Superior Court of Justice - Ontario

COURT FILE NO.: C-1253-16 DATE: 2018-10-05

RE: Cathy Spicer, Plaintiff AND: Reinhold Dresler, Pioneer Youth Services and N.L. c/o Pioneer Youth Services, Defendants

BEFORE: The Honourable Mr. Justice R. J. Nightingale

COUNSEL: Bruce Kelly, Counsel, for the Plaintiff Lauren N. Bloom, Counsel, for the Defendants

HEARD: September 26, 2018

ENDORSEMENT

[1] The defendants Reinhold Dresler and Pioneer Youth Services bring this motion pursuant to Rule 21.01(1) (b) to strike the statement of claim as against them because it fails to disclose a reasonable cause of action.

[2] The plaintiff’s statement of claim alleges that she was employed by the defendant Pioneer Youth Services which was owned by the defendant Dresler. Both defendants operate as a licensed service provider for children with special needs and disabilities in a group home in Waterloo in which the minor N.L. resides.

[3] The plaintiff alleges that on May 1, 2015 while in the course of her employment with the moving defendants she was assaulted by N.L. sustaining injuries and damages.

[4] She alleges that the moving defendants are responsible for her damages sustained as a result of that assault by N.L. because of their negligence, breach of contract, breach of fiduciary duty and breach of the Occupiers Liability Act. She alleges nine particulars of the breaches of their obligations.

[5] The action against the minor N.L. was discontinued on January 29, 2018.

Position of the Parties

[6] The defendants’ position is that they owe no duty of care to the plaintiff as a matter of law as their paramount duty was owed to the child for his protection pursuant to the former Child and Family Services Act. They also allege they cannot be held responsible for the plaintiff’s damages under either the Occupational Health and Safety Act or Occupiers Liability Act.

[7] The plaintiff’s position is that the defendants owed the plaintiff a duty of care essentially to provide a safe workplace and appropriate assistance to her during her employment while she performed her services for the children. That duty was breached causing her damages and which duty was not superseded or abrogated by any duty of care owed by the defendants to the child N.L. or other minors in their care. Accordingly, her pleadings should not be struck under Rule 21.

Rule 21

[8] Rule 21.01(1) (b) provides that a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action. No evidence is admissible on such a motion.

[9] The Supreme Court of Canada in Hunt v. Carey Canada 1990 90 (SCC), [1990] 2 S.C.R. 959 and the Ontario Court of Appeal in Conway v. Law Society of Upper Canada 2016 ONCA 72, [2016] O.J. No. 451 confirmed the following test to be applied on such a motion to strike the pleadings:

a) it must be plain and obvious that the claim discloses no reasonable cause of action;

b) the material facts pleaded are to be taken as proven or capable of proof unless they are patently incapable of proof;

c) neither the complexity of the issues, the novelty of the cause of action, nor the potential of a strong defence is to prevent a party from proceeding with its case; and

d) a pleading should be read generously so as not to unfairly deprive a party of the benefit of the pleading.

[10] Unless it is fully settled that there is no cause of action, the claims should be permitted to proceed to trial. An action should be allowed to proceed to ensure that the common law and the law of torts, in particular, continues to evolve. If the area of law is unsettled, the Court should not dispose of the matter on a motion to strike. Toronto Dominion Bank v. Deloitte Haskins & Sells (1991) 1991 7366 (ON SC), 5 O.R. (3d) 417; Transamerica Life Canada Inc. v. ING Canada Inc., (2003) 9923(Ont. C. of A.); Mark v. Durham Children’s Aid Society, 2018 ONSC NO. 5468.

Analysis

[11] The defendants submit based on the authority of Syl Apps Secure Treatment Centre v. B.D., [2007] 3 S.C.R. that their only duty of care was to the child or children in their care by statute. Accordingly, they could not have and do not owe a duty of care to the plaintiff as its employee in the course of her employment while she cared for the child.

[12] It is not disputed that the defendant Pioneer was a licensed service provider for the Ministry of Community and Social Services Ontario under the former Child and Family Services Act, RSO 1990, c C.11 at the time of the incident. That statute requires Pioneer to act in the best interests of the child and Section 1 states that the paramount purpose of the Act is to promote the best interests, protection and well-being of children.

[13] The Court in Syl Apps and subsequent decisions including that of Pereira (Litigation Guardian of) v. Ontario 2015 ONSC confirm that such agencies owe their duty to the children first and foremost and owe no duty of care to the children’s parents.

[14] All of the decisions are clear that the Court should not impose any duty of care by the service providers towards the family of a child in their care as doing so would create a potential conflict with their ability to effectively discharge their statutory duties to promote the best interests, protection and well-being of the children.

[15] None of those cases dealt with the fact situation here where the issue is whether the defendant employer service provider owed a duty of care to its employee who actually provided the care for the minor in their facility.

[16] There was no duty at common law owed by a child protection service provider towards the parent of a child. It is only because of its statutory duty that the service provider must promote the best interests, protection and well-being of the children in its care. The courts have concluded based on the applicable legislation that there was no statutory duty owed by such service providers to the family of the children in their care. They also held that it was not appropriate to impose such a duty of care on the service provider towards the family because of the potential for a serious and significant conflict with its duty to the child.

[17] However, at common law the duty of an employer has long been to take reasonable care for the safety of its workers either as an implied term of the employment contract or as a matter of tort. Barracle and Wood, Employment Law in Canada, 4th ed., para. 9.3.

[18] Accordingly, in this case, the defendant service providers as employers owe a duty of care to its employees including the plaintiff to provide a safe workplace while the plaintiff carries out her duties to protect the children in the defendants’ care.

[19] In my view, that duty could arise in a number of different ways. Some examples may include its duty to provide the assistance of another employee or perhaps protective equipment if the child is significantly physically aggressive posing a risk of harm to himself and/or to the supervising employee. Another may be to advise the employee of any issues that she should be aware of to ensure the protection of the child and herself while the child is in her care. Another could be to advise and warn the employee if the child has a major health problem or a serious infectious disease which posed a danger to himself and others including the employee because of its potential transmission to others.

[20] Another duty owed to the employee could include warning the employee of potentially dangerous conditions on its premises and removing it, for example icy sidewalks, which could pose a danger to not just to the minor but also to the employee while accompanying him outside.

[21] In these situations, where the employee is the one providing her services for the protection of the minor while in her care during her employment with and at the direction of the service provider, it is difficult to conceive of there being a potential for a serious and significant conflict of the service provider’s transcendent statutory duty to promote the best interests, protection and well-being of the children while in its care with its duty owed to its own employees providing that very care.

[22] For example, if because of the minor’s serious physical aggressiveness towards others Pioneer needs to protect the minor from causing harm to himself and to others in the process, there really is no risk of a serious conflict with the duty of care of the employer to properly warn its employees and provide assistance to them to ensure that the minor’s aggressive behavior does not result in any such harm to either the minor or the employee.

[23] This case does not involve the potential recognition of any new duty of care owed to a third party which did not otherwise exist as in the Syl Apps and subsequent decisions. The common law has long recognized that employers must provide a safe workplace which in my view would include the defendants’ need to do so for the plaintiff while she provided her services for the minor. This is not a case where the recognition of the defendants’ obligations as the plaintiff’s employer could create a conflict with its statutory duties and other duties that would interfere with its overriding mandate of protecting the best interests and welfare of the child.

[24] In that regard, I agree with the reasoning and decision of Corkery J. in Mark v Durham Children’s Aid Society, 2018 ONSC No. 5468. The facts in that case involved a similar claim for damages against the defendant service provider by its case worker who was injured while providing his care for a minor. Justice Corkery stated:

“I agree with submissions of the plaintiff that Syl Apps does not establish a principle in law that an employer in the context of a residential treatment facility owes no duty of care to its employee or that the duty of care to a child is paramount and trumps all other duties including the common law duty of care to provide an employee with a safe workplace“.

[25] The plaintiff did not specifically plead in the statement of claim that the provisions of the Occupational Health and Safety Act apply to this case and his claim.

[26] It is not necessary to decide whether that Act is applicable as the pleadings in the statement of claim make several references to breaches of the defendants’ duty in negligence, breach of contract, breach of fiduciary duty and breach of the Occupiers Liability Act. They include inadequately supervising the plaintiff, failing to adequately supervise the workplace, failing to provide proper instructions methods and procedures to be employed and failing to ensure that the plaintiff was protected from the risks that the minor posed because of information they had of his conduct towards staff.

[27] In this case, it is not plain and obvious that the moving defendants owed no duty of care to the plaintiff.

Occupiers Liability Act

[28] The defendants state that whatever its duty of care is under that statute, it does not apply as the plaintiff willingly assumed the risks when working with aggressive minors including the plaintiff.

[29] I do not accept that position as the evidence must firstly establish that the plaintiff assumed the physical and legal risk involved in the activity. Waldick v. Malcolm, 1991 71 (SCC), [1991] 2 SCR 456.

[30] As indicated above, no evidence is to be considered for the purpose of a Rule 21 motion. In any event, there is no such evidence of the plaintiff having assumed both the physical and legal risks of harm to her. Mark v. Durham Children’s Aid Society, above.

Defendants’ Immunity under Section 4(3) of the Ministry of Community and Social Services Act.

[31] Section 4(3) of the Ministry of Community and Social Services Act RSO 1990, c. M. 20 states that:

“No action or other proceeding for damages shall be instituted against the Deputy Minister or any other employee of the Ministry or anyone acting under his or her authority for any act done in good faith in the execution or intended execution of his or her duty or for any alleged neglect or default in the execution in good faith of his or her duty”.

[32] One of the issues on this motion is whether this immunity clause applies only to the Ministry and the defendants as licensed service providers while carrying out those statutory duties under the former Child and Family Services Act to protect the best interests of the children while in their care.

[33] While not deciding the point, it does not seem logical that this immunity clause was intended or in fact applies to the service providers’ other common law duties owed to its own employees such as the plaintiff that are clearly not part of it statutory duties regarding protection of the children.

[34] Accordingly, it is not plain and obvious that the plaintiff’s action cannot succeed against the defendants because of this immunity clause.

[35] The motion of the moving defendants is dismissed.

[36] If the plaintiff is asking for costs and the parties are unable to agree on those costs, the plaintiff shall provide brief submissions of no more than two pages in length together with an outline of costs within 10 days date of this decision. The moving defendants shall be entitled to similarly respond within 10 days thereafter.

[37] If no such submissions are received, the parties will be deemed to have resolved the issue of costs of this motion.

The Honourable Mr. Justice R. J. Nightingale Date: October 5, 2018