Court File and Parties

COURT FILE NO.: 2846/14 DATE: 2017/06/02 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Tamara Aspden, Brad Aspden, Jacob Aspden by his Litigation Guardian Tamara Aspden and Ethan Aspden by his Litigation Guardian Tamara Aspden, Plaintiffs (Respondents)

AND:

Family and Children’s Services Niagara, Heidi Payne, Defendants (Appellants)

And: the Regional Municipality of Niagara Police Services Board, and Phil Gavin (not party to the leave motion)

BEFORE: Morissette J.

COUNSEL: O. Sabo, counsel, for the plaintiffs (respondents) Carole G. Jenkins, counsel, for the defendants (appellants), Family and Children’s Services Niagara and Heidi Payne

HEARD: In writing

Endorsement

Introduction

[1] The Family and Children’s Services Niagara (FACS), and Heidi Payne seek leave to appeal from the order of Madam Justice Leitch dated June 30, 2015. The motion judge dismissed the appellants’ motion to strike the respondents’ (plaintiffs) claims on the basis that she could not, at this stage, conclude that there is no chance that the plaintiffs might succeed.

[2] The appellants had brought a motion seeking to strike the claims of the plaintiffs on the basis that the claim disclosed no reasonable cause of action and no duty of care was owed by FACS to the parents.

Test for Leave to Appeal

[3] The test for granting leave to appeal under r. 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two alternate bases upon which leave may be granted. Both branches involve a two-part test and, in each case, both requirements of the two-part test must be met before leave may be granted.

[4] Under r. 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle and not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).

[5] Under r. 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that part of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

Position of the parties:

[6] The appellants submit that the motion judge erred in dismissing the motion; that leave ought to be granted because there are conflicting decisions and it is desirable that leave to appeal be granted. The appellants further submit that there is good reason to doubt the correctness of the motion judge’s decision and the proposed appeal involves matters of importance beyond the interests of the parties.

[7] The respondents submit that this is a unique case and there are no conflicting decisions. They further submit that there is no reason to doubt the correctness of her decision and this appeal does not involve matters of importance but rather is specific to the unique facts of this action and these litigants.

Analysis

[8] In assessing whether or not there are conflicting decisions, the nature of the plaintiffs’ action is important. The plaintiffs allege that, while FACS was investigating the alleged abuse of one of their children by a third party child, the FACS worker’s notes named the abuser child as the brother of the victim, rather than the third party. They allege that FACS and its employee were negligent.

[9] In this case, the parents were never under investigation. The appellants at no time apprehended either of the children nor were they ever in the care of the appellants. In other words, the children were never “in the care of” a Children’s Aid Society.

[10] The appellants submit that the Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 decision stands for the proposition that a Children’s Aid Society owes no duty of care to parents and only owes a duty of care to children who come to its attention or are in its care.

[11] In the authorities cited by the appellants, the parents were under investigation; and/or the children were removed from the home and put in the care of the Children’s Aid Society due to alleged or suspected misconduct. In those cases, there is real or potential conflict between the Society’s mandate to put the children first, and the parents.

[12] The motion judge found that neither factor exists in this case. The allegations in this pleading are not in the context of an inter-family abuse case which might put the parents and FACS in conflict, as the authorities referred to by the appellants suggest. Rather, the motion judge concluded that the allegations are that FACS acted outside of its child protection mandate.

[13] There is no conflicting decision where the court applies established legal principles appropriate to the facts but exercises its discretion differently or distinguishes the facts appropriately.

[14] In my view, it was open for the motion judge to distinguish this case from the authorities cited. She applied the correct legal principles in a thoroughly reasoned decision.

[15] There is no reason to doubt the correctness of the motion judge’s application of the legal analysis in Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 and the Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.)/Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537 analysis to these facts. She could not, at this stage, conclude that on these facts, there is no chance that the plaintiff’s might succeed.

[16] It is helpful to remember what McLaughlin C.J. said in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42: “the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed… The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.”

[17] The motion is dismissed. The appellants have not satisfied either r. 62.02(4)(a) or (b).

“Justice J. N. Morissette” Justice J.N. Morissette Date: June 2, 2017