Vernon v. NEO Family and Children’s Services, 2018 ONSC 7231

minicounsel

Court File No.: 14-62613 Date: December 3, 2018 Ontario Superior Court of Justice

Between: Stefan Darcy Vernon, Plaintiff/Respondent – and – North Eastern Ontario Family and Children’s Services, Defendant/Moving Party

Counsel: Matthew G.T. Glass, for Plaintiff/Respondent James C. Dakin, for Defendant/Moving Party

Heard: August 9, 2018

Justice Sally Gomery

1North Eastern Ontario Family and Children’s Services (“NEOFCS”) seeks summary dismissal of this action against it by Stefan Darcy Vernon.

2Stefan says that he was abused by his father Bryan Vernon from 1982 until 1990, when he was placed in his mother’s sole custody, and that he suffered physical and psychological injuries as a result. [1] He alleges that NEOFCS, the local children’s aid society, failed to investigate whether he was at risk or to take timely steps to remove him from his father’s custody. He alleges that NEOFCS’ conduct was negligent and seeks $5 million in damages.

3NEOFCS seeks summary dismissal of the action on the basis that Stefan has not produced an expert report on the applicable standard of care.

The legal framework

4On a contested rule 20 summary judgment motion, I must first determine if there is a genuine issue requiring a trial without using my fact-finding powers at subrules 20.04(2.1) and (2.2). There is no genuine issue requiring a trial if the evidence on the motion allows me to fairly and justly adjudicate the dispute and summary judgment is a timely, affordable and proportionate procedure. [2] If there is a genuine issue requiring a trial, I may use the fact-finding powers to decide it, so long as doing so is not against the interest of justice. Using the powers will be in the interest of justice if it “will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole”. [3]

5In a negligence claim, the plaintiff must show that the defendant breached the applicable standard of care. In Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, the Supreme Court said that, as a general rule:

[T]he standard of care in negligence is that of the reasonable person in similar circumstances. In cases of professional negligence, this rule is qualified by an additional principle where the defendant has special skills and experience, the defendant must ‘live up to the standard possessed by persons of reasonable skill and experience in that calling’. [4]

6In many negligence cases, a court will not need any expert evidence to determine the applicable standard of care. In a professional negligence case, however, the plaintiff must prove what another reasonably skilled and experienced professional would have done in the circumstances of the case. This generally requires expert evidence. [5]

7A court may grant summary judgment dismissing a professional negligence claim where the plaintiff has not produced an expert report within a reasonable period of time. This most often occurs in medical malpractice actions. In such cases, the motions judge may conclude that a trial judge could clearly not assess the reasonability of the defendants’ conduct without the assistance of an expert physician or nurse. [6] If the plaintiff has not produced an expert report establishing the relevant standard of care, there is no genuine issue requiring a trial.

8An expert report is not however required in every case where one of the defendants has professional qualifications. In Barclay, the Ontario Court of Appeal identified two exceptions to the general rule. Barclay involved an action in negligence against the police. The Court observed that expert evidence on the standard of care is not required if an assessment of the defendant’s conduct does not require any particular technical expertise:

Whether expert evidence as to the standard of care of a police officer is required turns on the nature of the issues and the facts of each case, with particular regard to the specialized or technical nature of the circumstances, and whether a trier of fact can rely on its own knowledge and experience to determine the appropriate standard of care and whether it is met. [7]

9The second exception is where “the impugned acts are so egregious that it is obvious that the defendant’s conduct has fallen short of the standard of care without even knowing precisely the parameters of the standard of care”. [8] If the plaintiff alleges acts or omissions that obviously would violate any reasonable standard of care that might apply to a defendant professional, the court will not require the plaintiff to call expert evidence to prove a breach.

The parties’ positions on the motion

10NEOFCS characterizes Stefan’s action as a professional negligence claim. As a result, it contends that Stefan must prove the standard of care applicable to a child protection agency in the 1980s. Since he has not produced an expert report or evidence showing that this case falls into one of the exceptions identified in Barclay, NEOFCS says there is no genuine issue requiring a trial and asks me to dismiss the action.

11Stefan argues that the applicable standard of care is set out in the Child and Family Services Act (“CFSA”) in force during the relevant period of time, so he does not need to produce expert evidence to establish it. In the alternative, Stefan says that both of the exceptions in Barclay apply. Finally, he asks me to find that NEOFCS has intentionally and improperly shielded its own expert from cross-examination, depriving this court of the evidentiary record required to determine the motion.

Has NEOFCS improperly shielded its expert?

12I will deal with this issue first, because its disposition will determine the evidence that I can consider on the motion.

13The report by NEOFCS’ expert Mr. Koster is inadmissible on the motion. A party wishing to rely on the opinion of an expert on a summary judgment motion must put the evidence forward in a way that allows the expert to be cross-examined. [9] The expert must either swear an affidavit that incorporates the substance of their opinion or an affidavit attaching their report as an exhibit and swearing as to the truth of its contents. [10] As stated by Strathy J. (as he then was) in Suwary, at para. 30:

The reason for this rule is obvious: a party relying on expert evidence in a motion for summary judgment does not “play trump” by shielding its expert from cross-examination through the use of an “information and belief” affidavit of someone completely unqualified to testify on the issue.

14Mr. Koster’s report is produced as an exhibit to an affidavit by Carole Jenkins’ a lawyer. It is therefore not properly in evidence. In argument, counsel for the NEOFCS pointed out that Stefan’s counsel had never asked to cross-examine Mr. Koster. This does not matter. A responding party is not obliged to examine a witness whose evidence is not properly before the court. [11]

15Since the content of Mr. Koster’s affidavit is inadmissible, the only thing I can take from Ms. Jenkins’ affidavit is that NEOFCS has an expert report on the standard of care from Mr. Koster that it has served on plaintiff’s counsel, and the plaintiff has not produced its own expert report.

16The absence of any evidence from NEOFCS on the merits of Stefan’s claim does not automatically prevent it from seeking summary dismissal of the action. Stefan has the burden of proving the applicable standard of care and is obliged to put his “best foot forward” in responding to the motion. I am however left with limited evidence on the motion. The defendant has not filed any admissible evidence on NEOFCS’ handling of the file, nor has it cross-examined Stefan on his affidavit. In these circumstances, I must assume that at trial he will prove the conduct he describes.

Does Stefan need expert evidence to prove the standard of care?

17In his affidavit in response to the motion, Stefan describes his family’s interactions with NEOFCS from the time of his birth until age 9, when he was removed from his father’s custody. He says that NEOFCS repeatedly ignored serious indications that he was at risk and in need of protection. These indications took the form of medical reports and letters sent to NEOFCS. The record before me does not include any documents from NEOFCS’ record showing what, if anything, it did in response to some of the information it received about Bryan’s ability to care for a young child.

18Stefan says that NEOFCS failed to meet the required standard of care in two different ways. First, it failed to meet its obligation to investigate whether he was at risk while under Bryan’s care and to protect him as required under the CFSA. Second, NEOFCS’ professional staff failed to meet the standard of similarly educated and trained professionals acting reasonably in similar circumstances.

19In my view, these allegations give rise to separate and distinct claims in negligence. In the first claim, Stefan says that NEOFCS failed, institutionally, to respond to information that required it to act pursuant to the CFSA. In the second, he alleges that NEOFCS’ professional staff were negligent in how they went about investigating his situation and in taking appropriate steps to ensure that he was not at risk.

20I am not convinced that Stefan would need expert evidence with respect to his claim that NEOFCS, as an institution, breached its obligations under the CFSA.

21NEOFCS argues that the CFSA provided only a general framework for the operation of children’s aid societies, and that a court could not determine whether a standard of conduct required as a result of the legislation had been breached in the absence of expert evidence. I do not agree.

22Section 15(3) of the CFSA required a society to investigate “allegations or evidence” that children may be in need of protection. Section 37(2) of the CFSA set out a list of circumstances where a child would require protection. This included circumstances where a child had suffered physical harm, sexual molestation or sexual exploitation, or was at substantial risk of suffering such harm, molestation or exploitation, by a person having charge of them or caused by that person’s failure to care for, supervise or protect the child adequately.

23These provisions are relatively detailed and non-technical in nature. In my view, a court would not necessarily need expert evidence to assess whether information received by the defendant amounted to “allegations or evidence” that should have triggered some sort of response. Ontario judges have knowledge and experience in child protection matters. This could allow a judge determine whether the statutory standard of care was met based on the requirements set out in the CFSA itself, in combination with NEOFCS’ policies and evidence as to what the defendant did or did not do in response to information it received about Stefan’s situation.

24In addition to the claim of institutional negligence, Stefan is alleging professional negligence by NEOFCS workers involved in his case. For example, he says that in 1990 he was apprehended by NEOFCS after he arrived at school with extensive bruising and that Bryan was charged with assault. After the assault charge was dropped, Stefan alleges that NEOFCS was negligent in returning him provisionally to Bryan’s care in 1990 pending a medical assessment. I do not know the basis for NEOFCS’ decision because I do not have the defendant’s complete record. I can speculate that the decision to return Stefan to his father was not based on any general policy in place at NEOFCS, but on the assessment of case workers who evaluated his specific situation. In that case, a trial court would have to understand what a reasonably competent case worker in Ontario at the time would have done. This would likely require assistance from an expert.

25As observed by the Court of Appeal in Barclay, however, expert evidence on the standard of care of an investigator may or may not be needed depending on “the nature of the issues and the facts of each case”. Based on Stefan’s unchallenged evidence, the breaches alleged could fall into the two exceptions to the general rule requiring expert evidence. For example, in his affidavit, Stefan says that NEOFCS received letters in 1982 and 1984 that should have caused it to investigate whether he was in need of protection. If the evidence at trial showed that NEOFCS’ professional staff failed to consider this information, a court might conclude that this was obviously negligent without even knowing precisely the parameters of the standard of care.

26NEOFCS has not cited any authority for the proposition that every plaintiff who sues a child protection agency must produce an expert report, nor would such authority be consistent with the principles set out in Hill. NEOFCS has cited one case where the Court of Appeal upheld an action against an agency based, in part, on expert evidence on the standard of care expected of a professional social worker investigating cases of suspected child abuse. [12] The Court does not however say that the action would have failed in the absence of this expert evidence, nor can we infer from the decision that expert evidence is required in every case against a children’s aid society.

27NEOFCS has attempted to draw an analogy between this case and actions for negligent investigation against police. In Hill, an action for malicious prosecution and negligent investigation against the police, the Supreme Court held that the conduct at issue in that case had to be measured against that of “the reasonable police officer similarly placed”. [13] On the other hand, in Meady v. Greyhound Canada Transportation Corp., the Ontario Court of Appeal upheld a trial judge’s decision that he did not require expert evidence to determine the professional standard of care of defendant police officers in the circumstances of that case. [14] This shows that the need for expert evidence in a negligent investigation case depends on the nature of the claim and the conduct at issue.

Based on the pleadings and the evidence on the motion, I conclude that Stefan will not necessarily need expert evidence to establish the standard of care applicable to NEOFCS. As a result, there is a genuine issue requiring trial. Furthermore, given the limited evidence on the motion, I could not achieve a fair and just adjudication of the case using my fact-finding powers under rules 20.04(2.1) and (2.2).

Conclusion

28The motion for summary judgment is dismissed with costs.

29Having reviewed the parties’ cost outlines and applying the factors set out at rule 57.01, I award, I award costs of $5000 to the plaintiff on the motion, inclusive of fees, disbursements and HST.

Justice Sally Gomery Released: December 3, 2018