M.E. et al. v. Her Majesty the Queen in Right of Ontario et al., 2019 ONSC 5138

COURT FILE NO.: CV-16-551203

DATE: 2019-09-23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.E., T.M., R.M., AND T.F.

Plaintiffs

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, CHILDREN’S AID SOCIETY OF TORONTO, AND DURHAM CHILDREN’S AID SOCIETY

Defendants

M.E., for herself

Domenico Polla, for the Defendant, Her Majesty the Queen in Right of Ontario

Giovanna Asaro, for the Defendant, the Children’s Aid Society of Toronto

HEARD: August 7, 2019

SCHABAS J.

REASONS FOR JUDGMENT

INTRODUCTION

[1] In 2013 the plaintiff, M.E., contacted the Children’s Aid Society of Toronto (“CAST”) seeking its assistance in an application she had brought to the Criminal Injuries Compensation Board (“CICB”) relating to an historic sexual assault on her by her step-grandfather in 1987, when M.E. (then M.C.) was a child. The CICB noted that M.E. had been a ward of CAST as a teenager in the early 1990s and requested that M.E. have CAST provide it with any findings from the investigation of the allegations and any psychological assessments in its files. M.E. then requested CAST to forward any such information to the CICB and also requested a copy of her file. CAST complied, providing excerpts from M.E.’s file to the CICB and a copy of the entire file to M.E. Sometime later, M.E became aware that the file included a Pre-disposition Report prepared by a probation officer for a proceeding in which she was charged under the Young Offenders Act, R.S.C., 1985, c. Y-1, in 1992, and that this report had been disclosed to the CICB. Based on the contents of the file, M.E. took issue with her care by CAST, including its placement of her in various group homes, and objected to several alleged inaccuracies in her file.

[2] In this action, she seeks substantial damages for the alleged acts and omissions of CAST and Her Majesty the Queen in Right of Ontario (“the Crown”) (the claim against Durham Children’s Aid Society having been previously terminated), arising from her time in care as well as with respect to the contents and disclosure of her file. For the reasons that follow, I agree with CAST and the Crown that the action should be dismissed. Certain of the pleaded causes of action do not exist in law. Others are unsupported by the evidence on this motion and there are no genuine issues requiring a trial.

BACKGROUND FACTS

M.E.’s Time in the Care of CAST

[3] M.E. was born in 1976. From February 16, 1990 to December 8, 1993, when she was between the ages of 14 and 17, M.E. was in the care of CAST. She was initially a Society ward and then became a Crown ward on September 4, 1992. During her time in care, CAST was M.E.’s legal parent and guardian.

[4] While in the care of CAST, M.E. resided in a number of group homes. These group homes operated residential programs for youths experiencing various emotional, behavioural, and legal challenges. M.E. was assessed while in CAST care by physicians and psychologists. One, Dr. R. simply said she had an “adolescent adjustment disorder.”[^1] No one diagnosed, or even speculated that she suffered from any other disorders or pathologies, such as bipolar disorder, antisocial disorder, or addiction.

[5] In March 1992 M.E. agreed to engage in counselling at the encouragement of her child services worker, M.P.. Until 1993 T.W. counselled M.E. on a weekly or bi-weekly basis. T.W. provided a report to CAST dated August 10, 1993 in which she also did not diagnose M.E. with any mental health disorder or pathology. The gist of the reports from the physicians and T.W. was that M.E. was going through a difficult time in her teenage years. She did not take responsibility for her actions, was angry, particularly towards her mother, had aggressive outbursts, low self-esteem, and poor social skills.

[6] M.P. was M.E.’s child services worker from April 1991 until M.E. left the care of CAST in December 1993. In August and October 1991, M.E. reported two sexual assaults to M.P.. With M.P.’s support, M.E. pressed criminal charges on one of them. M.P. supported M.E. throughout the legal proceedings.

[7] While placed at a group home from September 7, 1990 to November 29, 1991 M.E. reported to staff that a boy had placed his hand on her breast while they were travelling in the house van. No criminal charges were laid. This was recorded in the group home’s summary of M.E.’s time there, which included a note that M.E. said that it reminded her of an experience with her step-grandfather and she was having memories or flashbacks about it. Although the group home staff worker’s report of M.E.’s stay at there was provided to CAST and is found in her file, there is no evidence of any discussion with M.E. about her step-grandfather, or that M.E. ever raised or disclosed it to M.P., T.W., or anybody else at CAST during her time in care.

[8] M.E. was the subject of charges under the Young Offenders Act while a Crown ward. In late 1992 a Pre-disposition Report (“PDR”) was prepared by a probation officer, M.R., for a sentencing hearing on December 22, 1992. A copy of the PDR is included in the CAST file. In it, M.R. noted:

While with her … grandparents, [M.E.] was sexually assaulted by her grandfather. She related that she did not tell anyone about the assault and has just recently disclosed it to her grandmother and mother.

[9] By this time, M.E. had turned 16 and was living independently. In 1993 she became pregnant and took steps to terminate her Crown wardship, which was achieved by court order on December 8, 1993.

Child-in-Care Records

[10] Children’s Aid Societies are regulated under the Child, Youth and Family Services Act 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). Until April 30, 2018 the Child and Family Services Act, R.S.O. 1990, c. C. 11 (“CFSA”) applied. The Ministry of Children and Youth Services, and previously the Ministry of Community and Social Services (the “Ministry”), has, for many years, in the Case Information Disclosure Policy (1985) (“CIDP”), set out Ministry requirements and best practices for the collection, storage, and disclosure of CAS records. The Ministry’s Children-in-Care Manual, entitled “Retention, Storage and Destruction of Records Policy”, dated June 21, 1985, provides that Crown ward records are to be kept indefinitely. While Societies have their own policies regarding confidentiality and access to records, they must comply with the CIDP and any other policies and directives from the Ministry. The CIDP also indicates that its policies and guidelines are subject to compliance with any other legislation, including the Youth Criminal Justice Act, S.C. 2002, c. 1, and its predecessor, the Young Offenders Act.

[11] Additionally, the CIDP provides for a correction process. An individual may request a correction to his or her Society records. A requester may also ask to have notice of a disagreement placed in his or her file, and where a request is refused it may be reviewed by the Child and Family Services Review Board.

[12] In fulfilling its mandate to promote the best interests, protection, and well-being of children in its care, CAST is required to record information relating to a child’s family history, health, education, and well-being, including youth court matters if any. Such records are used to develop and evaluate an individual child’s care and contain a wide range of case notes, summaries, assessments, plans of care, and other observations of a child’s behaviour. The effectiveness of the children’s aid society’s planning for the child is reviewed every 90 days. CAST also receives documents from various third parties who may be contemporaneously involved with the child, such as health, education and youth court records, reports from group homes or from others who may be engaged in overseeing the child’s care.

[13] CAST has a record retention procedure which requires that child-in-care files are to be retained indefinitely and archived in keeping with the technology of the period. CAST records date back to the late 1800s. It has close to 400,000 historical files archived on film and microfiche, as digital records, and as paper records, which are maintained in a secure off-site storage and archive facility.

[14] In 2014 the Ministry of Children and Youth Services introduced an integrated provincial information system for children’s aid societies to share information, known as the Child Protection Information Network (“CPIN”). It was developed following two child death inquests that highlighted the need to permit timely sharing of information between children’s aid societies in order to better protect children. CAST implemented CPIN in 2015. However, to date, historical files have not been uploaded to CPIN unless necessary to respond to a current service need. Access to CPIN is granted only to employees of children’s aid societies and a limited number of Ministry personnel who may access the information in accordance with Ministry policy and guidelines.

[15] In general, an individual’s historical files are only accessed in limited circumstances, including:

(a) when a child protection referral, report, or allegation is received about a child in the care of the individual;

(b) when an individual applies to be a foster parent, adoptive parent, kin caregiver, or otherwise proposes to provide care or support to a child receiving CAS services, with the consent of the individual;

(c) when an individual applies to be an employee or volunteer of a children’s aid society or a resource licensed to provide care for children, with the individual’s consent; and

(d) when an individual requests access to their records, consents or directs disclosure of them to a third party, or there is a court order or other legal requirement to disclose them.

M.E.’s File and Access to It

[16] As required, CAST maintained a detailed file of M.E.’s time in care, and when it was completed, the file was archived on microfiche and placed in storage by CAST, to be retained indefinitely.

[17] There is no record of any request having been made by any children’s aid society, or anyone else, for M.E.’s file until she made a request for it in September 2013.

[18] On September 17, 2013 M.E. wrote to CAST stating that she was “in need of some information to fulfil a request from the Criminal Injuries Compensation Board.” M.E. was seeking compensation for an historic sexual assault by her step-grandfather in 1987, which occurred prior to M.E. entering into the care of CAST. The CICB requested that M.E. have CAST “provide us with a letter summarizing: (a) the findings from their investigation of the allegations; (b) any psychological assessments they have for you in their files.”

[19] In her letter of September 17, 2013 requesting CAST’s assistance, M.E. advised CAST that she had “testified I was an angry kid, and, that this incident was the root cause. The trial ended this year and resulted in [G’s] conviction this last spring.” She continued: “I am aware that at no material time did I disclose to CAST what had happened to me.” M.E. requested that CAST “forward the information the board is requesting within the 60-day timeframe directly to them”, and also requested a copy of her file for herself.

[20] CAST acted promptly on the request. Despite M.E.’s statement that she did not disclose the assault, CAST contacted M.E. on October 8, 2013 to let her know that it “had found recording of the incident” in the file. Subsequently, on October 9, 2013 copies of documents from M.E.’s file were forwarded to the CICB. This included a copy of the PDR prepared by M.R.. It also included the report from the group home that contains the reference to a flashback of an experience with her step-grandfather. Sometime later, CAST forwarded a copy of her entire file to M.E..

[21] In her CICB matter, M.E. was represented by a paralegal. On December 12, 2013 the paralegal requested a copy of M.E.’s file from the CICB. In accordance with the request, CICB sent her the file which included what CICB had received from CAST.

[22] As a result of the paralegal’s request, M.E.’s file was uploaded to the CPIN system. While there is no ability to know, in the CPIN system, whether a children’s aid society has accessed the file, the only circumstances in which this would be done is when a child protection referral, report, or allegation is received about a child in the care of the individual, in order to ensure the safety and well-being of the child in question. Accordingly, there is no reason or basis for anyone to access M.E.’s file on CPIN, and there is no evidence that it has been accessed.

[23] In November 2015 M.E. wrote to CAST complaining of inaccuracies in her file and the failure of workers in the group home and at CAST to act upon the disclosure of the historic sexual assault by her step-grandfather. Her letter sought to have the file amended to include additional information providing background to her condition at the time. Three months later, M.E. commenced this action on April 19, 2016.

Conduct of the Action and Issues Raised

[24] M.E. has represented herself in this proceeding which has been case managed by Justice Kristjanson. On April 9, 2018 a Fresh as Amended Statement of Claim was issued. Although the claim names three additional plaintiffs – M.E.’s two adult children and the estate of M.E.’s mother – they are no longer advancing the action. Further, M.E. has discontinued the action against the Durham Children’s Aid Society.

[25] The Fresh as Amended Statement of Claim, drafted by M.E., contains many allegations. The causes of action are not stated as clearly as they might be if drafted by a lawyer. However, I largely agree with the summary in the CAST factum that the issues raised against it fall into four categories:

negligence and breach of fiduciary duty, arising from wrongful diagnosis of, and reliance on, “mental health pathologies”, and the failure to act on sexual abuse complaints (Claim, paras. 15-29);
defamation arising from the inclusion and distribution of the wrongful diagnoses and other allegedly false statements contained in the file (Claim, paras. 33–35, 40 and 41);
breach of privacy, harassment and breach of fiduciary duty arising from wrongful disclosure of M.E.’s CAST file (Claim, paras. 36-41); and
wrongful disclosure of M.E.’s youth criminal proceedings (paras. 33, 35 and 42).

[26] The claim against the Crown is also difficult to state with clarity. However, in its essence, and reading the claim generously, the plaintiff appears to seek to hold the Crown liable for “breach of fiduciary duty while acting in loco parentis” (or in place of the parent). Much, if not all of the balance of M.E.’s complaint relates to record-keeping issues and disclosure. She asserts that the Crown is vicariously liable for the CICB’s disclosure of the file to M.E.’s paralegal. M.E. also claims that the Crown breached its fiduciary duty by failing to proclaim section 8 of the CFSA that was to deal with confidentiality and disclosure of child-in-care records. The claim also includes assertions of negligence, and breach of a non-delegable duty to Crown wards to prevent unjustified invasions of privacy. (see claim, paras. 54-62.).

[27] In order to have a full record, following a case management meeting, an application was brought to the Ontario Court of Justice to permit access to the records of proceedings involving M.E under the Young Offenders Act so that they may be used in this litigation. That order was granted by Justice Scully on June 4, 2018. The order provided, however, that the parties shall not disclose the records, or any information contained in them “to any person who does not have a direct interest in this civil proceeding.” Further, in order to protect that information and the CAST information from disclosure, on Friday, April 20, 2018 Kristjanson J. ordered that the file in this matter be sealed pursuant to section 45(8) of the Child and Family Services Act and section 110 of the Youth Criminal Justice Act.

Summary Judgment

[28] Although the defendants rely on both Rule 20 and Rule 21, the issue on this motion is whether the action should be dismissed summarily on the basis that there is no genuine issue requiring a trial. In my view, the issues in the action can be dealt with on this summary judgment motion as the evidence is largely, if not entirely, uncontested and much of it involves determinations of law. The action has been case managed which has allowed the plaintiff, who is self-represented, ample opportunity to appreciate that she must put her best foot forward to lead evidence on which to make out her case, and the plaintiff has, in fact, provided sworn evidence which I am able to consider on this motion together with the evidence filed by the defendants. Indeed, M.E. has also moved for summary judgment.

[29] Having regard to the direction of the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, including the requirement that the responding parties must put their best foot forward, and that the court is entitled to assume the record contains all the evidence upon which the parties would rely if the case went to trial, I conclude that I am able to make the necessary findings of fact to reach a fair and just determination of the merits of the case, and that a trial is unnecessary.

Causes of Action Against CAST

(i) Negligence and Breach of Duty

[30] M.E. alleges that CAST was negligent and/or breached its fiduciary duty by wrongfully diagnosing her with mental health disorders or “mental health pathologies”, and in relying on those supposed opinions of professionals and non-professionals in that regard, to M.E.’s detriment by (a) placing her in various group homes because of such alleged “pathologies” or disorders; and (b) causing CAST workers to view M.E. as not credible and therefore to fail to address the assault at the group home in 1991 and the sexual assault by her step-grandfather.

[31] The problem with the plaintiff’s claim is that she was never diagnosed with a mental health disorder or “mental health pathology”, as alleged. M.E.’s medical records are in the court file. They include records of her visits to doctors, other professionals, and the observations of CAST workers in frequent notes, as they were required to record them. A physician, Dr. R., diagnosed her with “adolescent adjustment disorder”. T.W., a Ph.D. candidate in psychology, made no diagnosis and simply recommended therapy to have M.E. build trust and gain insight to reflect on her actions. In short, there were no “pathologies” or “disorders” diagnosed or relied upon as alleged.

[32] No doubt M.E. is concerned, and was perhaps surprised and taken aback, by the level of detail in the observations of her during her time in care. However, this stems from the mandate of CAST to ensure that it acts in the best interests of the child by fully recording its observations of the child. This information is necessary not only to ensure that appropriate care and services are provided to children in care, but also to ensure that children’s aid societies are fulfilling their mandate and are accountable for their actions. The rationale for the detailed recording and sharing of personal information in society files was discussed by Katarynych J. in R. v. F. (T.), 2009 ONCJ 656, [2009] O.J. No. 5802, at paras. 84 – 90 as follows:

84 Children's Aid Society parenting is, first and foremost, State-driven care. Ontario's Child and Family Services Act requires the Societies to provide their services according to particular standards, procedures and practices designed to serve the objectives of that legislation, and above all, promote the best interests, protection and wellbeing of the child. See, for example, CFSA ss. 1, 15 (3)(4), 17, 22, 25, 64, 66, 72, 73.

85 The rights and responsibilities of parenting a foster child do not rest in a single individual or even one or two individuals. The societies are required to deliver their parenting services within a hierarchical model, and as in most hierarchical models, personal information about the child flows both up and down the chain of command. Parenting in foster care is, roughly speaking, a "parenting" by committee.

86 The society's recordings are designed and maintained for the development and ongoing evaluation of planning throughout the child's foster care. Personal information recordings are used by front line staff or agents to confer with supervisory staff, and by supervisory staff to confer with management staff, and with management staff for the purposes of properly informing the society's director of services on decisions reserved to his/her place in the hierarchy. Those providing the day to day care of the child work within this model because that discipline is required of them.

87 Society parenting is rich in "personal information" record keeping. As a matter of law and regulation governing the society's parenting, neither the society nor the foster child is given any other choice. It is the peculiar nature of society parenting that drives the nature and extent and the content of the society's record-keeping for the foster child.

88 Similarly, the foster child walks a very different walk than the child being parented within his family. There are many eyes on the foster child. The majority of adults interacting with a foster child have a note-taking responsibility of some sort. The society's parenting by its nature lays bare a foster child's life in ways that are not experienced by the child being parented within his family. Foster children, unlike children in the care of their parents, have records rich in personal information gathering and dissemination because the law governing their foster care requires it.

89 Within the legal scheme established for the parenting of him, his personal information is laid bare to those who need to have it in order to carry out their responsibilities to him within that foster care. Both the nature and the extent of the law governing the society's record-keeping provides a basis for a reasonable expectation that the bulk of the society's records in relation to these two foster youths has been accumulated within those requirements.

90 Relinquishment of a measure of his privacy is the price paid by a foster child for his admission to foster care. When it comes to personal information needed to keep his foster care in line with the requirements of the CFSA and its regulations, he cannot have a reasonable expectation of privacy of that personal information.

[33] The judge continued at paras. 96 – 102:

96 An array of records are generated as a matter of law and society practices to track the child's experience in the society's parenting. For example, those who have a role in the child's ongoing care, and others, as invited, meet at least every 90 days to take a pulse on the effectiveness of the society's planning for the child and to alter that planning as needed to keep pace with the child's ever evolving needs and interests. There are also requirements related to the documentation of "incidents", whether related to the child's conduct or the conduct of others towards him.

97 Children's Aid Society records overarch the whole of a foster child's life in foster care. They also reach into his life before foster care; specifically, the historical backdrop that required the foster care. That reach can be a particularly intrusive documentation of very personal information.

98 The records are a kaleidoscope of perceptions, drawn from an array of persons schooled, either formally or informally, in an array of disciplines. The recorded information reflects both individual and collective attitudes about the child and his needs, although the record may not make that distinction. It contains opinion from both the seasoned and the unseasoned, - all bringing forward information that is be fuelled by their particular experience of the child.

99 It is also recording that is ripe for misinterpretation. These records are rife with hearsay. Any attempt to extract information without proper context escalates the risk of distortion.

100 They are as unreliable a chronicler of events as therapeutic and counselling records. The records have not been checked for accuracy by the subject, nor have they been recorded verbatim. It is in part for that reason that the mere existence of therapy records or the mere fact that a complainant has spoken to a counsellor does not meet the "likely relevant" criteria. See C.C. s. 278.3(4)(a)(b) and (f), Batte at para 71 and Mills at para 136. That reality is also the reality of record-keeping undertaken by the society.

101 Like therapy notes, these recordings are not intended to be a deadly accurate summary of all that is conveyed by a foster child. They are not prepared with a view to testing the accuracy or consistency of the child's version of events in his life and times, whether in foster care or in the care of others prior to that foster care. In relation to the child's feelings, the writer's concentration, as in the case of therapy records, is on the subtext with respect those feelings. They are records that document a particular person's interpretation of what was said or done. The foster child does not review the note-taking and has no opportunity to make changes in those notes.

102 Just as "therapy" notes are prepared to assist in the therapist in subsequent counselling sessions, recordings made in the course of a child's foster care are made to inform conferencing of that child's experience in foster care and as part on the ongoing effort to promote the wellbeing of that child.

[34] In this case, as in many others, the file for M.E. reflects a “kaleidoscope of perceptions” from people in different circumstances and disciplines. However, it does not contain the diagnoses of pathologies or illnesses that M.E. alleges. As counsel for the CAST put it, she was a difficult kid having a tough go, but she was not labelled as she alleges, and she was appropriately sent to group homes geared to dealing with young people experiencing emotional, behavioural, and legal challenges.

[35] Turning to the failure to address the alleged sexual assault at the group home and the sexual assault by her step-grandfather, the issue here is not that her complaint was disregarded because of “pathologies” or “disorders”, but whether she reported these incidents at all. M.E. did report other sexual assaults to her social worker, M.P., who provided her with extensive support, including up to and throughout a trial involving one of the complaints. Had M.P. been told about the other allegations, the strong inference is that she would have acted on them and supported M.E. in those complaints as well. However, there is no evidence that M.E. reported those assaults to anyone at CAST, and indeed that is what M.E. said in her letter to CAST in September 2013 when she stated “that at no material time that I disclose to CAST what had happened to me.”

[36] There are two references, however, to those assaults in the CAST file. In what is now a virtually unreadable report from the group home where M.E. was placed in 1991, there is reference to the fact that she complained that a boy touched her breast and that this apparently reminded her of, or caused flashbacks to an experience with her step-grandfather. There is no evidence that she raised this with M.P. or anyone else at CAST. In late 1992 she did more clearly tell her probation officer that she had been sexually assaulted by her step-grandfather, as this was contained in the PDR. But it is not clear when this report was provided to the CAST. Further, from March 1992 until well into 1993 M.E. was being counselled by T.W. on what appears to have been a weekly or bi-weekly basis, and there is no evidence that M.E. disclosed to T.W. or sought to address that sexual assault. As noted, the evidence is that M.E. did not disclose this to CAST, as she stated in her letter of September 17, 2013.

[37] Accordingly, any claims associated with negligent diagnosis, or failing to act on complaints by M.E., are unsupported by the evidence and must be dismissed.

(ii) Defamation

[38] M.E.’s claim for defamation is based on the disclosure of “mental health diagnoses” by CAST, and disclosure of her youth offences.

[39] This claim must also be dismissed. As a starting point, the file does not contain mental health diagnoses, let alone false diagnoses. As M.E. stated to the CICB in 2013, she was indeed an “angry kid”. With respect to youth offences, the fact is that M.E. was engaged in proceedings arising from charges against her under the Young Offenders Act. Truth, or justification, is a complete defence to defamation.

[40] More broadly, the defamation claim must fail because of the defence of qualified privilege. Absent malice, communications made by persons in discharge of a public or private duty to persons who have a corresponding duty to receive that communication are privileged: Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, at paras. 78-79. This defence is clearly applicable in this case where CAST social workers had a duty to receive and record information about M.E. and to make it available to others, in this case all within CAST and its care-giving function., who were involved in the file. In this regard, the comments of Katarynych J. in R. v. F. (T.), above, are apt.

[41] M.E. has led no evidence suggesting that CAST acted out of malice or in any way exceeded its statutory duty or legislative mandate in creating its records or in its very limited distribution of them. If M.E.’s defamation claim is in any way based on the release of a portion of her file to the CICB, this was at M.E.’s request and cannot form the basis for a claim. In any event, that communication would also be covered by the defence of qualified privilege. To the extent that the file is now available on CPIN, there is no evidence of anyone reading it, and therefore no publication, which is an essential element of the tort of defamation. Further, given who has access to CPIN and the rules around accessing such files, if someone has read it the defence of qualified privilege would, again, likely apply.

(iii) Privacy, Harassment, and Breach of Fiduciary Duty

[42] M.E’s claim for breach of privacy is based on an allegation that the contents of her file were wrongfully disclosed to other children’s aid societies and agencies. However, as noted, there is no evidence of any such disclosure. Indeed, the only disclosure of M.E.’s file was to the CICB, and this was done at her specific direction and request. To the extent that her file may be shared with other children’s aid societies, and indeed is now available to other societies through the CPIN network, that will be governed by the policies and rules regarding the use of CPIN reviewed above, which limit the use and distribution of that information specifically to the purposes for which children’s aid societies exist.

[43] M.E. is undoubtedly upset at the degree of private information that is contained in her file; however, as was noted in R. v. F. (T.) at para. 90, that is “the price paid by a foster child for [her] in admission to foster care…. [She] cannot have a reasonable expectation of privacy of that personal information.”

[44] Accordingly, and having regard to the very narrow scope of the tort of invasion of privacy that has thus far been recognized in Ontario (see Jones v. Tsige, 2012 ONCA 32, [2012] O.J. No. 148), this cause of action also fails.

[45] With respect to the allegation of harassment, the Court of Appeal has recently confirmed that the tort of harassment does not exist at law: Merrifield v. Canada (Attorney General), 2019 ONCA 205, 145 O.R. (3d) 494, at paras. 37-43, 105.

[46] As to the broad claim of breach of fiduciary duty, CAST may well have been in a fiduciary relationship with M.E. as it was, in law, M.E.’s parent. In this context, the Supreme Court has stated, in B. (K.L.) v. British Columbia, 2003 SCC 51, [2003] S.C.R. 403, at para. 49:

I have said that concern for the best interests of the child informs the parental fiduciary relationship, as La Forest J. noted in M. (K.) v. M. (H.), supra, at p. 65. But the duty imposed is to act loyally, and not to put one’s own or others’ interests ahead of the child’s in a manner that abuses the child’s trust. This explains the cases referred to above. The parent who exercises undue influence over the child in economic matters for his own gain has put his own interests ahead of the child’s, in a manner that abuses the child’s trust in him. The same may be said of the parent who uses a child for his sexual gratification or a parent who, wanting to avoid trouble for herself and her household, turns a blind eye to the abuse of a child by her spouse. The parent need not, as the Court of Appeal suggested in the case at bar, be consciously motivated by a desire for profit or personal advantage; nor does it have to be her own interests, rather than those of a third party, that she puts ahead of the child’s. It is rather a question of disloyalty - of putting someone’s interests ahead of the child’s in a manner that abuses the child’s trust. Negligence, even aggravated negligence, will not ground parental fiduciary liability unless it is associated with breach of trust in this sense. [emphasis added]

[47] In this case, there is no evidence that CAST breached its duty towards M.E. by acting contrary to her best interests or was in a conflict with M.E.’s interests, or that CAST ever put its interests ahead of those of the plaintiff. This head of liability therefore also fails.

Wrongful Disclosure

[48] Finally, there is the disclosure of the PDR which M.E. alleges is in breach of the Young Offenders Act and the Youth Criminal Justice Act. There are two distinct reasons which lead me to dismiss this claim. First, to the extent that that such disclosure may have been in breach of legislation, it ought to have been pursued as an offence under that legislation. Second, it is not clear that possession or disclosure of the PDR, which was properly provided to CAST as M.E.’s parent between 1990 and 1993, is a breach of either the Young Offenders Act, which was in force at the time the report was prepared and obtained by CAS, or the current Youth Criminal Justice Act. While there are detailed rules about youth court records, the obligations do not clearly apply where copies of a document, which also happen to be filed in youth court, are held by third parties.

[49] In this case, the PDR was disclosed to the CICB to support M.E.’s claim for compensation. While M.E. may not have been aware at the time that what CAST sent to the CICB included the PDR, this disclosure was limited, and the PDR contained information that was directly on point, and likely helpful, to the plaintiff’s application before the CICB.

Claims Against Her Majesty the Queen in Right of Ontario

(i) Breach of Fiduciary Duty

[50] Under the CFYSA and previously the CFSA, responsibility for the supervision, care, and placement of Crown wards lies with children’s aid societies. These societies operate as independent corporations, albeit within a legislative scheme. While the Ministry has general oversight of societies, the day to day care of children, including all decisions about their care and record keeping, is left to the society caring for the child.

[51] Crown wards have only limited oversight by the Crown. The legislation provides for periodic reviews only after 24 months of extended society care: CYFSA, s. 117(1)(b), CFSA, s. 66. In this case, M.E. was not subject to such a review because she was only a Crown ward for 15 months.

[52] Ontario submits that it was not in a fiduciary relationship with M.E. while she was in the care of CAST. Unlike the facts in B. (K.L.) v. British Columbia, where the Superintendent of Child Welfare was the legal guardian of children in foster care, which caused the parties to agree that “the relationship between the government and foster children is fiduciary in nature” (para. 38), Ontario has a different regime which puts the care of children in the hands of children’s aid societies. CAST stood in as M.E.’s legal parent and was the entity in a position of loco parentis, not the Crown.

[53] It is not necessary for me to determine the legal issue. Even if the Crown had a fiduciary duty to M.E., it was not breached in this case. As with CAST, there is no evidence that Ontario did not act in M.E.’s best interests or, applying B. (K.L.) at paras. 49-50, that it acted in a way that could be said to have put its, or anyone else’s, interests ahead of M.E.’s in a manner that abused her trust. Further, to the extent that the claim may relate to record-keeping policies, particularly that children’s aid societies keep records permanently or that they have permitted them to be improperly disclosed, there is no evidentiary basis supporting it. Ontario has simply established policies, such as the CDIP and the Manual, and now the CPIN, for the benefit of children who need protection across the province. Such policy decisions cannot be challenged, and, in any event, no evidence has been led to suggest that those decisions demonstrated any disloyalty to, or inconsistency with, M.E.’s interests.

[54] In the same vein, to the extent that M.E. complains that the CICB wrongly disclosed its file to M.E.’s legal representative, this too does not constitute a breach of fiduciary duty when it was done to assist M.E.’s representation and for no other reason. Further, if CICB acted wrongly, M.E. ought to have sued it directly.

(ii) Breach of “Non-delegable Duty”

[55] This claim is based on the assertion that Ontario failed to prevent an unjustified invasion of the plaintiff’s privacy because youth court records, and the fact that M.E. was the subject of youth court proceedings, was disclosed to the CICB and others involved in her case. Disclosure was also made to M.E.’s adult children as a result of them having been named as plaintiffs by her and they therefore received the statements of defence in this action which made reference to the youth court proceedings.

[56] None of this, however, supports the cause of action pleaded, which arises in contexts where a statute requires a public authority to do something which cannot be delegated. Again, this was discussed in B. (K.L.) at para. 36, where it was asserted that the Superintendent had a “non-delegable duty to ensure that no harm comes to children through the abuse or negligence of foster parents.” The Supreme Court rejected the claim in that case because there was no specific provision requiring the Superintendent to direct day-to-day care to ensure that no harm comes to children in the course of this care. In this case, there is no statutory duty specifically imposed on the Crown to prevent unjustified invasions of privacy respecting records of those in care. Again, the scheme in Ontario, under the CFSA and CFYSA, is that the Crown’s powers, duties, and obligations, are delegated to children’s aid societies, including record-keeping. The Ministry plays a general supervisory role, which is not delegable, but there are no provisions that impose a non-delegable duty on the Crown to protect child-in-care records from invasions of privacy caused by improper retention or disclosure by societies.

(iii) Negligence

[57] The plaintiff also asserts, in para. 61 of the Fresh as Amended Statement of Claim, that Ontario “knew or ought to have known that as a result of its continued failures, the plaintiff would suffer both immediate and long-term harm”, which has been treated as an allegation of negligence. To the extent the claim attempts to impose liability on Ontario on the same basis as CAST – for wrongful diagnoses of mental health pathologies or disorders, which led to improper placements in group homes or caused CAST workers to view her as not credible – the claim fails for lack of evidence that this occurred.

[58] Ontario also submits that the negligence claim fails for other reasons. It submits that Ontario does not owe a duty of care in these circumstances, noting that no court in Ontario has found the Crown negligent for harms suffered by Crown wards under the CFSA. Such a claim has, however, survived a motion to strike in the context of historic physical and sexual abuse, with a court finding that it was not ‘plain and obvious” that the duty of care did not exist: Papassay v. Ontario, 2015 ONSC 3438, 126 O.R. (3d) 587.

[59] Given the facts of this case, the delegation of care of Crown wards to children’s aid societies under the CFSA, and the limited role of Ontario in oversight of Crown wards, including, in this case, the limited period in which M.E. was a Crown ward, there is not a sufficient degree of proximity or foreseeability on the part of the Crown on which to extend a duty of care: D. (B.) v. Children’s Aid Society of Hamilton (Region), 2007 SCC 38, [2007] 3 S.C.R. 83, at paras. 25-30; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at paras. 22, 34 and 42-44.

[60] To the extent that the negligence claim may relate to M.E.’s complaints about record-keeping, it suffers from the same lack of evidence and lack of foreseeability or proximity. Ontario does not have custody of M.E.’s files, CAST does. Ontario has established broad principles and policies governing child-in-care records, but individual children’s aid societies develop and implement their own record-keeping practices. Leaving aside the concern that this claim is really a challenge to government policy (see Cooper v. Hobart, at para. 38), there is no basis to extend a duty of care in these circumstances, nor is there any evidence of any breach of a standard of care to support this claim.

Damages and the Correction Process

[61] Finally, on this point, Ontario notes that M.E. has led no evidence of damages suffered by her. However, M.E. is self-represented and is entitled to some leeway. Having carefully reviewed her claim and materials, and her submissions, it seems that what caused this lawsuit and her pursuit of it with such vigour, is her distress at learning that her file contains statements about her with which she disagrees, that it also includes references to her youth court proceedings, and that information about those proceedings has been disclosed. She has suffered harm, but it is not, in my view, harm for which Ontario or CAST can be held responsible, for the reasons set out above.

[62] If an individual takes issue with facts or statements in his or her file, there is a process to seek corrections. M.E. began this process under the CFSA but chose to pursue this action instead. Under the CYFSA there is a similar complaints process. Counsel for CAST advised that her client is open to considering corrections. Indeed, during argument, counsel advised that CAST was prepared to destroy M.E.’s PDR and other references to youth court proceedings. In my view, M.E. may achieve the peace of mind she seeks through these procedures and I encourage her to pursue them.

CONCLUSION

[63] The motions for summary judgment by the defendants CAST and Ontario are granted, and the action is dismissed. Should the defendants wish to seek costs, they may file submissions not exceeding three pages, not including supporting documents, within 21 days, and the plaintiff shall file responding submissions with the same restrictions within 14 days of receiving the respondents’ submissions.

Schabas J.

Released: September 23, 2019