HALDIMAND-NORFOLK, 2019 ONSC 848

COURT FILE NO.: C-1262-17

DATE: 2019-02-07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: S. H., Plaintiff

AND:

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES OPERATING AS THE ONTARIO PROVINCIAL POLICE and CHILDREN’S AID SOCIETY OF HALDIMAND-NORFOLK, Defendants

BEFORE: D. A. Broad

COUNSEL: Gordon W. Harris, Counsel for the Plaintiff

James C. Dakin and H. Yoon, Counsel for the Defendant, Children’s Aid Society of Haldimand-Norfolk

HEARD: January 10, 2019

ENDORSEMENT

Background

[1] The plaintiff commenced this action by Notice of Action issued November 28, 2017. The Statement of Claim was filed on December 22, 2017.

[2] The plaintiff claims against the Ontario Provincial Police (the “OPP”) and the Children’s Aid Society of Haldimand-Norfork (the “CAS”) for general damages in the amount of $1,000,000, special damages to be disclosed, and punitive and/or exemplary damages in the amount of $1,000,000.

[3] The Statement of Claim alleges that the plaintiff’s estranged spouse engaged in a romantic relationship with an OPP officer who was involved with the plaintiff’s treatment by the officer’s detachment.

[4] The Statement of Claim further alleges that both the OPP and the CAS engaged in a pattern of behavior where the plaintiff’s complaints about criminal or unlawful acts were not taken seriously by the CAS or the OPP, yet his estranged spouse’s word was sufficient to proceed against him without any or substantive investigation because of his estranged spouse’s relationship with an OPP member. He alleges that the actions of the OPP and the CAS have not been impartial.

[5] As against the CAS the plaintiff pleads that he was negligently investigated and maliciously prosecuted by it.

[6] The Statement of Claim set forth a list of particulars of the alleged negligence and malicious prosecution, comprising eighteen ways in which the CAS was negligent or maliciously prosecuted him. It appears that all but two of the listed particulars relate to the claim in negligence. Sub-paras. 8(h) and (i) appear to relate to the claim for malicious prosecution by asserting that the CAS caused criminal and custodial proceedings to be filed against the plaintiff when they knew, or ought to have known, were devoid of merit and colluded with members of the OPP to take positions biased against the plaintiff.

[7] The Statement of Claim alleges that, as a result of the actions or omissions of the defendants, or either of them, the plaintiff suffered damages, including numerous emotional conditions, being deprived of the love and affection of his children, access and custody of them, and out-of-pocket expenses and other losses.

[8] The Statement of Claim alleges that the defendants are additionally liable for violation of the plaintiff’s rights pursuant to sections 7, 8, 9, 10(a), 12 and 15 of the Canadian Charter of Rights and Freedoms and pleads that he is entitled to a remedy for these violations pursuant to s. 24(1) of the Charter. It is noted that in submissions, counsel for the plaintiff advised that the claims set forth in the Statement of Claim based upon alleged breaches of the Charter may only be advanced against the OPP and that therefore the Statement of Claim should be amended to make it clear that the claims based on the Charter are not advanced against the CAS.

[9] Appended to the Statement of Claim as “Exhibit A” is a list of actions taken by various named individuals or entities (not necessarily parties to the action), the names of individuals or entities the actions were taken towards or against (not necessarily parties to the action), the dates of the actions and descriptions of the actions. The Statement of Claim describes Exhibit A as “the most recent summary of particulars.”

[10] The CAS has brought a motion for an order striking portions of the Statement of Claim as against it, without leave to amend, pursuant to rule 21.01 of the Rules of Civil Procedure. The stated grounds for the motion are that the Statement of Claim fails to disclose a reasonable cause of action, no duty of care was owed to the plaintiff by the CAS, and the claim is barred by the relevant provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[11] The plaintiff has brought a motion seeking dismissal of the motion brought by the CAS and for an order granting leave to amend the Statement of Claim.

Guiding Principles on Motions to Strike Pleadings

[12] The CAS has not delivered a Statement of Defence.

[13] Rule 21.01(b) provides that a party may move to strike out a pleading on the ground that it discloses no reasonable cause of action or defence.

[14] Pursuant to rule 21.01(2) no evidence is admissible on a motion under rule 21.01(1)(b).

[15] The Court of Appeal summarized the applicable principles on a rule 21.01(1)(b) motion in the case of McCreight v. Canada (Attorney-General) 2013 ONCA 483 at paras. 39-40, as follows:

(a) the claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action;

(b) there is a need, in the interest of efficiency and correct results, to weed out hopeless claims - a housekeeping dimension which underlies rule 21;

(c) if the cause of action pleaded has been recognized, all of its essential elements must be pleaded;

(d) if the cause of action has not been recognized, this is not necessarily fatal but there must be a reasonable prospect that the claim will succeed;

(e) a claim should not be struck merely because it is novel;

(f) the facts pleaded are accepted as being true for the purposes of the motion, unless they are manifestly incapable of being proven;

(g) the pleading forms the basis of the motion, and accordingly, possible future facts that have not been pleaded may not supplement the pleading;

(h) the pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies; and

(i) a motion to strike should not be confused with a summary judgment motion which has a different test, a different purpose, and different rules relating to evidence.

Claim in Negligence

(a) Position of the CAS

[16] The CAS’ position is straight-forward, namely that the law is settled that a child protection agency does not owe a duty of care to third parties, including parents or caregivers of children, in exercising its child protection mandate under the Child and Family Services Act, R.S.O. 1990, c. C.11 and that this includes its conduct of investigations of child protection concerns. Moreover, the principle that a child protection agency does not owe a duty of care to third parties in conducting investigations of child protection matters applies equally when claims or allegations of gross negligence, improper conduct and bad faith are also made.

(b) Position of the Plaintiff

[17] The plaintiff’s position is that the law is not settled that a child protection agency owes no duty of care to third parties for negligent investigations, particularly where it is alleged that the investigation was carried out in bad faith. He says that there are competing authorities on the question. A claim should only be struck out on a motion under rule 21.01(b) in the clearest of cases and where the applicable law is settled.

[18] Counsel for the plaintiff acknowledges that the Statement of Claim, as currently drafted, does not expressly allege bad faith on the part of the CAS, but argues that bad faith in implicit in the pleading. He seeks leave to amend the Statement of Claim to specifically plead bad faith to clarify this issue.

[19] He argues that the allegations of bad faith (either implicit in the existing Statement of Claim or explicit in the proposed amended Statement of Claim) on the part of the CAS is a distinguishing factor militating against the claim against the CAS in negligence from being struck out.

Discussion

[20] The starting point for consideration of the law relating to whether a child protection agency mandated by statute may be liable to third parties in negligence is the seminal case of Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83 (S.C.C.). In that case a child was apprehended by the Children’s Aid Society and was subsequently found to be a child in need of protection. She was ultimately sent to a treatment centre and was made a permanent ward of the Crown. The child’s parents, grandparents and siblings brought an action asserting that the treatment of the child by the treatment centre and her social worker/case coordinator had been negligent, depriving the plaintiffs of a relationship with her.

[21] The Supreme Court of Canada, in a unanimous decision, found that neither the treatment Centre nor the child, a social worker/case coordinator owed a duty of care to the family of the child. Abella, J. writing for the court, observed, at para. 41, that the deciding factor in the analysis of whether there had been sufficient proximity between the treatment centre and social worker/case coordinator and the child’s family such that it would be fair and just to impose a duty of care, is the potential for conflicting duties. She stated that “imposing a duty of care on the relationship between the family of the child in care and the child’s court-ordered service providers creates a genuine potential for ‘serious and significant’ conflict with the service providers’ transcendent statutory duty to promote the best interests, protection and well-being of the children in their care.”

[22] Abella, J. reviewed the governing statute being the Child and Family Services Act s. 1(1) of which set forth its paramount purpose as being “to promote the best interests, protection and well-being of children.” At para. 48 she noted that to impose a duty of care towards the child’s family a treatment centre and its social workers creates a potential conflict with their ability to effectively discharge their statutory duties and would create the potential for a chilling effect on social workers, who may hesitate to act in pursuit of the child’s best interests for fear of the criticism and litigation from the family.

[23] The plaintiff in this case points to the case of T. (D.) v. Highland Shores Children’s Aid, 2016 ONSC 1432 (S.C.J.) a decision of M.J. Quigley, J. in support of his submission that the law is unsettled on the question of whether a child protection agency owes a duty of care to third parties in respect of an alleged negligent or bad faith investigation.

[24] The plaintiff in T. (D.) was the father of children in respect of whom the defendant Society carried out an investigation and commenced child protection proceedings on the basis that the children were at risk of sexual and emotional harm. The child protection application was dismissed following a trial and the plaintiff subsequently commenced an action against the Society and certain of its employees, alleging that they approached their statutory duties with a biased attitude toward him and that they engaged in negligent and/or bad faith conduct.

[25] Justice Quigley found that the concern of the Supreme Court in Apps that placing a duty on a child’s service/treatment providers in favour of the child’s parents would place the service provider in a conflict situation, does not arise where the alleged negligent and bad faith conduct occurred before the child was found to be in need of protection. As result, he found that the risk of conflicting duties does not justify a refusal to find proximity.

[26] Reference was made by Justice Quigley to the decision of Morgan, J. in A.D. v. T.G., 2013 ONSC 958 (S.C.J.) for the proposition that the risk of conflicting duties owed by the child protection agency demonstrates the foreseeability and proximity and it is at least arguable that there is a prima facie duty of care to the plaintiff parent in that context.

[27] Justice Quigley stated that he did not consider the potential for conflict to negate the prima facie duty of care in the circumstances. He noted that the relationship between the investigating child protection worker and the allegedly abusive parent is personal, close and direct, and the parent has a critical personal interest in the conduct of the investigation.

[28] Justice Quigley concluded at para. 61 that there was no binding precedent holding that there is no duty of care owed by a children’s aid society worker to a parent under investigation for child abuse, and that the Supreme Court’s decision in Apps is distinguishable on its facts.

[29] A.D. concerned a situation where the plaintiff alleged that he had been wrongfully accused of terrorism activities by police and by his ex-spouse and that the children’s aid society had intentionally or negligently failed to correct their records in respect of its child protection investigation and proceedings to remove the false allegations. The Society and its employees defended the action and brought a motion for summary judgment seeking dismissal of the action against them. It is noted that the motion for summary judgment pre-dated the Supreme Court of Canada’s decision in Hryniak v. Mauldin , 2014 SCC 7, [2014] S.C.J. No. 7 which ushered in a major shift in the law relating to summary judgment and accordingly Justice Morgan was applying the then current “full appreciation” test for the granting of summary judgment.

[30] Justice Morgan distinguished Apps, noting at para. 79 that it was concerned with a very special legal context, namely the duties that medical professionals owe to their child patients. At paragraph 80 he stated that cases from across the country have distinguished Apps on the ground that it applies only to the medical treatment context, or in the context of the child in the care of a state agency and has not been taken to apply in all situations in which children’s organizations are involved in family matters. He pointed to the case of K.M.D. v. Children’s Aid Society of the Region of Peel, [2008] O.J. No. 4772 (S.C.J.) as having held that Apps only applies to a claim for alleged negligent treatment and care of the child after apprehension and not a claim for negligent investigation.

[31] It is not apparent that the case of I. v. DCAS, 2015 ONSC 1721 (S.C.J.) was referred to Quigley, J., as his Reasons in T. (D.) make no reference to it.

[32] In I. v. DCAS the plaintiffs, who acted as foster parents of children who were removed from their home in the course of a child protection investigation by the children’s aid society, commenced an action alleging that the Society and its employees carried out the investigation in an incompetent, unreasonable, unprofessional and careless manner and also alleged that two of the Society’s employees acted in bad faith in connection with the investigation. The defendants brought a motion pursuant to rule 21.01(1)(b) seeking dismissal of the action on the basis that a child protection agency and its employees do not owe a duty of care to a parent when conducting an investigation regarding a child.

[33] Justice Lack, after reviewing the jurisprudence, concluded at para. 22 that “the law is settled that a child protection agency does not owe a duty of care to third parties in exercising its child protection mandate under the Child and Family Services Act and that includes in conducting investigations of child protection concerns.”

[34] Justice Lack considered the case of B.(D.S.) v. Kenora Rainy River Child and Family Services, 2014 ONSC 5621 (S.C.J.), a decision of Fitzgerald, J..

[35] Justice Lack, at paras. 21 and 22, agreed with Fitzgerald, J.’s finding in B. (D.S.) that the decision in A.D. was an anomaly, as it was incongruous with Apps and against the weight of authority which accepts that a child protection agency owes no duty of care to a parent of a child in need of protection.

[36] The issue of whether a child protection agency owes a duty of care to parents or other adult family members in the investigation of child protection matters was dealt with square on by Raikes, J. in the case of B.K. 2 v. Chatham-Kent Children’s Services, 2016 ONSC 1921 (S.C.J.). After reviewing the case authorities Justice Raikes stated at paras. 97 and 98 as follows:

It is well-settled law that a Children's Aid Society and its employees owe no duty of care to parents or other adult family members in its investigation of child protection matters or in the proceedings which flow therefrom: see Irish v. DCAS, 2015 ONSC 1721 at para. 22; Pereira (Litigation guardian of) v. Ontario, 2015 ONSC 2249 (Ont. S.C.J.); Major v. York Region Children's Aid Society, 2011 ONSC 5635 (Ont. S.C.J.) at para. 13, aff'd, Major v. York Region Children's Aid Society, 2012 ONCA 223 (Ont. C.A.).

This principle applies equally to claims where allegations of gross negligence, improper conduct and bad faith are also made: Plummer v. Children's Aid Society of Hamilton, 2011 ONSC 4231 (Ont. S.C.J.) at paras. 14-20; P. (K.A.) v. Children's Aid Society of Toronto [2007 CarswellOnt 10032 (Ont. S.C.J.)], 2007 55832; Major v. York Region Children's Aid Society, supra.

[37] Justice Raikes, at para. 99, adopted the following passage from the decision of Dunphy, J. in Pereira (Litigation guardian of) v. Ontario, 2015 ONSC 2249 (S.C.J.):

There have been cases since the Syl Apps case which have sought to limit its scope to agencies providing for care or treatment of a child already in custody (as opposed to cases relating to the investigation stage). With respect, I cannot agree that the decision can or should be so limited. The statute upon which it is based makes no such distinction nor does logic or the principles of the decision support a narrow, restrictive reading of it. Justice Abella called for a "clearly defined" description of the duty of such workers. There is no fundamental or principled difference between the role of a CAS such as the defendant in this case undertaking an investigation of possible abuse and its role or that of other agencies involved in providing care or shelter once a decision to apprehend has been made. In both cases, the interposition of a parallel duty to parents that may conflict with the overriding duty to the child poses the same risk of conflict and must be rejected for the same reasons.

[Emphasis added in B.K. 2 ]

[38] At para. 100 Raikes, J. concluded that the very real potential for conflict which would arise if a duty of care were owed to parents negates the recognition and imposition of such a duty.

[39] Although it is clear that Raikes, J. did not have the benefit of Justice Quigley’s decision in T. (D.) (having been decided more than two months after the hearing in B.K. 2) in my view, the law is well settled that a child protection agency acting under the authority of the Child and Family Services Act and its employees owe no duty of care to parents of a child which is the subject of child protection proceedings (or to other third parties), including in the course of an investigation, even where the claims include allegations of gross negligence, improper conduct or bad faith.

[40] The foundational underpinning of the Supreme Court of Canada’s decision in Apps is the potential for conflict between the overarching duty on child protection agencies to promote and protect the best interests and well-being of children and the existence of a countervailing duty to parents. There is no principled reason for suggesting that this conflict would be any less relevant or acute during an investigation of possible neglect or abuse than it would be following apprehension of a child.

[41] In my view, on the basis of the decisions in I. v. DCAS, Pereira, and B.K. 2, the attempt to distinguish Apps on the basis that it does not apply to pre-apprehension investigations by child protection agencies has been, or should be, put to rest in Ontario.

[42] In the case at bar, I find that the claim in the Statement of Claim that the CAS was negligent in conducting its investigation does not disclose a reasonable cause of action. An amendment to explicitly claim that the CAS investigation was carried out in bad faith would not assist the plaintiff in showing a reasonable cause of action. There can be no stand-alone action for bad faith. An allegation of bad faith must be tied to some breach of duty by the defendant. Given that the CAS owes no duty of care of the plaintiff, a bald claim that it acted in bad faith cannot constitute a reasonable cause of action. Accordingly the allegations as against the CAS in paragraphs 6, 8(a)-(g), (k)-(r) and Exhibit A in the Statement of Claim are struck without leave to amend.

Claims for Malicious Prosecution, Conspiracy and Defamation

[43] It is noted that the prayer for relief in the Statement of Claim does not identify the specific bases upon which the general damages are claimed.

[44] In paragraph 8 of the Statement of Claim it is alleged that the plaintiff was “negligently investigated and maliciously prosecuted by the Defendant CAS”.

[45] As indicated above, included in the list of particulars in para. 8 is a claim that CAS “caused criminal and custodial proceedings to be filed against” the plaintiff and “colluded with members of the OPP to take positions biased against” the plaintiff.

[46] No particulars were provided of the “criminal and custodial proceedings” that the CAS are alleged to have filed against the plaintiff.

[47] The CAS points out that the elements of the tort of malicious prosecution were elucidated by the Supreme Court of Canada in the case of Kvello v. Miazga, 2009 SCC 51 at para. 3, as follows:

The plaintiff must prove that the prosecution was:

(1) initiated by the defendant;

(2) terminated in favour of the plaintiff;

(3) undertaken without reasonable and probable cause; and

(4) was motivated by malice or a primary purpose other than that of carrying the law into effect.

[48] The CAS argues that the first element of the test is not met as against it. As the Supreme Court stated at para. 45 of Kvello “the decision to initiate or continue criminal proceedings lies at the core of prosecutorial discretion.”

[49] The initiation of any criminal proceedings against the plaintiff would have been the responsibility of the Crown Attorney’s office, which is not a party to the action.

[50] The plaintiff could not point to any statutory or other basis by which the CAS had any authority to initiate criminal proceedings against him. There is no allegation in the Statement of Claim that it did so in any event.

[51] The plaintiff did not cite any authority for the proposition that a complainant or witness in a criminal prosecution initiated or continued by the Crown may be found liable for malicious prosecution.

[52] I find that the Statement of Claim does not disclose a reasonable cause of action against the CAS on the basis of malicious prosecution. The allegation of malicious prosecution as against the CAS at paragraph 8 and sub-paragraphs 8(h)(i) and (j) of the Statement of Claim are hereby struck without leave to amend.

[53] The Factum of the CAS submits that allegations of what appears to be the tort of conspiracy in the Statement of Claim should be struck. However, upon a review of the Statement of Claim it is difficult to identify a pleading of the tort of conspiracy.

[54] The plaintiff did not address the matter of conspiracy in his Factum. In his submissions, counsel for the plaintiff conceded that any words in the Statement of Claim referring to or connoting conspiracy and defamation are embarrassing and should be struck. With respect to defamation, there appear to be some words in Exhibit A to the Statement of Claim that suggest defamation such as the reference opposite the date “July 7 [2014] onward” and “CAS Haldimand” – “Slander [the plaintiff] to various persons.”

[55] On the basis of the concession of the plaintiff’s counsel, I find that the Statement of Claim discloses no reasonable causes of action on the basis of conspiracy and defamation. Any references in the Statement of Claim and Exhibit A thereto to claims on the basis of conspiracy and defamation as against the CAS are struck without leave to amend.

Claims for Breach of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[56] As indicated above, counsel for the Plaintiff conceded in submissions that the claims in the Statement of Claim based upon alleged breaches of the Charter may only be advanced against the OPP and not against the CAS. Accordingly the claims alleging Charter breaches in paragraphs 13, 14 and Exhibit A of the Statement of Claim shall be struck as against the CAS, without leave to amend.

Generally

[57] In light of the foregoing findings it is not necessary to consider the submissions of the CAS based upon the Limitations Act, 2002.

[58] Upon the striking of the claims in the Statement of Claim against the CAS on the basis of negligence, malicious prosecution, conspiracy, defamation and breach of the Charter, it appears that there are no remaining bases to support the plaintiff’s claims for general, special and punitive or aggravated damages against the CAS. The Statement of Claim should therefore be struck in its entirety as against the CAS without leave to amend.

Motion of the Plaintiff for Leave to Amend the Statement of Claim

[59] No leave to amend having been given as set forth above, the motion of the plaintiff for leave to amend must be dismissed.

[60] No mention was made in submissions with respect to the amendments sought in relation to the claims against the OPP in the draft Amended Statement of Claim and counsel for the OPP did not appear. Accordingly the dismissal of the plaintiff’s motion should be without prejudice to his right to move for leave to amend the Statement of Claim in reference to claims against the OPP on notice to it.

Disposition

[61] For the foregoing reasons, it is ordered as follows:

(a) The Statement of Claim is struck in its entirety as against the defendant Children’s Aid Society of Haldimand-Norfolk;

(b) The plaintiff’s motion for leave to amend the Statement of Claim is dismissed without prejudice to his right to move for leave to amend the Statement of Claim in reference to claims against the defendant Her Majesty The Queen in Right of Ontario as Represented by The Ministry Of Community Safety And Correctional Services operating as the Ontario Provincial Police;

(c) The action be dismissed, as against the against the defendant Children’s Aid Society of Haldimand-Norfolk.

[62] The parties are strongly urged to agree upon costs. If they are unable to do so, the defendant Children’s Aid Society of Haldimand-Norfolk may make written submissions as to costs within 15 days of the release of this Endorsement. The plaintiff has 10 days after receipt of the said defendant’s submissions to respond and the defendant Children’s Aid Society of Haldimand-Norfolk has a further 5 days to reply. Each party’s initial written submissions shall not exceed 5 double-spaced pages, exclusive of Offers to Settle, Bills of Costs or Costs Outlines and authorities, while the moving defendants’ reply submissions, if any, shall not exceed 2 double-spaced pages. All submissions shall be forwarded to me at my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

D.A. Broad, J.

Date: February 7, 2019