CITATION: A.L. v. The Children’s Aid Society of Ottawa, 2016 ONSC 818
COURT FILE NO.: 14-62709
DATE: February 1, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
A.L.
Plaintiff
Self-Represented
- and -
THE CHILDREN’S AID SOCIETY OF OTTAWA
Defendant
Martin A. Smith for the Defendant
HEARD: December 17, 2015
REASONS FOR DECISION
James, J.
Introduction
[1] The defendant, The Children’s Aid Society of Ottawa (hereinafter referred to as “CAS”) has brought this motion for an order pursuant to Rule 21.01(1)(b) striking out the plaintiff’s statement of claim on the grounds that it discloses no reasonable cause of action. CAS says the plaintiff cannot succeed in this lawsuit because CAS does not owe him any duty of care. Its duty of care is confined to children who may need protection, not their parents or caregivers.
[2] The plaintiff in this case is the father of W.L., who was the subject of the actions taken by CAS. He is currently self-represented but previously had counsel.
[3] The initial statement of claim was issued on November 28, 2014 under the simplified procedure seeking special damages of $20,000, general damages of $30,000 and punitive damages of $30,000.
[4] On May 14, 2015 the CAS brought a motion for an order striking out the statement of claim without leave to amend.
[5] Shortly before the motion was heard, the plaintiff served a notice that he intended to act in person.
[6] The motion was adjourned on consent to September 3, 2015 on terms which included a timetable for the exchange of amended pleadings so that parties would be in a position to address any outstanding issues on the return of the motion in September.
[7] A fresh as amended statement of claim was filed by the plaintiff on May 15, 2015. The damages claimed by the plaintiff in the amended claim were substantially increased.
[8] When the matter was returned to court in September 2015, the presiding judge noted that the plaintiff had “failed to file responding materials in accordance with the timetable” and he was given a further extension to December 17, 2015, pre-emptory to the plaintiff, to “retain counsel and file responding materials by November 17, 2015”. The presiding judge referred to a stack of exhibits tendered by the plaintiff at the hearing that were not attached to a responding affidavit. The presiding judge went on to provide that there were to be no other adjournments. The plaintiff was ordered to pay costs thrown away fixed in the amount of $744.
[9] It is the Fresh as Amended Statement of Claim which is now the focus of the defendant’s amended notice of motion.
The Fresh as Amended Statement of Claim
[10] The basic allegations in the statement of claim, as amended, are as follows:
a) the plaintiff and his spouse B.J. are the parents of W.L., born […], 2009 and at the material time they were residing together as a family in Ottawa (paragraphs 2, 4).
b) The plaintiff spouse had medical issues requiring medication (paragraph 6).
c) The plaintiff’s wife’s mother, Ms. M., made false accusations that prompted CAS to engage with the family (paragraph 7).
d) The CAS involvement included an attendance at the plaintiff’s residence with police support on February 22, 2013 (paragraph 4, 8, 12).
e) The plaintiff’s son, W.L., was removed from the care and custody of the plaintiff for a period of many months (paragraph 17).
f) The plaintiff’s wife was assaulted, intimidated and forcibly confined. (paragraph 13).
g) The plaintiff was intimidated and threatened by the police. The CAS apprehended W.L. illegally and committed a criminal offence by doing so (paragraph 15).
h) CAS was deceitful in representing the status of the plaintiff in relation to drugs, categorizing the plaintiff’s use as problematic.
i) CAS relied on this deliberate falsehood to forward its objective of removing W.L. from the care and custody of the plaintiff (paragraph 16).
j) As a result of deceit, misrepresentation and intentional infliction of mental suffering, the child W.L. was removed from the custody and care of the plaintiff and the plaintiff consequently claims as damages the unnecessary costs involved in his attempting to have the child returned (paragraph 17).
The Applicable Law
[11] The legal test applicable to Rule 21 motions is accurately summarized by the CAS in its factum at paragraph 10 as follows:
The following principles apply to a Rule 21 motion to strike a pleading for failing to disclose a reasonable cause of action or defence: (a) the material facts pleaded must be deemed to be proven or true, except to the extent that the alleged facts are patently ridiculous or incapable of proof; (b) the claim incorporates by reference any document pleaded and the court is entitled to read and rely on the terms of such documents as if they were fully quoted in the pleadings; (c) novelty of the cause of action is of no concern at this stage of the proceeding; (d) the statement of claim must be read generously to allow for drafting deficiencies; and (e) if the claim has some chance of success, it must be permitted to proceed. (See Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), 2013 ONCA para. 30).
[12] Section 15(6) of the Child and Family Services Act, R.S.O. 1990 C.c.11, as amended, (“CFSA”) creates a statutory immunity to the effect that no action shall be instituted against an officer or an 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.
[13] No evidence is permitted on a motion to dismiss a statement of claim under rule 21.01(1)(b). Here, however, the plaintiff filed what I will refer to as a compendium and requested that the court refer to it at the hearing of the motion. Counsel for the CAS did not object. The compendium contained an assortment of hearsay and unsworn documents, the plaintiff’s factum prepared for use in the CAS proceeding, brochures, memos and outlines of legal argument. This documentation has not been considered in assessing the respective positions of the parties on the motion.
[14] The decision to strike out a statement of claim and not grant leave to amend should only be made in the clearest of cases, when it is plain and obvious that no tenable cause of action is possible on the facts alleged. (See South Holly Holdings Ltd. v. Toronto Dominion Bank [2007] ONCA 456 at paragraph 6.)
Position of the CAS
[15] The moving party bases its submissions on the lack of a duty of care owed by the defendant to the plaintiff. (See Syl Apps Secure Treatment Centre v B.D., 2007 SCC 38); G.P. v The Children’s Aid Society of Hamilton, 2011 ONSC 4231 and D.S.B. v Kenora Rainy River Child and Family Services, 2014 ONSC 5621.
[16] The mandate of CAS is to promote the best interests, protection and well-being of children (section 1 CFSA.) While recognizing that families are the core social unit of society and entitled to respect and privacy, the CFSA grants an overriding power to child protection agencies to ensure that children are protected from undue harm including harm from the family (Apps, page 87). Naturally, there can be tension between parents and the CAS as it performs its statutory duties. The process can be quite adversarial at times. The risk in permitting aggrieved parents to bring subsequent claims is that it often leads to re-litigating many of the same issues that arose during the course of the previous child protection hearings. This is an undesirable situation, is contrary to the principle of finality and should not be encouraged.
Discussion and Analysis
[17] The CAS bases its position on the submission that the CAS did not owe a duty of care to the plaintiff. The concept of “duty of care” is an aspect of negligence law. The plaintiff’s claim, however, is not a claim in negligence. Instead, the statement of claim focuses on allegations of intentional wrongdoing rather than inadvertent errors or omissions that constitute negligence.
[18] The plaintiff uses words such as deceit, misrepresentation and intentional infliction of mental suffering. A fair reading of the statement of claim leads me to the conclusion that the plaintiff is alleging a lack of good faith on the part of CAS in its dealings with the plaintiff.
[19] The protection offered by section 15(6) CFSA may not extend to the allegations made by the plaintiff in the statement of claim. Firstly, section 15(6) is directed towards the protection of individuals, not institutions, organizations or corporations. In this case, the plaintiff has only named CAS as the defendant. The plaintiff has not sued any individuals.
Secondly, when allegations of bad faith arise the statutory immunity provisions may be inoperative. (See Conway v Law Society of Upper Canada and Loren Levine, 2016 ONCA 72 at paragraph 21).
[20] The bald allegations contained in the statement of claim do not amount to a concise statement of the material facts on which the party relies to support his or her claim as required by rule 25.06(1).
[21] In this situation the court is faced with a choice:
a) give the plaintiff another opportunity to correct the serious drafting deficiencies in the statement of claim by supplying sufficient details and material facts to make out the cause of action pleaded and to enable the CAS to know the case it has to meet; or
b) dismiss the claim without knowing the material facts necessary to support the causes of action pleaded in the statement of claim.
[22] The court should consider whether the pattern of acts or omissions alleged by the plaintiff, even if properly pleaded, could not give rise to a cause of action. Where the court cannot reach this conclusion, it ought to grant leave to amend the pleading to permit the plaintiff an opportunity to correct the deficiencies in pleading the cause of action alleged. (See Conway at paragraph 19).
[23] There are other problems with the statement of claim, for example paragraph 13 refers to improper actions in relation to the plaintiff’s wife but she is not named as a plaintiff in the lawsuit. Similarly, in paragraph 15, the plaintiff says that W.L. was apprehended illegally but W.L. is not a party and, being a minor, no one has been appointed as a litigation guardian on his behalf. Also, in paragraph 15, the plaintiff alleges improper conduct by the police but the police service is not included as a defendant.
Disposition
[24] The fresh as amended statement of claim is struck out with permission to the plaintiff to amend his claim to correct the deficiencies in the statement of material facts relied upon by the plaintiff. For the sake of clarity, the plaintiff is not entitled to add or delete parties or add new causes of action without obtaining a court order granting him permission to do so first. The plaintiff should understand that a third opportunity to amend the statement of claim may be difficult to obtain.
[25] The amended statement of claim shall be filed and served within thirty days.
[26] On the issue of the costs of the motion, the CAS was not successful in having the claim struck out without leave to amend. Similarly, it cannot be said that the plaintiff was successful because of the deficiencies in the fresh as amended statement of claim that must be corrected if the action is to proceed any further. On a preliminary basis and subject to giving the parties an opportunity to make submissions, my view is that neither party should be required to pay costs to the other party. If either party wishes to make costs submissions, that party shall deliver a costs outline and bill of costs within 10 days and the other party shall have 10 days to respond.
[27] Counsel for CAS may prepare and enter an order based on this endorsement without the necessity of obtaining approval as to form and content from the plaintiff.
Mr. Justice M. James
Released: February 1, 2016
CITATION: A.L. v. The Children’s Aid Society of Ottawa, 2016 ONSC 818
COURT FILE NO.: 14-62709
DATE: February 1, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
A.L.
Applicant
– and –
THE CHILDREN’S AID SOCIETY OF OTTAWA
Respondent
REASON FOR JUDGMENT
Mr. Justice M. James
Released: February 1, 2016