T.F. v. Galloway, 2016 ONSC 4252

CITATION: T.F. v. Galloway, 2016 ONSC 4252

No. 204/14 (Peterborough)

Date: 20160627

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: T.F., and M.N., by her litigation guardian T.F., Plaintiffs

- and -

Donna Galloway, and The Kawartha Haliburton Children’s Aid Society, Defendants

BEFORE: Bale J.

COUNSEL: Julie Kirkpatrick, for the plaintiffs

James Dakin, for the defendants

HEARD: February 17, 2016

ENDORSEMENT

[1] In this action, T.F. in her personal capacity, and as litigation guardian of her infant daughter M.N., claims damages from the Kawartha Haliburton Children’s Aid Society (KHCAS), and one of its employees, Donna Galloway.

[2] The plaintiffs’ claim arises from a child protection investigation carried out by KHCAS, and criminal charges of sexual assault and sexual interference laid against T.F.’s husband, J.N., in relation to their daughter M.N.

[3] On this motion, the defendants request an order, pursuant rule 21 of the Rules of Civil Procedure, dismissing the claim of T.F. in her personal capacity (only), without leave to amend.

[4] The issue to be determined on this motion is whether, assuming that the facts pleaded in the statement of claim are capable of proof, it is “plain and obvious” that T.F. has no cause of action against the defendants.

Background

[5] In June of 2012, T.F. attended at the offices of KHCAS with a private investigator whom she had retained, and expressed concern that her husband may have sexually abused their daughter.

[6] The Ontario Provincial Police were notified of the allegation, and the police obtained video statements from both T.F. and her daughter.

[7] J.N. was then charged with sexual assault and sexual interference. At a bail hearing held the following day, he was released pending trial, with one of the conditions of his recognizance being that he have no contact with his daughter.

[8] In July of 2012, T.F. provided an affidavit to the police, and to Donna Galloway, in which she suggested that her concerns relating to sexual abuse of her daughter may have been a result of her “long-standing, but only recently diagnosed, general anxiety disorder”.

[9] Notwithstanding the contents of the affidavit, the prosecution of J.N. continued through a preliminary inquiry, and a thirty-five day trial, following which he was acquitted on all charges.

[10] As a result of the prosecution, M.N. and her father had no access to each other, between June 2012 and February 2014.

T.F.’s claim

[11] T.F. alleges that she suffered damages as a result of improper conduct on the part of Donna Galloway, for whose conduct KHCAS is vicariously liable.

[12] The damages alleged by T.F. include “emotional, psychological, and mental trauma and upset, anxiety, fear, stress, humiliation, damage to her reputation, damage to her relationships, and loss of enjoyment of life”, as well as a loss of income.

[13] As I understand it, the core of T.F.’s claim is that her damages flowed from the continued prosecution of J.N., and the effect of that prosecution on her family and other relationships. The question then is whether Donna Galloway may be held responsible for the fact that the prosecution continued, even after T.F. informed the police and KHCAS of her doubts relating to her earlier allegations of sexual abuse.

[14] The first point to be made is that in relation to the prosecution, Donna Galloway was merely a witness, without power to suspend or terminate the prosecution. So, what did she do or say, but for which, the Crown Attorney would not have continued the prosecution?

[15] In the statement of claim, T.F. pleads causes of action against the defendants, under the following titles:

• “Negligent investigation, bad faith, misfeasance, and abuse of process”; and

• “Defamation”.

[16] Under the first title, there are two classes of complaints:

• that Donna Galloway conducted a negligent investigation; and

• that Donna Galloway assisted in the criminal prosecution of J.N., to the detriment of T.F. and M.N.

[17] In addition, T.F. alleges a breach of her rights under section 7 of the Canadian Charter of Rights and Freedoms and claims an “appropriate and just remedy”.

Negligent investigation

[18] The facts pleaded with respect to the alleged negligent investigation are the following:

• that Donna Galloway did not conduct an independent interview with M.N.;

• that Galloway held to “an unreasonable and unyielding belief, wholly unsupported by the available information, that J.N. had committed a sexual assault on M.N., and that T.F. had changed her position to protect J.N. from criminal prosecution”;

• that Galloway was not prepared to consider the information contained in the affidavit sworn by T.F., or to review her earlier investigation; and

• that the defendants should have conducted a further investigation, independent of the police investigation.

[19] The complaints of negligent investigation raise the issue of whether, in conducting an investigation, a children’s aid society has a duty of care to both the child and her parents, or to the child only. There are two lines of authority in this court, each coming to a different conclusion on this issue.

[20] The genesis of the disagreement is the case of Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38. In that case, the Supreme Court held that where a child is placed in the care of a children’s aid society or the Crown, there is an inherent conflict of interest between the parents of the child and the state, and that the society or the Crown owes a duty of care only to the child, and not to the parents. The disagreement which has arisen since the decision in Syl Apps is whether the same considerations apply at the investigative stage, before a society decides that a child is in need of protection, and apprehends the child.

[21] Since the date that the motion in the present case was heard, two new decisions involving this issue have been released, each containing an exhaustive review of the authorities, and each coming to a different conclusion: D.T. v. Highland Shores Children’s Aid 2016 ONSC 1432 (released February 26, 2016); and B.K. v. Chatham-Kent Children’s Services, 2016 ONSC 1921 (released March 18, 2016).

[22] In D.T., M.J. Quigley J. reasoned that before a child is found to be at risk, “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”, and that therefore “there is little to no risk of conflict between the parents’ wishes, and the child’s best interests, at the investigative stage. He held that the potential for conflict was not sufficient to negate the prima facie duty of care at that stage (at para. 49). He also held that there was no binding appellate precedent on the issue, and pointed out that the jurisprudence in this court is mixed (at para. 61).

[23] In B.K., Raikes J. held that there is no principled difference between the role of a children’s aid society in investigating possible child abuse, and its role in providing care or shelter once a decision to apprehend has been made. In both cases, he reasoned, the overarching duty to protect the safety and well-being of the child precluded a concurrent duty to the parents of the child (at paras. 99f). He also held that it is well-settled law that a children’s aid society and its employees owe no duty of care to the parents of the child involved (at para. 97).

[24] With respect, on the main issue, I prefer the line of authority followed by Raikes J. in B.K. In Syl Apps, in relation to the care or treatment of a child who has been apprehended, the Supreme Court held that because of the potential for conflict, between the interests of the parents and of the child, a categorical approach was required, rather than a case specific factual inquiry. I see no reason why the same approach should not be used in relation to parents’ complaints concerning child protection workers, at the investigative stage. Whenever a child protection investigation is commenced as a result of the alleged abuse of a parent, there is potential for conflict, between the interests of the parent, and of the child.

[25] However, on the issue of whether the issue is settled law, I agree with Quigley J. I have been provided with no appellate authority negating a duty of care to the parents of a child, at the investigative stage. In addition, the present case contains a somewhat different twist, in that it is claimed that the children’s aid society had a duty of care not to the alleged abuser, but rather to the other parent. The same principles may apply, or may not. While the interests of the other parent, and of the child, may be more likely to be aligned, such is not always the case.

[26] In the absence of settled law, the defendants’ motion to dismiss T.F.’s claim in negligence must fail. It is not the function of the court, on a pleadings motion of this kind, to resolve unsettled, complex, or novel questions of law: Amato v. Welsh, 2013 ONCA 258, at para. 89.

Assisting in criminal prosecution of J.N.

[27] T.F. pleads that Donna Galloway used her role as a child protection worker to assist in a criminal prosecution to the detriment of M.N. and herself. In this regard, the conduct complained of consists of the following allegations:

• that there was ongoing communication between Galloway and the Crown Attorneys who conducted the prosecution, even after she no longer had responsibility for the KHCAS file;

• that she provided a video statement to the police;

• that she “was required to attend court at a bail review in December 2012, and to testify at trial in June 2014;

• that she did not “support access between M.N. and J.N.;

• that she failed to accurately report to the crown attorney, the police and the court; and

• that she withheld exculpatory information from the police, the crown attorney and the court.

[28] The continuation of the prosecution of T.F.’s husband was not within Donna Galloway’s control. She was a mere witness. No facts are pleaded from which it could be concluded that the Crown would have discontinued the prosecution, but for something unlawful that Galloway said or did. There is nothing inherently wrong with a child care worker communicating with the police, providing a video statement, giving evidence in court, holding a belief, or opposing access. The question would be whether she made false statements to the police, or failed to disclose relevant evidence to the police, because she wanted the child’s father to be convicted.

[29] With respect to the allegation that exculpatory information was withheld from the police, again no particulars are provided, and it is to be noted that T.F. provided the police with a copy of her affidavit, and would have been welcome to provide any other information which she thought should be considered.

[30] In the result, the plaintiffs’ claim of “bad faith, misfeasance, and abuse of process”, based upon Galloway’s role in the prosecution of J.N., is insufficiently pleaded, and will therefore be struck out.

Defamation

[31] The facts pleaded in support of the claim of defamation are the following:

• that Donna Galloway “falsely defamed the plaintiff T.F. by her various oral statements, during the investigation, during her discussions with the Crown and police, and during the bail review and trial proceedings, by wrongfully asserting that T.F. was failing to protect her child M.N., by raising her serious concerns with the continued prosecution of J.N.; and

• that by making those statements, “Galloway suggested that T.F. was acting in a manner that preferred the interests of her husband J.N. over those of her child M.N.”

[32] In my view, the pleading of defamation is defective. The actual words alleged to have been spoken by Ms Galloway are not pleaded. Whatever was said by her in her video statement, and as a witness on the bail review application and at trial, is a matter of record, and should be specifically pleaded. And, the pleading of “wrongful assertions” made “during the investigation” and “during her discussions with the Crown and police” would appear to be mere speculation. On the hearing of the motion, plaintiffs’ counsel candidly admitted that she had no knowledge of what was said. In the absence of such knowledge, the plaintiffs are not entitled to rely upon a pleading of “wrongful assertions”, hoping to discover a cause of action.

[33] With respect to the pleading of defamation, the defendants rely upon the doctrine of absolute privilege. However, without knowing what words were spoken, or whether Ms Galloway had a duty to T.F., it cannot be said that it is plain and obvious that a properly pleaded claim in defamation would be defeated by the defence of absolute privilege.

Claim under section 7 of the Charter

[34] T.F. alleges a breach of her rights under section 7 of the Canadian Charter of Rights and Freedoms, and claims an “appropriate and just remedy”. In support of this cause of action, she relies on “the facts pleaded aforesaid”. However, given that some of the facts pleaded in the statement of claim will not survive the amendment of the claim that I will order, and in the absence of any specific pleading of material facts in support of the claim, T.F.’s claim for a remedy under section 24(1) of the Charter will be struck out.

Disposition

[35] In summary,

• T.F.’s claim in negligence may continue;

• her claim of “bad faith, misfeasance, and abuse of process” will be struck out;

• her claim of defamation is struck out; and

• her claim based upon a breach of her Charter rights is struck out.

[36] The defendants argue that impugned claims should be struck out, without leave to amend, because they have been exposed to a claim for $8,000,000, for a period of two years, since the action was commenced. I disagree. If T.F. is able to amend her claim to properly plead the claims to be struck out, then she is entitled to do so, in order that those claims may be determined on their merits.

[37] In the result, T.F. will have until August 5, 2016 to deliver an amended pleading that complies with these reasons. Because of the way that the various causes of action, as presently pleaded, are intertwined, I am unable to make a more specific order, on a paragraph-by-paragraph basis.

“Bale J.”

Date: June 27, 2016