/or incompetent caseworkers and supervisors who were not professionally qualified to carry out their investigations and assessments.

61. Furthermore, the Plaintiffs state and the fact is, that there were no reasonable and probable grounds to believe that any sexual or physical assaults have been perpetrated by the Plaintiff, B.K.2.

62. The Plaintiffs also plead that the Defendant, CKCS, had no reasonable and probable grounds to believe that B.K.2 posed any safety or security threat to the other Plaintiff children at any time.

63. With respect to the Defendant, Dr. Jennifer Coolbear, the Plaintiffs plead that this Defendant had a duty of care to the Plaintiffs, as they were persons who could be harmed by any acts of negligence in the performance by this Defendant of her professional duties and responsibilities. The Plaintiffs plead that this Defendant acted in bad faith and was negligent in the performance of her duties in the following particulars:

a) she failed to remain objective;

b) she failed to properly treat V.;

c) she failed to comprehend the nature of V.’s illness;

d) she failed to take proper steps in verifying that what V. had alleged was the truth and not a falsehood made in an attempt to garner attention;

e) she led V., through improper leading questions and suggestions, to make false statements concerning B.K.2 and G.K.2;

f) she was reckless in believing V. in view of the fact that she had no knowledge of the K. family (other than what V. had said about them) and had no reasonable basis to believe that V.’s statements were credible, believable, trustworthy, reliable or persuasive; and

g) unverified allegations were shared about Jennifer with V..

63. [Note: there are two paragraphs numbered 63] With regard to the Defendant, Police Constable Gary Oriet, as the investigating Police officer, and the Defendants, CKPSB and Chief Gary Poole, who are in law are responsible for the acts and omissions of their employees, the Plaintiffs plead that these Defendants had a duty of care to the Plaintiffs, as they were persons who could be harmed by any acts of negligence in the performance of an investigation by these Defendants of their professional duties and responsibilities. The Plaintiffs plead that these Defendants acted in bad faith and were negligent in the performance of their duties in the following particulars:

a) They failed to remain objective throughout the course of the investigation;

b) They failed to do a thorough investigation;

c) They failed to consider contradictory statements made by V. in December 2013, (only weeks after her initial disclosure), reported by Jennifer Coolbear to CKCS and CKPD;

d) They failed to comprehend the nature of V.’s illness;

e) They failed to investigate the information given to them that V. suffered from Reactive Attachment Disorder, which made her prone to lying;

f) They failed to take proper steps to verify that what V. had alleged was the truth and not a falsehood made in an attempt to garner attention or maliciously attack the K. family;

g) They had no reasonable and probable cause to believe, and/or were reckless in believing V., in view of the fact that they had no knowledge of the K. family and had no reasonable basis to believe that V.’s statements were credible, cleavable, trustworthy, reliable or persuasive;

h) They failed to conduct any analysis to determine if V.’s statements were credible, believable, trustworthy, reliable or persuasive. They relied upon the false and misleading statements of the CKCS;

i) The Defendant, Constable Gary Oriet, shared personal information about B.K.2 with Jennifer Coolbear, V.’s psychologist in a taped interview and subsequent to that taped interview.

65. [Note: there is no para. 64] As a result of the actions of the Defendants, including the investigations of the CKCS, arrest, filing of charges against B.K.2 and the bringing of the Child Protection Application, B.K.2 has suffered:

a) irreparable damages to his reputation, character and standing in the community, loss of liberty and suffered indignation as a result of the conditions placed on him by the CKCS;

b) past, present and ongoing nervous shock, anxiety and psychological trauma;

c) loss of business and employment opportunities;

d) loss of income and future income as his name and fingerprints remain in the Chatham-Kent Police Registry system and may affect his future employment prospects;

e) loss of security of the person.

66. As a result of the actions of the Defendants, including the investigations of the CKCS, filing of charges against B.K.2, and the bringing of the Child Protection Application, B.K.1 has suffered:

a) a loss of family income and potential future income;

b) irreparable damages to her reputation, character and standing in the community;

c) loss of liberty and suffered indignation as a result of the conditions placed on her by CKCS;

d) nervous shock, emotional distress, anxiety and psychological trauma associated by the arrest of and charges brought against her husband and the ensuing Child Protection Application;

e) loss of security of the person.

67. As a result of the actions of the Defendants, including the investigations of the CKCS, arrest, filing of charges against B.K.2, and the bringing of the Child Protection Application, the Plaintiff children have suffered:

a) Nervous shock, emotional distress and anxiety and psychological trauma associated by the removal from the home of their father and the visits of the CKCS workers to their home;

b) Loss of care, companionship and guidance of their father; and

c) Loss of past and future financial support.

68. As a result of the actions of the CKCS, the Defendants, C.R. and R.R., the Plaintiffs, S.K.1 and G.K.2 have suffered the following:

a) a loss of reputation in the community;

b) nervous shock, emotional distress and anxiety and psychological trauma associated with the arrest of their son and the Protection Application brought by the CKCS.

69. The Plaintiffs plead that the aforesaid actions of the Defendants, alone and in concert, breached the s. 7 Charter Rights of the Plaintiffs to security of the person. The Plaintiffs further plead and rely on s. 24 of the Charter and claim damages as compensation for breach of same.

70. [Note: there are two paras. numbered 69] The Plaintiffs plead that the actions, acts and omissions of the Defendants, CKCS, C.R., R.R., CKPSB, Poole and Oriet, as particularized above, or malicious, high-handed and contumacious of the Plaintiffs’ rights. These acts and omissions violated the Plaintiffs’ rights to privacy and deprive them of their reputation in the community, expose them to public odium and contempt, and cause them severe trauma and nervous shock. The allegations of child abuse and sexual abuse were investigated recklessly, in bad faith, not caring whether they were or could be true or not. The Plaintiffs plead that only an award of punitive or exemplary damages will denounce the conduct of these Defendants and ensure that it is not repeated in the future.”

Rule 21 – General Principles

[20] The Defendants’ motions are brought pursuant to r. 21.01(1)(b).

[21] The applicable test and principles on a r. 21.01(1)(b) motion are succinctly stated in McCreight v. Canada, 2013 ONCA 16 at para. 39 where Justice Pepall wrote:

“[39] As mentioned, on a r. 21.01(1)(b) motion, a claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 …, at para 17. The principles that may be extracted from this and other cases,…, are as follows:

− In the interest of efficiency and correct results, there is a need to weed out hopeless claims - this housekeeping dimension underlies r. 21: Imperial Tobacco, at paras. 19-20.

− If the cause of action pleaded has been recognized, all of its essential elements must be pleaded: Aristocrat Restaurants Ltd. (c.o.b. Tony’s East) v. Ontario, [2003] O.J. No. 5331 (S.C.), at para. 19.

− If the cause of action has not been recognized, this is not necessarily fatal. One must ask whether there is a reasonable prospect that the claim will succeed: Imperial Tobacco, at para. 21.

− The claim should not be struck merely because it is novel: Imperial Tobacco, at para. 21.

− Unless manifestly incapable of being proven, the facts pleaded are accepted as being true for the purposes of the motion: Imperial Tobacco, at para. 22.

− The pleading forms the basis of the motion; possible future facts that have not been pleaded may not supplement the pleading: Imperial Tobacco, at para. 23.

− No evidence is admissible on such a motion: Imperial Tobacco, at para. 22.

− The pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies: Wellington v. Ontario, 2011 ONCA 274… at para. 14, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 258.

− A motion to strike should not be confused with the summary judgment motion which has a different test, a different purpose, and different rules relating to evidence: Leadbeater [v. Ontario (2001), 2001 CanLII 28341 (ON SC), 16 C.P.C. (5th) 119 (S.C.O.)] at para. 14.”

Dr. Coolbear Motion

[22] The principal allegations against Dr. Coolbear are found at paras. 35, 45, 46, and the first para. numbered 63 of the Amended Statement of Claim. The essence of the Plaintiffs’ allegations is that Dr. Coolbear:

1. Introduced the idea of physical and sexual assault by B.K.2 to V.;

2. Told V. what Jennifer had alleged against B.K.2;

3. Passed along to CKCS what V. said B.K.2 did without investigating it herself or without ensuring it veracity; and,

4. Failed to appreciate V.’s condition and therefore, failed to properly treat V..

[23] It is undisputed that Dr. Coolbear is an independent service provider. There is no allegation that she was at any time employed by CKCS.

[24] Counsel for Dr. Coolbear submitted that:

1. The claim made against Dr. Coolbear is framed in negligence only. He points to para. 63 of the Amended Statement of Claim in support;

2. Dr. Coolbear never owed a duty of care to any of the K. family. Her duty of care was owed exclusively to her patient, V.;

3. She was required by s. 72 of the Child and Family Services Act to report any suspicion of alleged child abuse to authorities, which she did;

4. She is protected from civil action for her report to CKCS by s. 72(7) of the Child and Family Services Act;

5. The fact that CKCS and Chatham-Kent police initiated child protection and criminal charges confirms the appropriateness of her decision to report her suspicion of child abuse;

6. Dr. Coolbear’s communications with CKCS are protected by qualified privilege and, as such, are not actionable; and,

7. It is patently ridiculous to suggest that Dr. Coolbear was required to investigate V.’s allegations to confirm their accuracy before reporting the abuse.

[25] Counsel for the Plaintiffs submitted that:

1. The claim against Dr. Coolbear is not limited to negligence. As a contracted service provider to a government agency, she may be subject to Charter violation remedies;

2. Dr. Coolbear implanted the allegations of sexual abuse in V.;

3. Dr. Coolbear had no obligation to report V.’s alleged abuse as V. was not then in the K.s’ charge. Therefore, she is not entitled to the protection afforded by s. 72(7) of the Child and Family Services Act;

4. Dr. Coolbear failed to take reasonable steps to ascertain the veracity of V.’s allegations against B.K.2. That failure means the defence of qualified privilege is not available; and,

5. Dr. Coolbear should have made further inquiry given the changes to V.’s story over time and her past diagnosis. At a minimum, Dr. Coolbear should have objectively evaluated the allegations by V. before reporting them to CKCS. She did not have, and could not have had reasonable grounds to suspect that V. was the victim of child abuse at the hands of B.K.2.

[26] Both parties agree that the issue of qualified privilege is one that arises in the context of an action for defamation. In my view, the pleading in this case does not plead defamation as against this Defendant. None of the facts required to ground a defamation claim against Dr. Coolbear are pleaded. As above, this is not a case where one might discern a failed attempt to plead defamation and, in the interests of justice, grant leave to amend to fix the pleading. There is nothing to fix; the cause of action is simply not there.

[27] I will address the Charter claim against Dr. Coolbear later in this decision in the context of the claim against the CKCS Defendants. However, I conclude that no Charter claim can be advanced nor a Charter remedy granted against Dr. Coolbear for reasons set out below.

[28] I agree with counsel for Dr. Coolbear that on a plain and ordinary reading of the Amended Statement of Claim, the action against Dr. Coolbear is framed in negligence. Para. 63 of the pleading asserts both a duty of care and the breach of the standard of care. The issues raised may be summarized as follows:

1. Did Dr. Coolbear owe a duty of care to the Plaintiffs in her treatment of V. and/or in reporting V.’s allegations of past child abuse by B.K.2?

2. If so, could a court find liability in negligence on the facts pleaded?

3. Is the Plaintiffs’ claim barred by s. 72(7) of the Child and Family Services Act?

[29] With respect to the first issue, I will first deal with whether Dr. Coolbear owed a duty of care to the K. in the treatment of V. (see para. 63(b) of the Amended Statement of Claim). I will then consider whether Dr. Coolbear owed any duty of care to the K. in reporting V.’s allegations of abuse to CKCS.

(i) Existence of Duty of Care-Treatment of V.

[30] I note at the outset that;

1. Dr. Coolbear is alleged to be a psychologist treating V.. The doctor-patient relationship is exclusively between Dr. Coolbear and V.. There is no suggestion that she was treating V. as part of providing professional services generally to the K. family; and,

2. Although it is not entirely clear from the pleading, there was no suggestion in either the written or oral submissions of the parties that V. was a member of the K. family at the time she was under the care of Dr. Coolbear. Para. 25 of the Amended Statement of Claim indicates that in 2007, V. was returned to CKCS where she was subsequently placed for adoption with another family. While the exact timing of the treatment by Dr. Coolbear is not pleaded, it appears from the pleadings, and I am proceeding on the understanding that her treatment of V. came years after V. left the K. family.

[31] The Defendant, Dr. Coolbear, relies upon the decision of the Supreme Court of Canada in Syl Apps Secure Treatment Centre v. BD, 2007 SCC 38, for the proposition that no duty of care is owed by a professional providing psychological treatment of a child to the parent of that child.

[32] In Syl Apps, supra, a child, R.D., was apprehended by the Children’s Aid Society and placed in a foster home. She was then 14 years old. She wrote a story at school which alleged that her parents had physically and sexually abused her. A criminal investigation was conducted and no charges were laid. She was found to be a child in need of protection and temporary wardship was ordered. After being placed in foster care and transferred to several psychiatric facilities, she was sent to a treatment centre. She was made a permanent ward of the Crown with her consent. Her parents, grandmother and three siblings brought an action in damages against the treatment centre, two doctors and a counsellor at the centre. They alleged negligence in the treatment and care of the child; specifically, the treatment proceeded on the assumption that her parents had actually physically and sexually abused her which they alleged was not the case. They alleged that this treatment caused R.D. not to return to her family which deprived the family of a relationship with her. They sought damages of for nervous shock, emotional distress and physical and mental illness.

[33] The issue came before the court on a r. 21 motion. The motions judge concluded that the doctors owed a duty of care only to their patient. Likewise, he concluded that the treatment Centre and the counsellor were in analogous circumstances to that of a doctor; as such, they owed a duty of care only to the child, not to her family.

[34] Although the initial claim in Syl Apps was against the treating psychologists, the treatment Centre and counsellor, the family did not appeal the motion judge’s decision dismissing the claim as against the doctors. They appealed only in respect of the claims against the treatment Centre and counsellor.

[35] In the Ontario Court of Appeal, the majority allowed the appeal on the basis that a secure treatment facility and a social worker employed there may owe a legal duty of care to the family of a child in their care. Justice Sharpe dissented on the basis that the potential for conflicting duties under the statute and court orders, as well as the residual policy consideration of significant and serious interference with the capacity of these care providers to fulfil their primary and paramount duty to the child’s best interests negated a duty of care.

[36] In the Supreme Court of Canada, the court overturned the decision of the Ontario Court of Appeal and reinstated the decision of the motions judge who found there was no duty of care owed to the family. At para. 20 of the decision, Justice Abella wrote for the court:

For the reasons that follow, I agree with the motions judge and with Sharpe J.A. that 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. …

[37] In Syl Apps, the child was a ward of the State while at the treatment centre. The Supreme Court of Canada noted the inherent adversarial relationship between parents and the State when a child is placed in the care of the Children’s Aid Society or if Crown wardship is ordered. At para. 41, Justice Abella wrote:

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 provider’s transcendent statutory duty to promote the best interests, protection and well-being of the children in their care.

[38] I will return to this principle in the discussion of duty of care in the context of Dr. Coolbear’s reporting obligation under legislation.

[39] At para. 54 and 55, Justice Abella analogized the services being provided by the centre and counsellor to R.D. to those provided in a medical context. She wrote:

54. There is, in addition to the other possibilities for undermining the statutory duty to keep the child’s interests uppermost, another potential conflict. The Syl Apps Secure Treatment Centre and Mr. Baptiste are providing services to R.D. in a treatment context, a context that invokes medical paradigms of confidentiality and privacy. Numerous courts have recognized that a doctor does not owe a duty of care to the parent of his or her patient because that would create a situation of conflicting duties of care. In M. v. Newham London Borough Council, [1994] 2 W.L.R. 554 (Eng. C.A.), a mother’s claim against her child’s treating psychiatrist where the child had been apprehended by the local Authority, was dismissed on the ground that the psychiatrist did not owe a duty of care to the mother. Sir Thomas Bingham M.R. explained:

[T]he mother was not in any meaningful sense the psychiatrist patient. The psychiatrist duty was to act in the interests of the child and that might very well mean acting in a way that would be adverse to the personal interests of the mother; she was concerned with those interests only to the extent that they could have an impact on the interests of the child. In this situation of potential conflict, I do not think the psychiatrist can arguably be said to have owed a duty of care to the mother. …

(See also Sullivan v. Moody (2001), 207 C. L.R. 562, [2001] HCA 59.)”

55. Similarly, in Gardner v. Rusch (1999), 1999 CanLII 36771 (BC SC), 179 D.L.R. (4th) 336, the British Columbia Supreme Court struck a claim against a counsellor brought by a family of a patient who alleged that her family had sexually abused her. Beames J. indicated that if the counsellor owed a duty of care to the family in that case it “would put [the counsellor] in direct conflict with his primary duty which he clearly owed to his patient” (para 17). And in P.S. v. Batth, [1997] O.J. No. 4089 (QL) (Gen.Div.), Molloy J. refused to find that a doctor owed a duty of care to the parents of a child who complained of sexual abuse since “it is to that patient that she owed a duty of care” and “there can be no duty of care owed to the plaintiff” since it would be contrary to the doctor’s professional obligation to protect the best interest of the child (para 6).” [Emphasis added]

[40] In the case before me, V. was not at the material time a ward of the State, at least that is not pleaded. However, it is equally true that at the material time, the K. no longer stood in a familial relationship to her. They relinquished those rights and that relationship when they returned V. to CKCS in 2007. Thus, their position is even more remote than that of the plaintiffs in Syl Apps. They had no standing or authority to deal with V.’s treatment by Dr. Coolbear. By then, they were legal strangers.

[41] It is clear that no duty of care to the K. is owed by Dr. Coolbear for the following reasons:

1. Lack of proximity – at the time of treatment, the K. had no relationship to V.; and,

2. No recognized duty - even if the plaintiffs herein stood in a sufficiently proximate relationship to V., i.e. a familial relationship (which they do not), the law is well-established that a treating psychologist owes no duty of care to the family of his or her patient. His or her only obligation is to the patient, the child.

[42] Accordingly, I find that no duty of care was owed by Dr. Coolbear to the K. on the facts pleaded in the Amended Statement of Claim. V. was her patient and it is to V. only that her duty of care applied in the provision of treatment services. Therefore, the allegation at para. 63 (b) of the Amended Statement of Claim is struck with no leave to amend. To the extent any of the remaining allegations in paras. 35, 45, 46 and 63 of the Amended Statement of Claim relate to the appropriateness of treatment provided to V., they should also be struck without leave to amend.

(ii) Existence of Duty of Care - Reporting

[43] I turn to the remaining allegations against Dr. Coolbear and will now consider the extent of Dr. Coolbear’s obligations, if any, owed to the K. with respect to reporting V.’s allegations of child abuse to CKCS.

[44] The duty to report a child in need of protection is found in s. 72 of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended. The relevant portions of the section state:

(1) Despite the provisions of any other Act, if a person, including a person who performs professional or official duties with respect to children, has reasonable grounds to suspect one of the following, the person shall forthwith report the suspicion and the information on which it is based to a society:

1. The child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.

2. There is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglecting caring for, providing for, supervising or protecting the child.

3. The child has been sexually molested or sexually exploited by the person having charge of the said child or by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child.

4. There is a risk that the child is likely to be sexually molested or sexually exploited as described in para. 3. …

(3) A person who has a duty to report a matter under subsection (1) or (2) shall make the report directly to the society and shall not rely on any other person to report on his or her behalf.

(4) A person referred to in subsection (5) is guilty of an offence if,

(a) he or she contravenes subsection (1) or (2) by not reporting a suspicion; and

(b) the information on which it was based was obtained in the course of his or her professional or official duties.

(5) Subsection (4) applies to every person who performs professional or official duties with respect to the child including,

(a) a healthcare professional, including a physician, nurse, dentist, pharmacist and psychologist…

(7) This section applies although the information reported may be confidential or privileged, and no action for making the report shall be instituted against a person who acts in accordance with this s. unless the person acts maliciously or without reasonable grounds for suspicion.”

[45] Section 72 imposes a positive obligation on a psychologist like Dr. Coolbear to promptly report to the Society any reasonably based suspicion that a child she is treating has been, is or will be the victim of physical harm or sexual exploitation/molestation. It is an offence not to report where she has a reasonable suspicion of abuse.

[46] Plaintiffs’ counsel argued that there was no obligation on Dr. Coolbear to report because, at the time of the disclosure by V. to Dr. Coolbear, V. was no longer in the care or charge of the K.. In my view, that position runs completely contrary to the express language of the section as well as the manifest intent of this provision.

[47] The overriding objective of s. 72 is the protection of children who are inherently vulnerable. Better to have a score of reports and investigations that yield no abuse, than to have a single child continue to be abused or to have other children from the same family suffer similar abuse or worse.

[48] Section 72(1), item 1 requires a report to be made where a person, including a professional like Dr. Coolbear, has reasonable grounds to suspect that “the child has suffered physical harm, inflicted by the person having charge of the child….” Likewise, item 3 requires a report by a psychologist providing professional services who has reasonable grounds to suspect that “the child has been sexually molested or sexually exploited by the person having charge of the said child….” On a plain and ordinary reading, Dr. Coolbear was required to report V.’s allegations of physical and sexual assault by B.K.2 which occurred while she was in his charge.

[49] The logical consequence of the Plaintiffs’ argument is that once a child no longer resides with his or her abuser, there is no obligation to report the abuse even though that abuse may be quite recent and even though there may be other children still residing with the abuser who are potentially at risk of the same or similar abuse. That approach would completely undermine the underlying objectives of the provision and must be rejected.

[50] The Plaintiffs also argue that Dr. Coolbear owed a duty of care to them as part of or as a consequence of her obligation to report. Given the serious impacts that a report of child abuse may have on those alleged to have committed the abuse and on the family unit, the Plaintiffs argue that Dr. Coolbear owed them a duty of care to carefully consider the allegations made by V., to assess those allegations objectively, to consider inconsistencies, and to investigate those allegations before reporting.

[51] As in Syl Apps, the duty of care issue as it relates to reporting child abuse gives rise to the potential for competing duties and conflicts. The legislation clearly imposes an obligation to report based on a very low standard – “reasonable grounds to suspect”. The report triggers an investigation and it is in the investigation phase that the person accused has the opportunity to meet the allegations. Even where the Society acts on the allegations to take steps to protect the child at risk or other children at risk, the legislation provides a mechanism by which the person accused may fairly respond to the allegations.

[52] In my view, there could scarcely be a more obvious potential conflict for the person obliged to report suspected child abuse if he or she also had to consider and balance obligations owed to the person alleged to have committed the abuse. It is an untenable position. The legislation has placed a premium on the safety of children which trumps all other potential obligations.

[53] I find that Dr. Coolbear owed no duty of care to B.K.2 or to the K. family with respect to reporting the allegations of abuse made by V.. The legislation does not require reasonable and probable grounds to use language familiar in a criminal law context. The legislation decidedly imposes an obligation on a much lower standard, one which supports acting out of an abundance of caution for the benefit of children.

[54] The potential for a conflict of interest in these circumstances negates the imposition of a duty of care by Dr. Coolbear to the Plaintiffs. Accordingly, the Plaintiffs’ claim in negligence against Dr. Coolbear must fail. The allegations in paras. 35, 45, 46 and 63 as against Dr. Coolbear are struck without leave to amend.

Liability in Negligence

[55] Given my finding above that there was no duty of care owed by Dr. Coolbear to the K., it is unnecessary to consider whether on the facts pleaded a claim in negligence is made out.

Protection of Section 72(7)

[56] Para. 63(f) of the Amended Statement of Claim alleges that Dr. Coolbear was reckless in believing V. and had no reasonable basis to believe V.’s statements were credible, believable, trustworthy, reliable or persuasive. Section 72(7) of the Child and Family Services Act provides a full defence to any claims against a person who reports provided that in reporting, he or she is not acting maliciously or without reasonable grounds for suspicion.

[57] In my view, the allegation in para. 63(f) overstates what is required of Dr. Coolbear before she must report; however, the allegation evidences an intention to bring the claim within the exception in subsection 72(7). I would have granted leave to amend if the claim had been properly framed to assert a cause of action against Dr. Coolbear.

CKCS Defendants’ Motion

[58] At para. 78 of their Factum filed on the motion, the Plaintiffs submit that the facts pleaded are sufficient to make out the following causes of action: breach of s. 7 of the Charter, bad faith breach of statutory duties, abuse of process, abuse of power, malicious prosecution, false arrest, misfeasance in public office, negligent investigation and conspiracy.

[59] I pause at this point to observe that:

1. Some of these causes of action are not referred to anywhere in the Amended Statement of Claim, not even in para. one where a lengthy list of causes of action precedes the quantum of damages claimed;

2. Some of the causes of action listed in paragraph one of the pleading did not make the list in para. 78 of their Factum.

[60] Again, one has the sense that in pleading the Plaintiffs’ claim, little consideration was given to articulating a coherent theory of the case tethered to a particular cause or causes of action. The only cause of action readily discernible from the pleading by reference to its constituent elements is that of negligence.

[61] The CKCS Defendants assert that the Amended Statement of Claim is nothing more than a claim in negligence. Accordingly, the submissions on the motion by these Defendants focused on that cause of action to the exclusion of most, if not all, of the causes of action referred above.

[62] I will address each cause of action raised by the Plaintiffs by considering whether the Amended Statement of Claim pleads the facts to support its constituent elements. Some of the causes of action referred to by the Plaintiffs in their Factum or in para. one of the pleading require little analysis.

Conspiracy

[63] This cause of action is listed in both para. one of the pleading and para. 78 of the Plaintiffs’ Factum. The law with respect to pleading civil conspiracy is well-settled in Ontario. A proper plea of civil conspiracy requires the following:

1. a description of the parties to the conspiracy and their relationship;

2. the agreement between the defendants to conspire;

3. the purpose or objects of the conspiracy;

4. the overt acts alleged to have been done by each of the alleged conspirators in pursuance and furtherance of the conspiracy; and,

5. the injury and damage occasioned thereby: Normart Management Lyd. v. West Hill Redevelopment Co. (1998), 1998 CanLII 2447 (ON CA), 37 O.R. (3d) 97 at page 104 (C.A.).

[64] None of the required elements for this tort are pleaded. The reference to “conspiracy” in para. one of the Amended Statement of Claim is struck.

Defamation

[65] This cause of action is referred to in para. one of the Amended Statement of Claim but not in para. 78 of the Factum. To properly plead a claim in defamation, one must plead facts which establish the following elements:

1. the defendant(s) made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

2. the words in fact referred to the plaintiff; and,

3. the words were communicated to at least one person other than the plaintiff: Guergis v. Novak (2013), 2013 ONCA 449, 116 O.R. (3d) 280 (C.A.) at para. 39.

[66] Again, the material facts essential to a support each of the above constituent elements are entirely missing from the pleading. To the extent that there is reference to being exposed to public odium, it is pleaded as a consequence of the criminal charges and Child Protection Application and the refusal of Chatham-Kent Police to remove B.K.2’s name and fingerprints from their own data screening network. The CKPSB Defendants have brought no motion to strike.

[67] No claim in defamation is properly pleaded as against the moving party Defendants. Accordingly, the reference to defamation in para. one of the Amended Statement of Claim is struck.

Malicious Prosecution

[68] This cause of action is not referred to in para. one of the Amended Statement of Claim or anywhere in the Amended Statement of Claim. It is not clear to me why the Plaintiffs listed this cause of action in para. 78 of their Factum to respond to motions brought by the non-police Defendants. Neither Dr. Coolbear nor the CKCS Defendants initiated the criminal charges against B.K.2. Those charges were brought by police who, as mentioned, have not moved to strike the Plaintiffs’ pleading.

[69] To properly plead a claim for malicious prosecution, the plaintiff must plead the material facts that establish that the prosecution was:

1. initiated by the defendant;

2. terminated in favour of the plaintiff;

3. commenced or continued without reasonable or probable cause; and,

4. was motivated by malice or a primary purpose other than that of carrying the law into effect: McCreight v. Canada (Atty. Gen.) (2013), 2013 ONCA 483, 116 O.R. (3d) 429, 308 O.A.C. 128 (C.A.) at para. 43.

[70] It is not enough that the action(s) of a defendant led to criminal charges being filed to sustain a claim for malicious prosecution. The first element of this cause of action requires that the defendant be the one who initiated the prosecution.

[71] In any event, the facts necessary to support a claim for malicious prosecution against the moving party Defendants in this case are not pleaded. It may seem redundant or unnecessary to dismiss a cause of action that is found nowhere on the face of the pleading, but given the causes of action listed in the Plaintiffs’ Factum on these motions, I find that there is no cause of action for malicious prosecution pleaded against the CKCS Defendants or Dr. Coolbear.

Abuse of Process

[72] Again, this is a cause of action referred to in para. 78 of the Plaintiffs’ Factum but not in para. one of the Amended Statement of Claim. Likewise, this cause of action is not referred to in the body of the Amended Statement of Claim.

[73] In an action for abuse of process, the plaintiff must plead:

1. the original process was initiated for an improper and collateral purpose; and,

2. there existed some overt act or threat, separate and distinct from the proceedings themselves but related to the improper purpose: Lorch v. McHale (2008), 2008 CanLII 35685 (ON SC), 92 O.R. (3d) 305 (S.C.J.), aff’d 2009 ONCA 161.

[74] There is no allegation in the Amended Statement of Claim that legal proceedings were initiated for an improper and collateral purpose. It is not alleged that the Child Protection Application was brought to further some other distinct primary purpose, i.e. the Child Protection Application was a misuse of the court process to achieve another goal. It may be argued that the Child Protection Application was brought prematurely, without adequate investigation, but that is not a proceeding initiated for a collateral or improper purpose.

[75] I find that the Plaintiffs have not pleaded the tort of abuse of process as against the moving party Defendants. I make this finding for the same reason expressed above on the tort of malicious prosecution.

Misfeasance in Public Office/Abuse of Power

[76] Abuse of power is one of the causes of action listed in para. one of the Amended Statement of Claim, but misfeasance in public office is conspicuously absent from the pleading. Nevertheless, at para. 78 of the Plaintiffs’ Factum, Plaintiffs’ counsel lists both “Misfeasance in Public Office” and “Abuse of Power” as causes of action raised by the pleading.

[77] I have searched but cannot find reference to a separate tort of abuse of power. Plaintiffs’ counsel provided no case law on such a tort. So far as I can discern, abuse of power is one aspect of the tort of misfeasance in public office. Therefore, I address this cause of action with that understanding.

[78] To properly plead a claim for misfeasance in public office, the plaintiff must plead material facts which establish:

1. the defendant is a public officer;

2. the defendant engaged in some form of deliberately unlawful conduct in his/her capacity as a public officer;

3. the defendant did so knowing that the conduct was unlawful and that it was likely to cause harm to the plaintiff; and,

4. the defendant’s conduct caused material damage to the plaintiff: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263 at paras 23 and 29.

[79] The tort of misfeasance in public office is limited in scope. It does not apply where the conduct complained of is inadvertent or mere negligence in failing to meet the obligations of public office. This tort applies to a public officer who could have discharged his or her public obligations but wilfully chose to do otherwise: Odhavji Estate v. Woodhouse, supra, at para 36.

[80] It is not enough that the public officer knew that he or she was doing or omitting to do something which he or she was obligated to do as a public officer. The plaintiff must prove that when doing so, the public officer knew that harm to the plaintiff was a likely consequence of the misconduct. It is insufficient to plead that the defendant “knew or should have known”: Odhavji Estate v. Woodhouse, supra, at para 38.

[81] In Sagharian (Litigation Guardian of) v. Ontario (Minister of Education), [2007] O.J. No. 876 (S.C.J.), Justice Cullity struck a claim for misfeasance in public office for failure to plead full particulars of malice or malicious intent. He found that it was necessary to plead specific individuals who are alleged to have deliberately engaged in conduct they knew to be inconsistent with the obligations of their office: (see para 35).

[82] The Plaintiffs allege that one or more of the CKCS Defendants,

a. provided false and misleading information to Chatham-Kent Police (see paras. 34, 37, 59(q) and (x));

b. made false statements under oath and withheld information from police and the court (see paras. 59(u) and (v));

c. failed to provide material information to police and the court in a timely manner (see paras. 47 and 48);

d. failed to conduct a proper investigation before initiating and continuing Child Protection proceedings against B.K.2 (see paras. 40 and 59(j));

e. failed to halt or withdraw the Child Protection proceedings or to close their file in a timely way (see para. 49);

f. breached or condoned the breach of privacy of the Plaintiffs (see paras. 50 and 59);

g. put B.K.2 on the Child Abuse Registry and failed to remove his name from that Registry in a timely manner ( see paras. 48 and 59(y)); and,

h. failed to follow Child Protection Standards in Ontario (see para. 59(o)).

[83] Many of these allegations are found in para. 59 which is where the Plaintiffs particularize how the CKCS Defendants breached their duties of care and the standards of care applicable to them. They are pleaded as particulars of the Defendants’ negligence.

[84] The Plaintiffs do not allege that:

1. the CKCS Defendants knew at the time that the above conduct was unlawful;

2. the CKCS Defendants acted in the manner they did knowing that such conduct would likely cause harm to any of the Plaintiffs.

[85] Misfeasance in public office is an intentional tort. Mere inadvertence or negligence in carrying out one’s duties will not suffice. Deliberate conduct contrary to one’s public duties with the intent to harm the plaintiff is required. That is not pleaded here.

[86] I find that the tort of misfeasance in public office is not properly pleaded in this action. I strike that claim with leave to amend. The amended pleading should clearly plead the specific acts which are alleged to have been committed which the CKCS Defendant knew at the time were unlawful. It should address each of the constituent elements of the cause of action.

False Arrest

[87] This cause of action is not pleaded in the Amended Statement of Claim as against the CKCS Defendants. They did not arrest or detain B.K.2. Para. 34 of the Amended Statement of Claim baldly alleges that the Defendant C.R. provided false and misleading information to Constable Oriet which he negligently accepted, leading to Mr. G.K.2’s arrest. I take from that para. that the arrest was made by police.

Negligence

[88] In the Amended Statement of Claim, the Plaintiffs assert in para. one claims for damages for negligence, gross negligence and breach of statutory duty. There is no reference in the remainder of the pleading to gross negligence or to breach of any specific statutory duty. Given the absence of any specific statutory provision or statutory duty breached in the pleading itself, I infer that the reference at para. 78 of the Plaintiffs’ factum to “bad faith breach of statutory duties” relates to either,

i the availability of the statutory defence available to the CKCS Defendants in the Child and Family Services Act, i.e. they do not bar the Plaintiffs’ claim; or,

ii the alleged breach of Charter rights claim.

[89] The Plaintiffs allege, inter alia, that the CKCS Defendants were negligent in their investigation of the allegations made by V.. They assert that these Defendants owed a duty of care to them to act reasonably in investigating those allegations, the same as police have a duty when investigating criminal offences. Thus, negligent investigation is included in the negligence claim asserted against the CKCS Defendants.

[90] The CKCS Defendants move to strike the negligence claim on the following grounds:

1. The individual Defendants, C.R. and R.R., are shielded from liability by s. 15(6) of the Child and Family Services Act;

2. None of the CKCS Defendants owed a duty of care to any of the adult Plaintiffs;

3. With respect to the claim asserted by G.K.2 and S.K.1, there is no allegation that these Defendants did anything wrongful or failed to do something they should have done as a consequence of V.’s allegations against G.K.2. There is no causal link or connection between the damages allegedly suffered by the grandparents and the conduct of the CKCS Defendants.

[91] Section 15(6) of the Child and Family Services Act states:

No action shall be instituted against an officer or employee of a Society for an act done in good faith in the execution or intended execution of the person’s duty or for an alleged neglect or default in the execution in good faith of the person’s duty.

[92] Para. 59 of the Amended Statement of Claim expressly indicates that the CKCS Defendants, “individually and collectively, acted in bad faith”. As indicated above, the Plaintiffs allege that the CKCS Defendants acted in a manner that, on its face, could be seen as acting in bad faith in the execution of their duties. For example, it is alleged that the Defendant, C.R., provided false and misleading information to police and the court, including in sworn affidavits, to justify CKCS’ position.

[93] At this stage, I am required to assume that the allegations contained in the Amended Statement of Claim are true or capable of being proven true unless patently ridiculous. I am satisfied that the pleading alleges sufficient facts to place in issue whether the immunity provided by s. 15(6) of the Child and Family Services Act may be invoked by the individual Defendants, C.R. and R.R.. If they acted in bad faith in the discharge of their duties, s. 15(6) will not bar the Plaintiffs’ claim.

[94] The CKCS Defendants rely upon the decision in Syl Apps, supra, and cases decided in Ontario that derive from Syl Apps, for the proposition that when a CAS and its employees are exercising their child protection mandate under the Child and Family Services Act, the only duty of care that is owed is to the child or children who is/are the subject of that mandate. In short, these Defendants owed no duty of care to any of the adult Plaintiffs for anything done or not done by them arising from the allegations made by V..

[95] The CKCS Defendants acknowledge that they may owe a duty of care to the K. children, the scope of which is to be determined, which is why they did not move to strike the claim made on behalf of those children in this action.

[96] The Plaintiffs’ position is:

1. There is a contrary line of cases arising from the decision in Syl Apps, which restricts the application of the ratio in that case to circumstances where the child is in a treatment centre. I should prefer that line of authority; or,

2. I should find that the law on this point is unsettled.

[97] I have reviewed the case authorities provided by counsel and am satisfied that in Ontario, it is well-settled law that a Children’s Aid Society and its employees owe no duty of care to parents or other adult family members in its investigation of child protection matters or in the proceedings which flow therefrom: see Irish v. DCAS, 2015 ONSC 1721 at para. 22; Pereira (Litigation Guardian of) v. Ontario, 2015 ONSC 2249; DCM v. York Region Children’s Aid Society, 2011 ONSC 5636 at para. 13, aff’d, Major v. York Region Children’s Aid Society, 2012 ONCA 223.

[98] This principle applies equally to claims where allegations of gross negligence, improper conduct and bad faith are also made: GP v. Children’s Aid Society of Hamilton, 2011 ONSC 4231 at paras. 14-20; KAP The Children’s Aid Society of Toronto, 2007 CanLII 55832 (Ont. Sup. Ct.); DCM v. York Region Children’s Aid Society, supra.

[99] I agree with the following passage in the decision of Dunphy J. in Pereira (Litigation Guardian of) v. Ontario, supra, at para. 9:

There have been cases since the Syl Apps case which have sought to limit its scope to agencies providing for care or 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. [Emphasis added]

[100] The very real potential for conflict which would arise if a duty of care were owed to parents negates the recognition and imposition of such a duty. The statute contemplates an overarching duty to protect the safety and well-being of the child. That duty cannot be burdened with a concurrent duty owed to parents. The adversarial nature of most child protection investigations and proceedings precludes such a duty.

[101] Therefore, I agree that the claim of the adult plaintiffs against the CKCS defendants in negligence or gross negligence must be struck because no duty of care was owed to them. Similarly, the claim of bad faith fails because it can have no independent basis in law once the underlying claim in negligence is dismissed: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24 at para. 77.

Intentional Infliction of Nervous Shock

[102] It is not clear from the Amended Statement of Claim whether the adult Plaintiffs seek nervous shock damages as a head of damage suffered or are asserting a claim for the intentional infliction of nervous shock. For purposes of the motion before me, I will assume the latter. I note this was not addressed in either oral or written submissions made by the Plaintiffs, but “infliction of nervous shock” is referred to in para. one and elsewhere in the Amended Statement of Claim.

[103] The constituent elements of this intentional tort are:

1. Flagrant or outrageous conduct;

2. Calculated to produce harm;

3. Resulting in a visible and provable illness: Prinzo v. Baycrest Centre for Geriatric Care, 2002 CanLII 45005 (ON CA) at para. 48.

[104] The vast majority of the allegations made against the CKCS Defendants do not amount to “flagrant or outrageous conduct”. The only allegations that arguably rise to that level are those which allege that Ms. C.R. provided false and misleading information to police and that she swore false affidavits.

[105] The Amended Statement of Claim does not allege that the actions of the CKCS Defendants were calculated to cause harm to the adult plaintiffs. This is an intentional tort. The subjective intent of the defendant is a material component.

[106] Again, the Plaintiffs have not properly pleaded the material facts to sustain this cause of action.

Section 7 Charter Claim

[107] The Plaintiffs seek constitutional damages pursuant to s. 24(1) of the Charter of Rights and Freedoms which they contend arise from the Defendants’ breach of their s. 7 Charter right to security of the person; specifically, to be free from unwarranted State intrusion in the parent-child relationship.

[108] I note the following with respect to this claim:

1. The Plaintiffs do not seek declaratory relief;

2. The Plaintiffs do not challenge the constitutionality of any of the provisions the Child and Family Services Act, or any other legislation;

3. The claim for damages under s. 24(1) is made against all Defendants “alone and in concert”, including the individuals named in the Amended Statement of Claim; and,

4. Para. 69 of the Amended Statement of Claim incorporates by reference all of “the aforesaid actions of the Defendants” as a breach(es) of the Plaintiffs’ s. 7 rights. There is no effort made to delineate specifically which actions by which Defendants violate s. 7 and how.

[109] Section 24(1) of the Charter states:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[110] The following principles emerge from the cases which have considered the availability and scope of Charter damages:

1. A remedy under s. 24(1) is available where there is some government action that infringes upon a person’s Charter rights: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at para. 43;

2. The requirement of a generous and expansive interpretative approach applies equally to Charter remedies as to Charter rights: Doucet-Boudreau v. Nova Scotia (Minister of Education), supra, at para. 24;

3. Charter damages are not private law damages, but constitute a distinct constitutional remedy: Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 at para. 22;

4. Charter damages compensate an individual for breaches of the individual’s constitutional rights: Vancouver (City) v. Ward, supra, at para. 22;

5. An action for public law damages including constitutional (Charter) damages lies only against the State and not against individual actors. Actions against individuals should be pursued using existing causes of action: Vancouver (City) v. Ward, supra, at para. 22;

6. When awarding constitutional damages against the State, the court may consider the underlying policy considerations that are engaged when private law damages are awarded against the State: Vancouver (City) v. Ward, supra, at para. 22;

7. In deciding whether an award of Charter damages is an “appropriate and just” remedy in the circumstances of a particular case, the court must engage in a four step process:

(1) determine whether a Charter breach has been established;

(2) determine whether an award of damages would further the general objects of the Charter, i.e. a functional justification for damages which considers compensation, vindication and deterrence;

(3) assess whether there are countervailing considerations that render Charter damages inappropriate or unjust; and,

(4) determine the quantum of damages appropriate to the breach in the circumstances of the case: Vancouver (City) v. Ward, supra, at paras. 23, 24, 33 and 46 – 52;

8. The extent to which private law damages adequately compensate for the conduct complained of is material to the assessment of whether an award of Charter damages is “appropriate and just”: Vancouver (City) v. Ward, supra, at para. 34;

9. The courts have recognized two countervailing considerations in step three above – a declaration of a Charter breach may be a sufficient remedy and concern for effective governance – but the list of such considerations is not closed: Vancouver (City) v. Ward, supra, at paras. 37 – 39;

10. The existence of a potential private law remedy such as damages in tort does not automatically bar a s. 24(1) claim. However, a concurrent action in tort bars s. 24(1) damages if the result would be double compensation: Vancouver (City) v. Ward, supra, at para. 36 citing with approval Simpson v. Atty. Gen., [1994] 3 N.Z.L.R. 667 (C.A.) at page 678;

11. Where there is a substantial overlap between private law and s. 24(1) actions against the government, a damages claim under the Charter may be defeated at the third step if the State can show that another remedy is available to effectively address the Charter breach: Henry v. British Columbia (Atty. Gen.), supra, at para. 38;

12. Once the claimant establishes basic functionality having regard to the objects of constitutional damages, the evidentiary burden shifts to the State to show that the engaged functions can be fulfilled through other remedies. The claimant need not show that he or she has exhausted all other recourses; rather, the burden rests on the State to show that other remedies are available in the particular case that will sufficiently address the breach: Henry v. British Columbia (Atty. Gen.), supra, at para. 120;

13. Damages under s. 24(1) may include both pecuniary and non-pecuniary or general damages: Vancouver (City) v. Ward, supra, at paras. 48 – 51;

14. The seriousness of the breach, both as to the impact of the breach on the claimant and the seriousness of State misconduct, must be considered in the determination of the quantum of damages: Vancouver (City) v. Ward, supra, at paras. 52 and 53;

15. Charter damages are an evolving area of the law that must be allowed to develop incrementally. Courts must be careful not to stifle the emergence and development of this important remedy: Henry v. British Columbia (Atty. Gen.), 2015 SCC 24 at para. 35.

Step 1: Determine Charter Breach

[111] As noted in the preceding para., Charter damages are available against the State, not individual actors. Accordingly, the Plaintiffs’ claim for Charter damages as against Dr. Coolbear, Ms. C.R. and Ms. R.R., personally, must fail. That is not to say, however, that the conduct of the employees of CKCS is irrelevant. State agencies act through their employees and their acts or omissions may provide the factual foundation for a claim that Charter rights have been violated for which the State agency may be liable.

[112] There are two principal challenges to the assessment of whether the adult Plaintiffs’ s. 7 Charter rights have been violated, both of which lie with the pleading itself. First, some of the allegations of wrongdoing are bald allegations without the requisite detail to properly assess them. For example, at para. 34, the Plaintiffs plead: “C.R. provided false and misleading information to Chatham-Kent Police Service Constable Gary Oriet.” What was the false and misleading information provided? It is not for me to guess. This is not the only place in the pleading where such flagrant shortcomings are evident.

[113] Second, a number of the allegations relied upon to support the claim for s. 24(1) damages against CKCS are found in para. 59 of the Amended Statement of Claim which is framed as a plea of the particulars of negligence. There is no specific pleading of the material facts which the Plaintiffs assert constitute a violation of their s. 7 rights. If this was “first and foremost” a claim for Charter damages, it fails miserably to convey that claim in a coherent and focused way.

[114] It is certainly understandable that counsel for CKCS characterized the Plaintiffs’ claim as one in negligence. As a consequence, CKCS was unable to make any meaningful submissions as to whether or not a breach of s. 7 rights occurred, whether there are countervailing factors engaged which make Charter damages an inappropriate and unjust remedy, and whether damages under s. 24(1) can be functionally justified. I share counsel’s frustration and sense of helplessness in the face of this pleading.

[115] At this stage of the decision, I am at a crossroads:

1. Try to extract those allegations which might be construed as supporting this constitutional claim, and undertake the required analysis on that basis;

2. Strike the claim with leave to amend to properly plead the claim that their s. 7 Charter rights have been violated which justifies an award of s. 24(1) Charter damages;

3. Strike the claim with no leave to amend.

[116] I started down the path of option #1 but soon found myself effectively redrafting the claim to make sense of the Plaintiffs’ position. That is not my role. I reluctantly conclude that there may well be a claim here for Charter damages, but it is impossible for me to properly determine that issue on this motion on the state of the current pleading. I come to that result having regard to the low bar applicable under R. 21 with the assumption that the facts pleaded are true.

[117] Therefore, with respect to the claim for damages under s. 24(1) of the Charter, I strike that claim with leave to amend. The amendments should particularize the specific Charter right infringed or violated (more than simply pleading s. 7), the specific conduct alleged to violate the s. 7 Charter rights of each of the Plaintiffs, and any facts relied upon to functionally justify the award of these damages in addition to private law damages.

[118] The amended pleading may well give rise to a further motion to strike the s. 24(1) damages claim given the misfeasance in public office claim. Both claims focus on egregious unlawful conduct by the State which allegedly caused harm to the Plaintiffs. It may be that they overlap entirely and the remedy for damages for the alleged tort renders damages under s. 24(1) an inappropriate and unjust remedy under step #3 of the required analysis. That issue is best addressed once an amended and proper pleading is filed.

Conclusion

[119] In the result, I have dismissed the claim against Dr. Coolbear entirely. I have also struck various of the causes of action as against the CKCS Defendants without leave to amend either because they are barred by statute, are not pleaded or do not arise on the facts alleged, or are not available as a matter of law –see negligence, no duty of care owed. I have struck other causes of action but with leave to amend.

[120] I note that the CKPSB Defendants did not bring a motion nor did they participate in these motions. Nevertheless, there are rulings herein that have implications for those Defendants; for example, the s. 24(1) Charter damages claim cannot be made against individuals.

[121] It seems to me that this is not a pleading that can be readily salvaged by a few paras being added or some parts simply stroked out. Leave is granted to deliver a Fresh Statement of Claim.

[122] In summary, I order as follows:

1. The Plaintiffs’ action as against Dr. Coolbear is dismissed.

2. The Plaintiffs’ claim for s. 24(1) Charter damages as against C.R. and R.R., personally, is struck without leave to amend.

3. The Plaintiffs’ claim for s. 24(1) Charter damages as against Chatham-Kent Children’s Service is struck with leave to amend in accordance with para 111 above.

4. The adult Plaintiffs’ claims for damages in negligence, bad faith, breach of statutory duty, conspiracy, defamation, malicious prosecution, false arrest, abuse of process and intentional inflectional of nervous shock as against the Defendants, Chatham-Kent Children’s services, C.R. and R.R., are struck without leave to amend.

5. The adult Plaintiffs’ claim for misfeasance in public office as against Chatham-Kent Children’s Services, C.R. and R.R. is struck with leave to amend in accordance with para 80 above.

6. The Plaintiffs are granted leave to deliver a Fresh Statement of Claim within 45 days of the date of this decision.

[123] If the parties cannot agree on costs, they may make costs submissions in writing within 21 days not to exceed 5 pages.

Justice R. M. Raikes

Date: March 18, 2016