Court File and Parties

Court File No.: CV-16-557244CP Date: 2018/08/23 Ontario Superior Court of Justice

Between:

M.M., Plaintiff

– and –

Family and Children’s Services of Lanark, Leeds and Grenville, also known as the Children’s Aid Society of Lanark, Leeds and Grenville, Raymond LeMay, Executive Director for Family and Children’s Services of Lanark, Leeds and Grenville, The Honourable Tracy MacCharles in her Capacity as Minister of Children and Youth Services, Her Majesty the Queen in Right of the Province of Ontario, Her Majesty the Queen in Right of the Province of Ontario, Kelley Denham and Jane Doe, Defendants

Counsel: Candace Mak, for the Plaintiff Sarah J. Armstrong and Zohar R. Levy, for the Defendant Family and Children's Services of Lanark, Leeds and Grenville, also known as the Children's Aid Society of Lanark, Leeds and Grenville Kelley Denham, self-represented

Heard: July 13, 2018

Before: Perell, J.

Reasons for Decision

[1] In 2016, pursuant to the Class Proceedings Act, 1992 [1], M.M., who had been subject to a child protection inquiry, brought a proposed class action against: (a) Family and Children’s Services of Lanark, Leeds and Grenville (“the Society”), a children’s aid society, then regulated by the Ministry of Children and Youth Services of the Ontario government; (b) Raymond Lemay, the Executive Director of the Society, (b) Tracy MacCharles in her capacity as the Minister of Children and Youth Services, (d) Her Majesty the Queen in Right of Ontario (“Ontario”), and (e) Jane Doe, who was later identified in an Amended Statement of Claim to be (f) Kelley Denham.

[2] On December 21, 2017, M.M. moved for certification of her action as a class action. The Defendants consented or did not oppose certification, and the action was certified as a class proceeding against the Society to advance three causes of action; namely: negligence, intrusion upon seclusion and breach of section 7 of the Canadian Charter of Rights and Freedoms; and against Ms. Denham to advance an intrusion upon seclusion claim. M.M. v. Lanark, Leeds and Grenville Children’s Aid Society, 2017 ONSC 7665 [2].

[3] In the class action, the Class Members claim $75 million in general, special, and punitive damages from the Society and $1 in damages from Ms. Denham.

[4] After the certification of the action, the pleadings were completed. The Society delivered a Statement of Defence and included a Crossclaim for contribution and indemnity from Ms. Denham, whom it blamed for the disclosure of the Class Member’s private and confidential information.

[5] Ms. Denham delivered a Statement of Defence and included a $15 million Crossclaim against the Society Defendants for negligence, intrusion upon seclusion, breach of section 7 of the Canadian Charter of Rights and Freedoms, defamation, abuse of process, and intentional infliction of emotional distress.

[6] Now before the court are several motions for a diverse mix of procedural and evidentiary orders.

a. M.M. seeks to discontinue her action against Ms. Denham. b. The Society, which, as noted above, had crossclaimed against Ms. Denham, seeks an Order converting its Crossclaim into a Third Party Claim and converting Ms Denham’s Crossclaim into a Counterclaim in the Third Party Action. c. The Society seeks an Order that the Third Party Action including its Counterclaim be case managed in Toronto as a part of the class action and be tried together with or immediately following the class action. d. The Society seeks a sealing order. The sealing Order is said to be required to address confidentiality concerns arising because of s. 87 (8) of the Child Youth and Family Services Act, 2017 [3] and s.70(1) of the Children's Law Reform Act [4]. e. Ms. Denham does not oppose the continuation of the crossclaims within a Third Party Action, but she opposes the request for case management in Toronto and asks the court to transfer the Third Party Action to Perth, where she lives and where apparently she will have a lawyer prepared to act for her in defending the Third Party Action and in prosecuting her Counterclaim.

[7] The request for a sealing order, which was not opposed, should be granted.

[8] Section 87 of the Child Youth and Family Services Act, 2017 prohibits the publication of information that has the effect of identifying a child who is the subject of a child protection proceeding.

[9] In order to defend itself to Ms. Denham’s Crossclaim or Counterclaim, the Society may need to identify a child who is the subject of a child protection proceeding, and the Society is rightly concerned that there be no breach of s.87 of Child Youth and Family Services Act, 2017 or of s.70 (1) of the Children's Law Reform Act.

[10] The Society’s request for a sealing order will permit it to defend itself to Ms. Denham’s Crossclaim or Counterclaim without breaching these statutes.

[11] Moreover, a sealing order would be appropriate in accordance with the common law test for sealing a court file or otherwise limiting the open court principle. Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 at paras. 40-48 [5].

[12] Turning to the other requests for relief, the only area of contention is whether the class action and the third party proceeding should be case managed in Toronto or whether these actions should be transferred and case managed by a judge of the East Region of this court.

[13] M.M., who is represented by Flaherty, McCarthy LLP, a downtown Toronto law firm, and the Society Defendants, who are represented by Fasken Martineau DuMoulin LLP, a downtown Toronto law firm oppose the transfer of the action to the East Region.

[14] Apart from the location of M.M.’s and the Society Defendants’ lawyers, there is nothing to connect the proposed class action to Toronto. All the events in the class action, all the events in the third party proceedings, and all the events in the counterclaim in the third party proceeding occurred in the East Region.

[15] The class action and the third party proceeding are inextricably interwoven, with multiple overlapping issues of fact and law to be determined. There is a substantial overlap between the events of the class action and of the third party proceeding, which should not be separated, and where there is no overlap, the events have no connection to Toronto.

[16] Although the current litigation plan does not envision any individual proceedings, if the Class Members were to advance individual claims for idiosyncratic special or general damages caused by the release of the private and confidential information, the venue of those individual proceedings would have no connection to Toronto unless the Class Member happened to have moved.

[17] Apart from the convenience to counsel, there are no advantages to having the class action managed in Toronto and there is no advantage to having the various actions determined by trial or by summary judgment motion in Toronto.

[18] Ms. Denham’s, M.M.’s and the representative of the Society’s examinations for discovery will or should occur in the East Region where the parties reside.

[19] The events of the various actions, which attracted the attention of the media in Perth, Ontario, are of interest to the citizens of the East Region, who have an interest in the operation of their local children’s aid societies, but the events are of little more than of prurient interest to the citizens of Toronto.

[20] Ms. Denham, who is the central actor either as a commendable whistleblower or as a deplorable newsmonger and hacker and leaker of confidential information is seriously inconvenienced and possibly prejudiced by having to defend or prosecute the various proceedings in Toronto, where she has been unable to obtain a lawyer to represent her.

[21] Pursuant to s. 12 of the Class Proceedings Act, 1992, I have the jurisdiction to make orders regarding the conduct of class proceedings. Section 12 states:

12. The court, on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and for the purpose may impose such terms on the parties as it considers appropriate.

[22] The court has a wide and generous jurisdiction to make order respecting the conduct and carriage of a class proceeding. Endean v. British Columbia, 2016 SCC 42 [6].

[23] In my opinion, it would ensure the fair and just determination of the action and the third party proceeding to transfer the action to the East Region, and I so order.

[24] I shall take on the responsibility of determining whether the Regional Senior Judge of the East Region will accept the transfer of the class action and assign the case to one of several very capable class action judge colleagues who sit in the East Region.

[25] If those judges and court facilities are not available in the East Region, then I shall rescind this order and continue to case manage the class action and the third party proceeding in Toronto.

[26] I, therefore, grant the sealing order. I grant M.M. leave to discontinue her action against Ms. Denham. I convert the Society’s Crossclaim against Ms. Denham into a Third Party Claim and I convert Ms. Denham’s Crossclaim into a Counterclaim in the Third Party Action. I order that the class action and the third party claim be case managed together. I order that the Third Party Claim and Counterclaim be tried together with or immediately following the class action. I conditionally transfer the class action and the third party proceedings to the East Region subject to the acceptance and direction of the East Region Senior Judge.

[27] I make no order as to costs.

Perell, J. Released: August 23, 2018

Footnotes

[1] S.O. 1992, c. 6. [2] M.M. v. Lanark, Leeds and Grenville Children’s Aid Society, 2017 ONSC 7665. [3] S.O. 2017, C. 14, Sched. 1. Section 78 (8) states: “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.” [4] R.S.O. 1990, c C,12. Section 70 (1) states:

70 (1) Where a proceeding includes an application under this Part, the court shall consider whether it is appropriate to order, (a) that access to all or part of the court file be limited to, (i) the court and authorized court employees, (ii) the parties and their counsel, (iii) counsel, if any, representing the child who is the subject of the application, and (iv) any other person that the court may specify; or (b) that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file. [5] Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 at paras. 40-48. [6] Endean v. British Columbia, 2016 SCC 42.