COURT FILE NO.: CV-17-002 DATE: April 5, 2017

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: KAREN BRALEY operating as BLACKBURN RESIDENTIAL SERVICES Plaintiff – and – CHRISTINE HARRIET JOHNSTON Defendant

Counsel: Jonathan Collings, for the Plaintiff No one appearing on behalf of the Defendant Nicola Edmundson, for Family and Children’s Services of Lanark, Leeds and Grenville

Heard: March 31, 2017, at Perth

RULING ON MOTION quigley J.

Background

[1] This is a motion by the plaintiff for production of third party documents pursuant to Rule 30.10(1) of Rules of Civil Procedure, which states as follows:

30.10(1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action; and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document. R.R.O. 1990, Reg. 194, r. 30.10(1).

[2] This motion is for partial disclosure of a file in the possession, control and power of Family and Children’s Services of Lanark, Leeds and Grenville (“the Society”) relating to a complaint allegedly made by the defendant to the Society. The complaint is the subject matter of a defamation action commenced by the plaintiff against the defendant.

[3] This motion is for:

(a) an Order requiring the Society to produce the entire file in its possession, including all correspondence, notes, records, reports, photos and videos, regarding the complaint allegedly made by the defendant about the plaintiff to the Society on June 21, 2016, and

(b) costs of this motion against the defendant only.

[4] The grounds for the motion are:

(a) The Society file is vitally important and central to the action, as the complaint and the Society’s subsequent investigation are crucial parts of the defamation claim;

(b) Immediate production of the Society’s file is necessary in order to provide further particularity in the pleadings and the discovery process regarding the exact words used in the complaint, as well as subsequent communications between the defendant and the Society;

(c) The plaintiff sought the defendant’s consent for production of the Society’s file, but the defendant did not respond;

(d) The Society’s file is not accessible to the plaintiff from any other source;

(e) There is no prejudice to the Society or the defendant arising from production of the Society’s file; and

(f) Such further and other grounds as the lawyers may advise.

[5] The defendant, Christine Johnson, has not appeared on this motion.

[6] The Society, from whom the disclosure is being sought is opposing the motion essentially because disclosure by the Society would contravene the spirit of Section 72(1) of the Child and Family Services Act. Section 72(1) provides for a duty of persons to report a child in need of protection, as follows:

72.(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 neglect in 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 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.

Background

[7] The plaintiff operates a business which provides homecare services to special needs children in Lanark County.

[8] The defendant worked briefly as an employee of the plaintiff for a period of 19 days in 2015. The plaintiff alleges that during the defendant’s time of employment she obtained and retained numerous proprietary documents which were the property of the plaintiff and were vital to the operation of her business.

[9] The plaintiff further alleges that upon the termination of her employment, the defendant refused to return the documents.

[10] The plaintiff further alleges that on February 6, 2016, the defendant attempted to run the plaintiff off the road while they were driving in separate vehicles. The plaintiff filed a police report involving this incident.

[11] In an affidavit dated March 2, 2017, the plaintiff, deposed that on June 21, 2016, a complaint was made by telephone to the Society after which Society worker, Christine Kealy, visited the plaintiff’s facilities and met with her several times.

[12] On July 6, 2016, Ms. Kealy emailed the plaintiff to advise her that she would be contacting the referral source of the complaint to inform them that “there are absolutely no grounds to support the allegations”, and that Kealy would be cautioning the person against continuing to make such claims. In effect, Kealy found there were no reasonable grounds for the complaint and confirmed this fact to the plaintiff in writing.

[13] In her March 2, 2017 affidavit, the plaintiff stated that she requested through counsel a copy of the entire file related to the complaint and received only a redacted file on February 21, 2017.

[14] The plaintiff alleges that the redacted file received by her was replete with unsubstantiated hearsay, as well as defamatory allegations that form the core of this action. The plaintiff further deposes that she believes the source of the complaint is the defendant due to the note on page 102 which indicates that the referral source “will email the letter she wrote outlining her concerns while she was working for [me]”.

[15] The plaintiff says that the defendant worked as an administrative assistant to her from July 9, 2015 to July 27, 2015.

[16] The plaintiff alleges that the complaint made by the defendant was made maliciously and without reasonable grounds and is the underlying basis for this defamation action.

[17] The plaintiff further deposes that the defendant sent her a text message on June 14, 2016, seven days before the complaint was made to the Society, referring to the plaintiff as “pathetic”.

Position of the Plaintiff

[18] Counsel for the plaintiff acknowledges the need for and the policy reasons behind the duty to report under the aforementioned Section 72 of the Act. However, the plaintiff alleges that the duty to report has to be reasonable and in this case it was found not to be so by the Society. Further, the plaintiff states that the duty to report cannot be made out of extrinsic or intrinsic malice which the plaintiff alleges is present in this complaint.

[19] The plaintiff acknowledges that a disclosure under Rule 30.10 of the Rules of Civil Procedure requires the document to be relevant and necessary for the plaintiff to proceed with the action.

[20] In discussing relevance and probative value, the plaintiff refers the court to the case of Finlayson v. Mercanti [2008] O.J. No. 2295, wherein Cavarzan J states at paragraph 18:

The Supreme Court of Canada adopted the following meaning of the applicable “likely relevance” standard at paragraph 22 of the reasons in the O’Connor case:

In the disclosure context, the meaning of “relevance” is expressed in terms of whether the information may be useful to the defence … In the context of production, the test of relevance should be higher: the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative of an issue at trial …

At paragraph 24, it is stated that “we wish to emphasize that, while this is a significant burden, it should not be interpreted as an onerous burden …”. Something more is required, in my view, to meet the relevancy threshold than to point to expressions of concern that certain conduct may possibly have a severe effect on children.

[21] The factors that the court must consider in ordering such disclosure were discussed in the case of Ontario (Attorney General) v. Stavro, [1995] O.J. No. 3136. In that case at page 10, the court said as follows:

. . . .In deciding whether to order production in the circumstances of this case, the factors to be considered by the motion judge should include:

--the importance of the documents in the litigation;

--whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness to the appellant;

--whether the discovery of the defendants with respect to the issues to which the documents are relevant is adequate and if not, whether responsibility for that inadequacy rests with the defendants;

--the position of the non-parties with respect to production;

--the availability of the documents or their informational equivalent from some other source which is accessible to the moving parties;

--the relationship of the non-parties from whom production is sought, to the litigation and the parties to the litigation. Non-parties who have an interest in the subject-matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true “stranger” to the litigation.

Position of Family and Children’s Services of Lanark, Leeds and Grenville

[22] Counsel for the Society submits that a qualified privilege arises for persons obligated to report under Section 72 of the Act where a reasonable person would have considered it a duty to communicate information to those persons to whom the information was communicated.

[23] Consideration of whether a statement is untrue is irrelevant to the issue of whether the occasion was privileged, as long as the statements are honestly made. In support of this proposition, counsel for the Society referred the court to the case of Ryabikhina et al v. St. Michael’s Hospital et al, 2011 ONSC 1884.

[24] Counsel for the Society further states that it is important that people who provide information to the Society are protected. Counsel submits that people who have knowledge of concerning issues that they report to the Society are, by definition, people who are close to the caregivers for children; often family and close friends.

[25] The Society referred the court to the case of Huizinga v. Kawartha Haliburton Children’s Aid Society, 2015 ONSC 3477. In rendering the court’s decision, McDougall J stated at paragraph 8:

8. Section 72(7) of the CFSA provides:

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 section unless a person ask maliciously or without reasonable grounds for suspicion.

[26] The court further went on to say in that decision at paragraphs 9 and 10:

9. I am satisfied, on the material before me, based on the results of the CAS caseworker’s investigations and the affidavit of the Applicant, that the Applicant has demonstrated an arguable case that the informant(s) may have acted maliciously and were without reasonable grounds for suspicion in making their reports that the Applicant’s children may be in need of protection as defined in the CFSA.

10. With respect to whether the Applicant should be entitled to an order for disclosure of the redacted information being sought under a Norwich Application, I find that although this equitable remedy is generally of limited application (See: GEA Group AG v. Ventra Group Co, 2009 ONCA 619), I am satisfied that the Applicant has demonstrated that the disclosure order is the only practicable source of information necessary for the applicant to continue with the civil lawsuit against the informant(s) and that the interests of justice favours granting the relief sought.

Analysis and Decision

[27] I note that the plaintiff is only seeking an order for an unredacted version of the report to the Society with respect to statements made by the defendant. Counsel for the plaintiff is not seeking the names or any identification of persons other than the defendant.

[28] The redacted disclosure already made by the Society primarily is contained in pages 100 to 108, inclusive, in the supplemental motion record of the plaintiff dated March 3, 2017.

[29] It appears to the court that the defendant was the likely purveyor of these unsubstantiated allegations and that on the face of them, they not only appear to be unreasonable but also malicious. If they are either unreasonable or malicious, the defendant is unable to rely on the privilege accorded to ordinary reasonable people under the provisions of Section 72 of the Act.

[30] Therefore, I find that the plaintiff has satisfied the conditions as outlined by the court in the Ontario (Attorney General) v. Stavro, supra.

[31] I find further that the Society worker, Ms. Kealy, is to be commended for the professional and expeditious manner in which she carried out that investigation.

[32] I find that there are no other sources from which the plaintiff may obtain the information required to continue this defamation action.

[33] Therefore, an order shall go requiring the Society to produce the entire file in its possession, including all correspondence, notes, records, reports, photos and videos, regarding the complaint made by the defendant about the plaintiff to the Society on June 21, 2016.

[34] With respect to the issue of costs, no claim was made by the plaintiff against the Society and even if a claim for costs had been advanced against the Society, the commendable and professional approach taken by the Society worker, Christine Kealy, and the obligation of the Society to protect its sources pursuant to Section 72 of the Act would prevent any claim.

[35] However, the court is prepared to receive cost submissions from either the plaintiff or defendant of no longer than two typewritten pages on or before May 1st to my Brockville chambers.

The Honourable Mr. Justice M. J. Quigley

Released: April 5, 2017