WARNING
This case is subject to subsections 87(8) and 87(9) of the Child, Youth and Family Services Act, 2017. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court File and Parties
COURT FILE NO.: CV-15-109
DATE: 20170605
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AA Plaintiff Self-represented
– and –
BB and CC Defendants Not appearing Self-represented
HEARD: November 28, 29, 30, December 1 and 2, 2016
Amended ENDORSEMENT
Amended decision: The text of the original judgment was amended on July 22, 2020 and a description of the amendment is appended.
J.C. Corkery J.
[1] The April 16, 2013 anonymous call about a man abusing children and a woman was not the first that the Kawartha Haliburton Children’s Aid Society (the “Society”) had received concerning AA. There had been at least five previous referrals concerning him. None of them verified.
[2] On April 30, 2013, when the Society wrote to AA to inform him that the April 16, 2013 allegations against him were not verified and that his file was closed, the investigator also stated in the letter that there was “some concern that the allegations reported to the Society were malicious in nature…”. AA had more than “some concern”, he was convinced that the allegations were malicious. He commenced this action as a result of those allegations. This is the judgment in the trial of that action.
[3] In his Statement of Claim, AA alleges that the defendants, CC and BB, conspired together to make a fabricated complaint to the Society. CC and AA have two children together. BB and CC know each other. AA alleges that BB made the malicious call to the Society using information she received from CC.
[4] AA further alleges that CC is liable for statements she made to the Society in the course of its investigation.
[5] AA claims damages in the amount of $70,000 for the loss of his career, his income and pension, aggravated and punitive damages, and costs. He asserts three causes of action:
a. intentional infliction of emotional distress;
b. conspiracy; and
c. slander and libel.
A. Background
[6] AA and CC share custody of their two young children, born in 2008 and 2009. They separated in January, 2011, ending a four-year relationship. On April 21, 2011, AA filed an application seeking custody of his children. CC sought custody, support and a restraining order. After a thirteen-day trial, Gunsolus J. ordered that the parties would have shared custody with the children residing with both parents on a week-about schedule. The order is extensive and includes detailed provisions addressing emergency medical care for the children.
[7] During the course of the litigation, commencing in 2011, there were five referrals to the Society about AA made by someone associated with his children’s mother (see AA v. Kawartha-Haliburton Children’s Aid Society, 2014 CFSRB 63 at paragraph 9). None of the previous referrals were verified.
[8] The defendants, BB and CC, were co-workers who provided support to each other as single parents. They helped each other by caring for each other’s children.
[9] BB did not attend the trial. No lawyer or agent appeared on her behalf and no communication was received by the court as to why she did not attend. The trial proceeded in her absence and AA was allowed the opportunity to prove his claim against her, pursuant to Rule 52.01(2) of the Rules of Civil Procedure.
B. The Facts
1. Sunday, April 14, 2013
[10] AA’s present partner is K.G. They were in a relationship in 2013, when K.G. travelled from Oshawa to Peterborough on Friday, April 12, 2013 with her two older children to spend the weekend with AA and his two children. On the Sunday evening, April 14, 2013, they enjoyed a barbeque with another friend, N.H., and her two children. At the time, AA’s and CC’s two daughters were 5 and 3 years old. K.G.’s son was 9, one daughter was 6 and her youngest daughter (who was not with her that weekend) was 3 months. N.H.’s daughter was 13, her son was 10.
[11] Just after 7:00 p.m., the three adults were inside AA’s house and the six children were outside playing on a trampoline, when K.G.’s son came to the back door to say that AA’s daughter, KA.H., was hurt. AA went out to the trampoline and carried KA.H. into the house to a couch. She was crying and saying her leg hurt. No bruising or swelling was apparent on her leg. AA and K.G. made her comfortable and put an ice pack on her leg. KA.H. fell asleep on the couch around 7:30 and AA carried her to bed. N.H. and her children left for home around 8:00 p.m. AA did not contact CC that evening.
[12] On Monday morning KA.H. told her father her leg still hurt and she was unable to put weight on it. AA decided to take her to the hospital to have it looked at. After dropping his other daughter off at the daycare, AA arrived at the hospital at 8:30 a.m. He did not contact CC as he knew that she had would have just arrived home from working a night shift. KA.H. was content and AA thought she may have a sprain. Also, either before arriving at the hospital or shortly after arriving, the battery of his cell phone died. Apparently, AA was able to charge it at the hospital.
[13] Around 11:00 a.m. KA.H.’s leg was x-rayed. Initially, AA was told by the x-ray technician that there was no break. AA texted CC that he had taken KA.H. to the hospital and she was fine. This was the first communication he had with CC about KA.H.’s injury. Shortly thereafter, AA was informed by the doctor that the x-ray revealed a fracture. AA immediately informed CC of this new information. CC responded by texting that AA had no authority to authorize medical treatment. AA told the doctor that KA.H.’s mother was on her way and that she would provide directions as to treatment. The doctor proceeded to put a splint on KA.H. When CC arrived at the hospital, she made the arrangements for KA.H. to get a cast the following day. They departed the hospital between 12:00 p.m. and 1:00 p.m. KA.H. remained with her father until the next morning.
[14] On Tuesday, April 16, 2013, AA took KA.H. to the cast clinic to meet her mother after he dropped his other daughter off at the daycare. AA provided mother with further information about how KA.H. injured her leg and then went to work.
[15] At 10:49 a.m., CC emailed AA seeking clarification regarding how KA.H. broke her leg. She wanted to know what time the trampoline incident occurred and the details of what occurred on the trampoline. CC also expressed her concern that she had not been informed of the injury until the next morning after x-rays had been taken, although she is the parent with primary responsibility for making medical decisions.
[16] At 4:18 p.m., AA responded to the e-mail, answering CC’s questions. As he had been at work, he did not see the e-mail until later in the day. He reported the facts as outlined herein and expressed his view that he had not made any medical decisions and had reported the injury to CC when appropriate.
2. Referral
[17] On Tuesday, April 16, 2013, at 1:51 p.m., the Society received a telephone call from an anonymous female. She informed Jennifer Hill, an intake worker at the Society, that she had observed incidents of a man abusing children and screaming at a woman. She reported seeing five or six children playing on a trampoline on the previous Saturday. A woman and a man were outside with the children. One of the children started yelling that her leg hurt and the man got mad and told her to shut up and keep playing. The caller reported that the man then started yelling at his partner: “You’re a cunt.” “You’re a bitch.” “You can’t even take care of the kids and that is all you are suppose [sic] to do.” She said he threw a chair and a shovel toward her. Then the little girl started yelling about her leg and dad again told her to shut up. He then lifted her up off the ground by her right arm and threw her up and across the trampoline. The caller was concerned for the little girl as there was no net on the trampoline. The little girl continued to cry and yell that her leg was hurting.
[18] The anonymous caller stated she observed the incident from the home of a neighbour she was visiting. On the day she was calling, she stated there were no children around. She assumed they were in school. The same day, before she called, she had heard the man yelling at the woman “Get it fucking cleaned up stupid”.
[19] The caller provided the address of the home she was observing. From its records, the Society determined the address provided was that of AA. The caller was adamant that her identity remained anonymous. She provided only a first name, Marie, and a telephone number where she could be contacted.
3. Investigation
[20] As a result of the call, the Society commenced a child protection investigation. Bobbi Cooper, a child welfare worker with the Society, conducted the investigation.
[21] On April 18, 2013, Ms. Cooper conducted a home visit at AA’s home. She interviewed AA and his two children and K.G. and her five-year-old daughter. Her interviews confirmed the facts of the trampoline incident as outlined above. They all denied that AA was angry or yelling.
[22] On April 19, 2013, Ms. Cooper spoke by telephone with K.G. K.G. expressed her concerns that the call appeared to be malicious.
[23] On April 22, 2013, Ms. Cooper contacted the anonymous caller, leaving a voice message on the number provided by the caller for “Mary”, not “Marie”, to call Ms. Cooper. Ms. Cooper wanted to clarify with the caller information she had provided in the original referral, such as the day of the week when the incident occurred and whether the power was out. The power had been off all weekend at AA’s home due to a local outage. Mary returned Ms. Cooper’s call. Mary did not want to identify the neighbor she was staying with, but stated that the house is on the street behind AA’s house and the back yard’s back onto one another. Mary could not recall the exact day of the incident, but believed it occurred on Sunday. She confirmed that she could hear the yelling from her friend’s house.
[24] On April 25, 2013, Ms. Cooper met with N.H. and her two children at the Society office. Her interviews with them also confirmed the facts of the trampoline incident as outlined above. N.H. and her two children stated that AA was not yelling, swearing or angry at anyone. N.H. stated that at no point in her friendship with AA has she heard AA yell or swear at his children or K.G. She would not lie for him or ask her children to cover for him.
[25] On April 25, 2013, Ms. Cooper spoke with CC by telephone. At 4:20 p.m. on April 25, Ms. Cooper had left two voice messages requesting that CC call her. One message was left on the number Ms. Cooper had on file for CC. The other message was left on the contact number provided by Mary and which Ms. Cooper had used to contact Mary on April 22, 2013. At 5:00 p.m., Ms. Cooper received a telephone call from Mary’s contact number, the caller said nothing and hung up. Two minutes later, Ms. Cooper received the call from CC, from a telephone number Ms. Cooper did not know.
[26] CC told Ms. Cooper she did not know what was going on. Ms. Cooper explained that the Society had received a referral concerning AA and that she was trying to determine if there was any link between the referral source and CC. CC denied any knowledge of a call being made to the Society regarding AA. Ms. Cooper asked CC how she knew to call her. CC explained that she had received a message from her co-worker, BB, to call Ms. Cooper.
[27] Ms. Cooper testified that CC discussed with Ms. Cooper the difficulties of her custody litigation with AA. It had cost her a lot of money and it was now difficult to co-parent with AA. She spoke about how AA was abusive and vindictive. CC said she had asked other people not to call the Society about AA as a judge had told her she would never see her children again if anybody from her camp contacted the CAS again. Ms. Cooper told CC she had no intention of telling AA or K.G. about their conversation. Ms. Cooper told CC that she believed that the referral was made maliciously. CC reacted by becoming upset and stating she had nothing to do with the referral to the CAS. CC told Ms. Cooper that at work she has talked about her frustration with AA and the court process and had sought advice from peers on how to manage the situation. She talked at work about the fact that KA.H. broke her leg. She has talked at work about how AA is a terrible parent and an abusive person and that AA will spin a conspiracy theory so she will never see her children again. In cross-examination, Ms. Cooper stated she could not recall if CC stated that she used AA’s name when she spoke of him at work.
[28] In her evidence, CC acknowledged that she did talk at work about KA.H. breaking her leg, she does seek advice from her co-workers but at no time has she used AA’s name. During their litigations, she said, many allegations were made from both sides. Referring to Ms. Cooper’s case note of the interview between CC and Ms. Cooper, CC stated that she believes that note speaks for itself.
[29] Ms. Cooper’s case note of her conversation with CC: notation “She stated that she has talked about how he is a terrible and abusive parent and that she feels he will spin a conspiracy theory and she will never see her children again.”
[30] On April 25, 2013, Ms. Cooper visited AA’s property without informing AA. She observed that there was no adjacent property that would permit the anonymous caller to see and hear the things she claimed to have seen and heard.
[31] On April 26, 2013, Ms. Cooper met with K.G. and her eight-year old son. He was clear that there were no issues on the day KA.H. was injured or at any time with AA.
[32] On April 29, 2013, Ms. Cooper determined that the allegations made in the referral were unverified.
[33] On April 30, 2013, Ms. Cooper wrote to AA to inform him that the allegations were determined to be unverified and that his file was now closed. She also communicated the Society’s remaining concern at the conclusion of the investigation that the allegations reported were malicious in nature.
4. Obtaining Disclosure
[34] AA was shocked when he received Ms. Cooper’s letter. Up to that point, Ms. Cooper had provided very little detail to him about the nature of the allegations he was facing. This initial disclosure caused him great stress.
[35] AA testified that he had thought that with the conclusion of his family litigation with CC, the unfounded referrals about him to the Society would end. He explained how those allegations had caused him a great deal of stress and he could not eat or sleep and his doctor telling him not to go to work. False allegations against him had already been the cause of one failed relationship and now he feared it would cause K.G. to leave him. He promised her and himself that he would get to the bottom of this to protect her, their children and himself from any more such allegations.
[36] He committed himself to finding the source of the April 18, 2013 referral and to holding that person accountable.
[37] AA tried to take a sabbatical from work without a doctor’s note. Ultimately, he lost his job. AA did not call his employer to provide evidence as to the precise reason he was dismissed.
[38] AA’s own investigation began with the Society which led to a process involving the Society’s Internal Complaints Review Panel. AA was not satisfied with that process and on November 21, 2013, filed an application with the Child and Family Services Review Board.
[39] In a lengthy decision dated October 30, 2014 (AA v. Kawartha-Haliburton Children’s Aid Society, 2014 CFSRB 63 at paragraph 139, paragraph 1 of the directions therein.), the Board ordered, together with other relief, that AA be given full access to his file redacted to exclude identifying information of third parties.
[40] The Board’s decision also included a “Confidentiality Order” that prohibited AA, the applicant, from using any of the information provided and used in the proceeding from being disclosed or relied upon in any other proceeding. Thus, AA was required to commence an application in this court for disclosure of the names of the person or persons who made the referral. That application was granted by MacDougall J. on May 29, 2015.
5. The Pleadings
[41] By Notice of Action dated April 16, 2015, and Statement of Claim dated July 2, 2015, AA commenced this action.
[42] In paragraph 11 of his Statement of Claim, AA alleges as follows:
- On or around April 16th 2013 [BB] called the Kawartha Haliburton Children’s Aid Society (KHCAS) and made allegations that I harmed my children as well as abused both physically and verbally my girlfriend Kelly Grant in front of my children, Kelly’s children, and another friend’s children. Among the statements made were the following: 1) That I had thrown my daughter [KA.H.], and had thrown a chair and shovel at my partner Kelly Grant; 2) Swore in front of the children saying “You’re a cunt”, “You’re a bitch”, “You can’t even take care of the kids and this is all you’re supposed to do”.
[43] In her defence, BB did not deny paragraph 11 of the Statement of Claim or did she state that she had no knowledge of it. Similarly, she did not deny or did she state that she had no knowledge of paragraphs 14, 15, 16, 18, 19 or 20 of the Statement of Claim. Under Rule 25.07(2) of the Rules of Civil Procedure, BB is deemed to have admitted these paragraphs. Her admission of paragraph 11 of the Statement of Claim is consistent with the pleading in her brief defence in paragraph 1:
The defendant is a Duty to Report Mandated Reporter under Ministry of Children Youth services legislation (CFSAS s 72(2) and (CFSA s. 72(3))).
[44] While all of the paragraphs not referred to above are deemed admissions under Rule 25.07(2) of the Rules of Civil Procedure, I note the following admissions:
[45] BB was the anonymous female caller person who called the Society on April 16, 2013 and made allegations about AA to Ms. Hill (Statement of Claim, paragraph 11);
[46] BB repeated those allegations on April 22 to Ms. Cooper and made additional allegations that AA had poisoned the neighbour’s dog and that most people in the neighbourhood think there is something wrong with AA (Statement of Claim, paragraph 15); and
[47] BB knew or ought to have known that making a false allegation to the Society about AA would be “hugely damaging” to him and understands the implications of making a referral to the Society (Statement of Claim, paragraphs 43 and 45).
C. The Law
1. Intentional infliction of emotional distress
[48] The Ontario Court of Appeal recently affirmed the elements necessary to prove the tort of intentional infliction of emotional distress:
[42] The tort of intentional infliction of mental suffering has three elements. The plaintiff must prove:
- The defendant’s conduct was flagrant and outrageous;
- The defendant’s conduct was calculated to harm the plaintiff;
- The defendant’s conduct caused the plaintiff to suffer a visible and provable illness.
See Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474 (C.A.).
2. Conspiracy
[49] In 1983, the Supreme Court of Canada recognized two categories of civil conspiracy: lawful means conspiracy (or simple motive conspiracy) and unlawful means conspiracy: Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452 at pp. 471-2.
[50] Essential, however, to any civil conspiracy is that two or more persons must act in combination by agreement or common design. As that essential element is lacking in this case, it is unnecessary to review the nuances of the developing law and the more recent decisions of the Supreme Court of Canada and our Court of Appeal with respecting the lawful and unlawful means categories.
3. Slander and libel
[51] To succeed in the tort of defamation the plaintiff must prove three things:
A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words are defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damages are presumed. The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability. (Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 at para. 28).
[52] Once the plaintiff proves the three essential elements on a balance of probabilities, the defendant can defend the claim by proving the defamatory words were true or that the words were part of a privileged communication absolute or qualified.
[53] Qualified privilege was explained by the Supreme Court of Canada in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, [1995] S.C.J.:
143 Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. As Lord Atkinson explained in Adam v. Ward, [1917] A.C. 309 (H.L.), at p. 334:
. . . a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.
[54] In Cusson v. Quan, 2007 ONCA 771, the Ontario Court of Appeal recognized some of the contexts in which a qualified privilege may arise.
[39] Employment references, business and credit reports, and complaints to police, regulatory bodies or public authorities are classic examples of occasions of qualified privilege. The rationale for qualified privilege is that on such occasions, "no matter how harsh, hasty, untrue, or libelous the publication . . . the amount of public inconvenience from the restriction of freedom of speech or writing would far outbalance that arising from the infliction of private injury" (Huntley v. Ward (1859), 6 C.B. (N.S.) 514, at p. 517).
[40] The privilege is said to be qualified as it can be defeated upon proof of malice, that is spite or ill-will, ulterior purpose, or, more commonly, proof that the defendant either knew the statement was false or was reckless as to its falsity: see Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, at para. 145 ("Hill v. Scientology"). The privilege can also be lost where the limits of the duty or interest are exceeded by the use of words not reasonably appropriate to the occasion.
D. Analysis
1. BB
a) intentional infliction of emotional distress
[55] In this case, I am satisfied on a balance of probabilities that first, two of the three elements of the tort of intentional infliction of emotional distress have been proved by the plaintiff. In making a false referral to the Society, BB engaged in conduct that was flagrant and outrageous and that was calculated to harm the plaintiff. However, I cannot be satisfied that BB caused AA to suffer a visible and provable illness.
[56] I have no doubt that AA suffered tremendous stress as a result of BB’s false allegations. However, AA called no expert medical evidence to establish that he suffered from any illness. While it may not always be necessary to call expert evidence to establish a “visible and provable illness”, in this case it is impossible for me to know what, if any, illness AA suffered from or whether it was caused by the false report of BB.
[57] This claim against BB is dismissed.
b) Conspiracy
[58] Although there is circumstantial evidence which strongly suggests that BB relied upon information she learned from CC, there is insufficient evidence to satisfy me on a balance of probabilities that making the referral, BB and CC acted in combination by agreement or common design which is necessary to prove the civil tort of conspiracy. It is equally consistent with the evidence that BB acted independently.
[59] This claim is dismissed against BB.
c) slander and libel
[60] The communication that BB had with the Society referred to AA using words that unquestionably would tend to lower the plaintiff's reputation in the eyes of a reasonable person.
[61] AA has proved on a balance of probabilities his claim of slander against BB.
[62] AA is entitled to general damages in the amount of $5,000.00.
[63] I was provided with no authorities dealing with the quantum of damages in these circumstances. In determining the appropriate amount, I have considered the how long it took the Society to complete its investigation, the nature of the allegation, the number of people and who heard the false allegation and the fact that the Society records show it as an unverified referral noting a concern that it may have been malicious. It impossible if this lowers or improves AA’s reputation in the eyes of the Society.
[64] Given what I find to be the malicious nature of the false referral, AA is entitled to punitive damages in the amount of $5,000.00.
2. CC
a) intentional infliction of emotional distress
[65] AA has proved none of the essential elements of the tort of intentional infliction of emotional distress against CC. There was no evidence that she engaged in conduct that was flagrant and outrageous. There was no evidence that she did anything calculated to harm the plaintiff or that CC’s conduct caused AA to suffer a visible and provable illness.
[66] This claim is dismissed against CC.
b) Conspiracy
[67] For the reasons provided above this claim is dismissed against CC.
c) slander and libel
[68] Communication with child welfare agencies responsible for protecting children in the course of their investigations is, in my view, but another “classic example” of an occasion of qualified privilege as referred to by the Court of Appeal in Cusson v. Quan. To find otherwise, would make it impossible for such public agencies to carry out their difficult but very necessary responsibility of protecting vulnerable children. I have no doubt that most interviews conducted in the course of such investigations will include statements that tend to lower another’s reputation in the eyes of a reasonable person. CC spoke to Ms. Cooper about AA on the promise from Ms. Cooper that she would not disclose what CC told her. This expectation was reasonable. Her discussion with Ms. Cooper was protected by qualified privilege, even if it included CC making admissions about what she said to others at work.
[69] This claim is dismissed against CC.
E. Conclusion
[70] The action against CC is dismissed. Judgment against BB is granted in the amount of $10,000.00.
[71] I will receive brief submissions from all parties, being no more than four pages, to be served and filed on or before June 26, 2017. I will also receive any reply from any party of no more than two pages to be served and filed on or before July 4, 2017.
J.C. Corkery J.
Released: June 5, 2017
Appendix
Amendments made July 22, 2020:
In accordance with the order made June 1, 2020 (AA v. BB and CC, 2019 ONSC 3423):
- the endorsement was amended to use the letters AA, BB and CC in place of the names or initials of parties, and
- the warning was added.