Amyotte v. Kawartha Haliburton Children’s Aid Society, 2021 ONSC 7378

COURT FILE NO.: CV-19-120

DATE: 2021109

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHERYL AMYOTTE

Plaintiff

– and –

KAWARTHA HALIBURTON CHILDREN’S AID SOCIETY, CARLEY SNOODEN, ASHLEY MESICK, ERIN BURNS, STEPHEN MARTYN and SUZANNE HOWARD-PEACOCK

Defendants

Cheryl Amyotte in person

Chester Wydrzynski for the Defendants

HEARD: September 16, 2021

RULING ON THE DEFENDANTS’ summary judgment MOTION

c. boswell j.

INTRODUCTION

[1] The defendant, Kawartha Haliburton Children’s Aid Society (the “Society”), is a designated child protection agency under the Child, Youth and Family Services Act, 2017, R.S.O. 2017, c. 14, Sched. 1 (the “CYFSA”). The balance of the defendants are, or were at the relevant times, employees of the Society.

[2] The plaintiff is an individual who resides in the service area of the Society. She has a history of training and experience in childcare. She would like to be considered as a placement option for children in need of care.

[3] The Society does not view the plaintiff as a suitable service provider. They have told her so, in writing. She takes offence to some of the things the Society has said. On May 12, 2018 she issued a claim against the Society. I will do my best to describe and “unpack” the substance of the claim below. My general impression is that it is defamation-based. The defendants delivered a Statement of Defence in June 2018. They now ask the court to grant them summary judgment dismissing the plaintiff’s claim.

[4] The motion involves the broad question of whether the plaintiff has raised a genuine issue for trial. Determining that question will engage the court in a consideration of the following:

(i) Whether the defendants are immune from liability by virtue of s. 37(1) of the CYFSA;

(ii) Whether the defendants breached a duty owed to the plaintiff, whether it be a fiduciary duty, a duty of care or a duty of confidentiality;

(iii) Whether any of the plaintiff’s Charter rights are implicated and, if so, whether they have been infringed; and,

(iv) Whether any utterances made by any of the defendants were defamatory and, if so, whether the defendants have valid defences to the defamation claim.

[5] I begin with an overview of the principles that guide the court’s assessment of a motion for summary judgment.

THE GOVERNING PRINCIPLES

[6] Civil actions prosecuted in Ontario are governed by the Rules of Civil Procedure. Absent a resolution, they generally proceed through four principal stages: pleadings, discovery, pre-trial and trial. The full process is typically time-consuming and expensive.

[7] Some cases do not require or warrant the full machinery of the court process, including a trial, to resolve. The Rules recognize this fact and contain a suite of provisions that provide shortcuts to final dispositions in appropriate cases. Organized under the heading, Disposition Without Trial, they range from default proceedings to mandatory mediation and include mechanisms for determining legal issues before trial, dismissals for delay and summary judgment.

[8] This motion engages r. 20, the summary judgment rule. Of particular significance here are rules 20.01(3) and 20.04(2) and (2.1), which provide as follows:

20.01(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

20.04(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

20.04(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence

[9] The current iteration of r. 20 dates back to 2010, though the rule has been in place, in previous iterations, for decades.

[10] Prior to amendments introduced in 2010, motions judges were constrained by appellate authority from weighing evidence or making credibility determinations on summary judgment motions. In 2010 the rule was amended to add subsection 2.1. The intention was to enhance the ability of motions judges to make findings of fact on contested evidence, with the ultimate aspiration being to attenuate, to some extent, pressing issues of access to justice.

[11] The application of r. 20.02 came before the Supreme Court for consideration in 2014 in Hyrniak v. Mauldin, 2014 SCC 7. The Court used the opportunity to make a very blunt assessment of the state of access to civil justice in Ontario. It said that a culture change was required – a fundamental shift needed in the way the court does business – if access to justice was to be improved. Justice Karakatsanis, writing for a unanimous court, described this culture shift, at para. 2 of the ruling, as follows:

This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

[12] Where r. 20 was once limited to weeding out clearly unmeritorious claims or defences, it now represents a significant alternative model of adjudication.

[13] Hyrniak instructs that there will be no genuine issue requiring a trial when the motion judge is able to reach a fair and just determination on the merits on the evidentiary record presented on the motion:

This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. (Hryniak, para. 49).

[14] Although the rule does not, on its face, appear to require a staged analysis, Hryniak instructs that rule 20.04(2) should, in fact, be applied in two stages.

[15] First, the motions judge must determine if there is a genuine issue requiring a trial based only on the evidence filed on the motion, without resort to the enhanced fact-finding powers described in rule 20.04(2.1). No genuine issue requiring a trial will exist if the evidence permits the motions judge to fairly and justly adjudicate the dispute in a timely, affordable and proportionate manner. If no genuine issue requiring a trial exists, judgment should be rendered accordingly.

[16] If the motions judge concludes at the first stage that a genuine issue for trial exists, then stage two is triggered. At stage two, the motions judge is directed to consider whether the need for a trial may be avoided by resort to the enhanced fact-finding powers set out in r. 20.04(2.1). The motions judge may utilize those powers, in his or her discretion, unless doing so would be contrary to the interests of justice.

[17] A great deal of jurisprudence has developed in relation to summary judgment motions, both before and after the 2010 amendments. Much of the pre-2010 jurisprudence remains valid. In addition to the principles enunciated in Hyrniak, the following others have emerged over the years and continue to apply:

(a) The moving party continues to bear the legal and persuasive burden to establish that there is no genuine issue requiring a trial to resolve;

(b) The responding party continues to bear an evidentiary burden to establish that there is a genuine issue requiring a trial;

(c) Each party must “put their best foot forward”. Neither may rest on the allegations in their pleadings; and,

(d) The court is entitled to assume that the record before it contains the core substance of the evidence that the parties will present at trial.

See Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (C.A.) at para. 17; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 at paras. 26 and 32; and Penretail Management Ltd. v. 2380462 Ontario Inc. (o/a Bolton Health Centre), 2016 ONSC 600, at para. 10.

THE PLEADINGS

[18] Pleadings are important. They set the table for the litigation, define its boundaries and delineate the issues to be determined. Appellate authority is clear that it is fundamental to the litigation process that cases be decided within the boundaries of the pleadings. Decisions rendered beyond the four corners of the pleadings risk depriving a party of the opportunity to address the issue(s) in evidence. See Rodaro v. Royal Bank of Canada, (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 at para. 60 and Link v. Venture Steel, 2010 ONCA 144 at para. 35.

[19] At the same time, pleadings should generally be given a fair and liberal interpretation. See Link, as above, at para. 36 and, more generally, r. 1.04 of the Rules of Civil Procedure.

The Claim

[20] The Statement of Claim in this case was issued May 12, 2018. The plaintiff appears to have drafted it herself, without the assistance of legal counsel. Even liberally interpreted, the precise nature of the claim is difficult to discern.

[21] The Claim fails to articulate any particular relief sought. At para. 1 of the Claim, the plaintiff says, “I am suing for breach of trust and that my charter of rights have been violated.” At para. 2 she says, “I am suing for violation of my charter of rights, and that my reputation has been tarnished due to letters and verbal comments made by Carley Snooden, Ashley Mesick, Erin Burns, Stephen Martyn and Suzanne Howard-Peacock.”

[22] At no point does the plaintiff indicate precisely what it is that she wants from the court. I do note that the plaintiff has completed the notice portion at the front of the Claim to provide that if the defendants pay the plaintiff’s claim and $50,000,000 in costs, they may move to have the Claim dismissed. I am going to proceed, in the circumstances, on the basis that the plaintiff is claiming $50 million in damages for defamation, breach of trust and breach of her rights under the Charter of Rights and Freedoms.

[23] The plaintiff pleads that Carley Snooden (correctly spelled “Snodden”), Ashley Mesick (correctly spelled “Mesec”), Erin Burns, Stephen Martyn and Suzanne Howard-Peacock have each made written or oral comments about her that have tarnished her reputation and affected her in her work, place of worship and her personal life.

[24] The impugned utterances include:

(a) An oral statement purportedly made by Carley Snodden to “NW” to the effect that the plaintiff is unable to help NW with her son because of her previous involvement with NW’s daughter, giving the child 2x the recommended dose of Tylenol on one occasion, and that the plaintiff should not be left alone with children;

(b) An oral statement purportedly made by Ashley Mesec to ”NM” on January 12, 2018 to the effect that the plaintiff was not allowed around children;

(c) An oral statement purportedly made by Erin Burns to “JD” to the effect that the plaintiff is not allowed around children unsupervised and another to the effect that it was a “red flag” that the plaintiff did not have any children living with her; and,

(d) Letters from the Society, signed by Stephen Martyn and Suzanne Howard-Peacock, which contained “false facts”.

The Defence

[25] The defendants delivered a Defence on or about June 15, 2018. They essentially denied all of the plaintiff’s allegations.

[26] The defendants plead that the Charter does not apply, that they owed no duty of care to the plaintiff and that they did not defame her in any way.

[27] In the alternative, they advance the defences of justification, and qualified privilege. Moreover, they assert that the utterances complained of by the plaintiff are all truthful and were made without malice.

The Reply

[28] The plaintiff delivered a Reply on or about July 9, 2018. It essentially doubled down on the content of the Claim and added little new substance.

THE EVIDENCE

The Defendants’ Evidence

[29] The defendants filed a motion record in three parts. It is 941 pages in length. While there is an index, none of the documents are bookmarked or hyperlinked. I appreciate that all constituents – the court, counsel and parties – are relatively new to litigating over a digital platform. In terms of practice going forward, it is of enormous benefit to the court when the parties utilize either hyperlinks or bookmarks with the documents they file in order to make those documents reasonably accessible. It is a time-consuming and frustrating process to have to repeatedly scroll through a thousand pages looking for particular documents.

[30] At any rate, the defendants’ record includes the Affidavits of Stephen Martyn, Carley Snodden, Ashley Mesec, Erin Burns, Suzanne Howard-Peacock and Raya Sidhu.

Affidavit of Stephen Martyn

[31] Mr. Martyn is the Society’s Director of Service and has been in that role since 2015. He deposed that he received a “complaint letter” from the plaintiff on January 24, 2018. The plaintiff alleged that a number of Society workers, including Jennifer Budgewell, Ashley Mesec, Erin Burns and Carley Snodden had been making false statements about her. The false statements she referenced are similar to the ones set out in the Claim.

[32] Mr. Martyn replied to the plaintiff by letter dated February 8, 2018. The letter was co-signed by Ms. Howard-Peacock, who is a supervisor at the Society. The letter detailed the Society’s concerns with the plaintiff in a caregiving role to other people’s children. The expressed concerns included, but were not limited to the following:

(a) The Society had previously been involved with the plaintiff as a result of child protection concerns relating to the plaintiff’s own daughter between August 2006 and September 2008;

(b) Documented issues regarding the plaintiff’s developmental delay, online gambling, financial problems and excessive internet use;

(c) A “Kin Service Assessment” was conducted by the Society in 2015 with respect to the plaintiff’s ability to provide a permanent home for an infant. The assessment was not positive. The plaintiff’s adult daughter was interviewed as part of the process and voiced a concern that the plaintiff could benefit from anger management counselling. She said physical discipline was often used when she was a child;

(d) During the assessment period, the plaintiff was approved to supervise access between an infant and a biological parent. During the supervision she administered medication to the infant, but gave the child ten times the recommended dose;

(e) In 2016, the Society became involved with the plaintiff again, by way of a child protection investigation. The investigation was launched when the Society received a complaint from a male who said the plaintiff had given birth to his child. The complainant alleged that the plaintiff was denying him contact with the child and that he had concerns about her parenting capacity. Upon investigation, the Society determined that the plaintiff had not given birth to a child. The plaintiff asserted that the man was mistaking her for a friend who looked like her. In her January 24, 2018 complaint letter, the plaintiff asserted that the person who gave birth was her twin sister. There is no record of the plaintiff having a twin sister;

(f) Further concerns arose during the 2016 investigation. The Society obtained disclosure of medical records relating to the plaintiff from Toronto General Hospital, Princess Margaret Hospital and Toronto Rehab Hospital that reflect a history of suicide attempts including three attempts to overdose on medication and one attempt to cut her wrists; and,

(g) In 2017 the Society again became involved with the plaintiff when called to attend a domestic dispute at the plaintiff’s home. Neighbours heard a child screaming throughout the dispute and called the police. It became apparent that the child had witnessed a violent dispute. Even though the plaintiff was not directly involved in the dispute, she had failed to contact the police or taken other steps to protect the child.

[33] The plaintiff responded to Mr. Martyn’s letter by letter dated February 13, 2018. She advised that she has never been charged or convicted of any criminal offences that have anything to do with children. In the result, she sought apologies from the Society addressed to a list of people she claimed were affected by the Society’s words. They included a number of parents of vulnerable children, the local police chief, an OPP inspector and the minister of the church attended by the plaintiff.

[34] Mr. Martyn responded again to the plaintiff, by letter dated February 23, 2018. He offered an opportunity to meet with the plaintiff for further discussion, which she did not respond to.

[35] Mr. Martyn says he did not disclose any of the details surrounding the Society’s concerns about the plaintiff’s caregiving capacity to anyone outside of the Society, save for the plaintiff herself.

Affidavit of Carley Snodden

[36] Ms. Snodden is a child welfare worker with the Society. She deposed that she was involved with a woman named NW in 2017. The plaintiff, she said, applied to care for NW’s child. A kinship assessment was conducted and the plaintiff was denied a caregiving role.

[37] Ms. Snodden denied having any discussion with NW about the plaintiff, specifically about her caregiving capacity.

Affidavit of Ashley Mesec

[38] Ms. Mesec is a protection worker with the Society. She deposed that she has been involved with a woman named NM and her son since 2017. NM and the child’s father had both been arrested by the police as a result of a domestic dispute that occurred at the plaintiff’s residence. The Society was looking for a placement for the child. The plaintiff was not an approved caregiver.

[39] Ms. Mesec deposed that she met with NM on January 12, 2018 and discussed concerns about NM’s parenting plan. She advised NM that the child was not to be left alone with the plaintiff because the plaintiff was not an approved caregiver. She did not elaborate further given confidentiality concerns as to the Society’s position with respect to the plaintiff.

[40] She denied discussing the plaintiff’s history with NM and denied that she suggested that the plaintiff was not allowed to be around children altogether.

[41] She said she received a voicemail message from the plaintiff on January 15, 2018 to the effect that the plaintiff had been told by someone that Ms. Mesec said she was not permitted to be around that person’s child. Ms. Mesec said she returned the plaintiff’s call but was unsuccessful in reaching her.

[42] Ms. Mesec deposed that she has had no other dealings with the plaintiff.

Affidavit of Erin Burns

[43] Ms. Burns is a child welfare worker with the Society. She deposed that, in that capacity, she became involved, in 2017, with clients named JD and ME.

[44] According to Ms. Burns, she received a phone call from JD on January 16, 2018 who inquired about the plaintiff. The plaintiff had been babysitting her children for her and ME. JD told her, she said, that she had been informed by the plaintiff that the Society took the position that the plaintiff was not to be left alone in a caregiving role to children.

[45] Ms. Burns said she had not heard of the plaintiff prior to JD’s call. She reviewed the Society’s records and spoke to Ms. Mesec who advised her that the plaintiff was not an approved caregiver.

[46] On January 18, 2018 Ms. Burns met with JD and ME and advised them that she had looked into JD’s inquiry about the plaintiff. She had determined that the plaintiff was not an approved caregiver. She told JD and ME that they should not leave their children alone in the plaintiff’s care, but there was no reason why the plaintiff could not attend their home or be involved with their children. She did not provide further details or information about the Society’s concerns with respect to the plaintiff.

[47] Ms. Burns deposed that she had no further involvement with the plaintiff.

Affidavit of Suzanne Howard-Peacock

[48] Ms. Howard-Peacock is a service supervisor for the Society’s prenatal and early health team. She was the supervisor of Ms. Snodden and Ms. Mesec at the relevant times.

[49] Ms. Howard-Peackock deposed that she has been working with the Society since 2015 and has had involvement with the plaintiff throughout that time. She reviewed the Society’s records relating to the plaintiff in order to make her affidavit.

[50] She said that the Society’s involvement with the plaintiff dates back to 2006 when the plaintiff moved with her daughter from Sudbury to Peterborough. The plaintiff had been involved with the Sudbury CAS prior to moving to Peterborough.

[51] The Society’s records reflect that the plaintiff has heart problems and suffers from sleep apnea. There were reported concerns about online gambling, financial problems, and not properly addressing her daughter’s many medical needs.

[52] In 2009, the Society received information about the plaintiff from Sick Kids Hospital that required investigation.

[53] In 2012 the Society received information that the plaintiff had twisted her daughter’s hand during an argument. The child wanted to stay with a different family member and the plaintiff was agreeable.

[54] In November 2014, Ms. Howard-Peacock became involved with NW and DS. They asked that the plaintiff be assessed for kinship. They wanted her to care for their baby. An assessment was undertaken and completed by January 29, 2015. It concluded that the plaintiff was not an appropriate service provider. Amongst other reasons, it was determined that the plaintiff could not provide long-term permanency, she had a history with the Society, and she was in poor health.

[55] During the assessment process, the plaintiff’s home was being utilized to facilitate access visits between the baby and NW. It was determined that NW was failing to show up for visits. The plaintiff failed to document those failures and report them to the Society. During one occasion when the baby was with the plaintiff, the plaintiff administered an overdose of Tylenol. She had not even obtained the Society’s approval to administer Tylenol in the first place.

[56] Ms. Howard-Peacock further deposed that the Society has concerns with the plaintiff’s cognitive abilities, a chronic pain condition and the plaintiff’s ability to care for a child overnight.

[57] She denied disclosing information about the plaintiff’s involvement with the Society to anyone, other than while executing her employment duties, and denied that she has told anyone that the plaintiff is not to be a caregiver to children.

Affidavit of Raya Sidhu

[58] Ms. Sidhu is a lawyer for the Society. She deposed that the plaintiff was examined for discovery on May 3, 2019. Subsequently, and by way of answers to undertakings given during the examination, the Society received the clinical notes and records of the plaintiff’s doctors, Dr. Heather McLaughlin and Dr. Dieter Poenn.

[59] The medical records received reveal that the plaintiff’s health history is significant for congenital heart disease, hypothyroidism, migraine headaches, depression, likely bipolar 2 rapid cycling, chronic pain and sleep apnea.

[60] A record dated September 6, 2019 indicated that the plaintiff had consumed 70 Tylenol 4’s in the span of six weeks. A May 24, 2019 record revealed that the plaintiff was prescribed Toperimate to address hallucinations.

[61] On February 8, 2019 the plaintiff participated in a psychiatric assessment. The assessment noted that she had a history significant for rapid cycling bipolar II, with a history of hypomaniac symptoms, PTSD, severe tension-migraine headaches, multiple overdoses, with past diagnoses of scoliosis, migraines and fibromyalgia. A gambling addiction was also noted.

[62] During her examination for discovery, the plaintiff admitted that she has heart problems, back problems, fibromyalgia and migraines. She said that her migraines last two hours to two weeks and are completely debilitating.

The Plaintiff’s Evidence

[63] The plaintiff filed two briefs in relation to the summary judgment motion. The first was a motion record containing the following:

(a) A Notice of Motion seeking the following relief:

Notice of what has been happening in the said case including letter of complaint to the Law Society regarding Chester Wydrzynski (LSO#49701H) with the Law Society’s Response.

(b) A copy of what appears to be a letter of complaint written by the plaintiff to the Law Society of Ontario;

(c) The plaintiff’s affidavit sworn June 21, 2021;

(d) A copy of the Statement of Claim;

(e) Unsworn written statements of NW, NM, JD and ME;

(f) A criminal record check with respect to the plaintiff; and,

(g) Copies of a number of certificates, including the plaintiff’s high school diploma; an early childhood education diploma with a transcript of grades; a child day care management diploma with a transcript of grades; a number of certificates of completion of programs run by the Elizabeth Fry Society, including self-esteem, anger solutions and making healthy relationship choices.

[64] The second brief filed by the plaintiff included a factum and transcripts of cross-examinations of the parties.

[65] The plaintiff deposed in her affidavit sworn June 21, 2021 that Ms. Snodden told NW that the plaintiff was not able to provide care for NW’s son because of an incident where the plaintiff administered 10x the recommended dose of Tylenol to NW’s daughter. She says this was false because the amount administered was only 2x the recommended dose.

[66] She further deposed that Ms. Mesec told NM that the plaintiff was not allowed around children and Ms. Burns told JD and ME that she was not allowed around children unsupervised. Moreover, Ms. Burns, she said, told JD and ME that it was a red flag that the plaintiff had no children residing with her.

THE PARTIES’ POSITIONS

[67] The defendants assert that the plaintiff has failed to raise a genuine issue that requires a trial to resolve. They advance several arguments in support of that general assertion.

[68] First, they point to s. 37 of the CYFSA, which provides that no action lies against an employee of a Children’s Aid Society for any act done in good faith in the execution of the person’s duty. They submit that this provision is a complete defence to the plaintiff’s claim.

[69] Second, they deny that their relationship with the plaintiff was one of trust.

[70] Third, they argue that the plaintiff has failed to particularize her Charter claim and has further failed to adduce any evidence to support a Charter breach.

[71] Finally, they assert that the plaintiff’s defamation claim does not raise a genuine issue requiring a trial to resolve because:

(a) The plaintiff has tendered no evidence to establish that the Society’s letters of February 8 and 23, 2018 were communicated to anyone beyond the plaintiff;

(b) The defendants had a statutory duty to make the impugned utterances to NW, NM JD and ME and they are protected by the defence of qualified privilege; and,

(c) The impugned utterances were justified (i.e. true).

[72] The plaintiff’s position, unsurprisingly, is the opposite of that of the Society. She argues that there are triable issues here. She asserts that, as a private investigator, she has ways of obtaining information from people involved in this case. She has obtained statements, she says, though unsworn, from a number of people, all of whom are willing to come to court to testify.

[73] The plaintiff says that any suggestion that she is not permitted to be around children is false and she points to a clear criminal record check as evidence to support the falsity. She submits that false allegations from people in authority should not be allowed. There are, she says, lots of genuine issues that require a trial to sort out.

[74] The plaintiff, I note, advanced her own motion alleging that she never received a sworn affidavit of documents. During the course of argument of the motion, it became apparent that she had indeed received such a statement. She raised a concern about the fact that the affidavit of documents she first received was unsworn and she made a complaint to the Law Society about that fact. In all of the circumstances, it is unnecessary to further address the plaintiff’s motion.

DISCUSSION

[75] I intend to proceed with an analysis of the issues raised on the motion in the following order. First, I will consider the defendants’ claim to immunity by virtue of s. 37(1) of the CYFSA. Even though, as will be seen, I consider that section a complete defence to the plaintiff’s claims, I will go on to give more specific consideration to her claims based on the assertions of breach of trust and breach of her Charter rights. I will turn, finally, to her defamation-based claims.

Issue One: The Application of Section 37(1) of the CYFSA

[76] Section 37(1) provides, specifically, as follows:

No action shall be instituted against a member of the board of directors or an officer or employee of a society for any act done in good faith in the execution or intended execution of the person’s duty or for an alleged neglect or default in good faith in the execution of that duty.

[77] Section 37(1) is a recent iteration of s. 15(6) of precursor legislation, the Child and Family Services Act, R.S.O. 1990, c. C.11. The Court of Appeal confirmed in H.A.G. v. Family and Children’s Services Niagara, 2017 ONCA 861, at para. 4, that the immunity provision applies, absent evidence that the employee in issue acted other than in good faith in the execution of his or her duties under the Act.

[78] In this instance, I am satisfied that there were ample reasons to support the position the Society took with respect to the plaintiff’s request to act in a caregiving role to at-risk children. Their position appears to have been entirely reasonable. The reasonableness of the position provides circumstantial evidence that employee’s actions taken further to that position were taken in good faith. At any rate, and most importantly, the Claim does not allege that the defendants, or any of them, acted in bad faith and no evidence has been adduced on this motion to support a conclusion that any of them acted other than in good faith.

[79] In my view, the immunity provision clearly applies. As such, there is no genuine issue for trial in relation to any of the claims advanced by the defendant.

[80] While this conclusion is entirely dispositive of the motion, there are other reasons to support the decision to dismiss the plaintiff’s claim. In the circumstances of this case, I am of the view that there is value to reviewing those reasons. I will accordingly proceed to a more detailed examination of the plaintiff’s claims of breach of trust, infringement of her Charter rights and defamation.

Issue Two: The Alleged Breach of Trust

[81] The plaintiff has failed to particularize the breach of trust claim in her pleadings, so it is not entirely clear in what way she says a duty of trust arose and in what way it was breached. It is generally not the court’s responsibility to fill in the blanks of the litigants’ arguments, but having regard to the plaintiff’s self-represented status, I will do my best to explore what she may be trying to get at with her breach of trust allegation.

[82] In my view, the plaintiff’s breach of trust assertion is capable of a number of interpretations. The following three come to mind: (1) breach of a fiduciary duty; (2) breach of a duty of care; or, (3) breach of a duty of confidentiality. I will examine each in turn.

(1) Fiduciary Duty

[83] A fiduciary duty is a duty of trust. It requires that the fiduciary act with absolute loyalty towards the beneficiary of the trust. See Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, at para. 22.

[84] The Court of Appeal recently summarized the essential elements of a fiduciary relationship in Plate v. Atlas Copco Canada Inc., 2019 ONCA 196. Former Associate Chief Justice Hoy observed, at para. 65, that a fiduciary relationship arises where:

(a) there is an undertaking by the fiduciary to act in the best interests of the beneficiary;

(b) the beneficiary is vulnerable to the fiduciary’s exercise of discretion or control; and,

(c) an identifiable legal or practical interest of the beneficiary stands to be adversely affected by the fiduciary’s exercise of discretion of or control.

See also Elder Advocates, at para. 27.

[85] There are certain traditional relationships where fiduciary duties are implied, such as trustee-beneficiary, agent-principal, lawyer-client and parent-child. Other cases, like this one, have to be determined contextually.

[86] In the absence of any arguments on point, it is very difficult to ascertain the basis upon which a fiduciary duty could be said to arise in the relationship between the plaintiff and the Society.

[87] The Society is a creature of statute, specifically, the CYFSA. Section 1 of that Act describes its paramount purpose as the promotion of the best interests, protection and well-being of children. It is difficult, if not impossible, to square that purpose with a fiduciary duty owed by the Society to the plaintiff in any of her capacities as a parent, family member or potential service provider.

[88] It would, in my view, be antithetical to the duties and responsibilities that the Society owes to the children within its purview, to hold that the Society owes an absolute duty of loyalty to the plaintiff.

[89] It simply cannot be that the Society stood, at any time, in a position of trust in relation to the plaintiff.

(2) Duty of Care

[90] A duty of care is a legal obligation that imposes a standard of care on a party while performing acts that could foreseeably harm another. The basic idea is that everyone must take reasonable care to avoid acts or omissions which they can reasonably foresee as likely to harm their neighbour. See Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562 (H.L.).

[91] Whether a duty of care arises in any particular relationship is generally assessed through an examination of the issues of reasonable foreseeability and proximity. See Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.) and Edwards v Law Society of Upper Canada, 2001 SCC 80. Even where a duty of care prima facie arises on an assessment of these factors, there may be compelling policy reasons to refuse to impose such a duty. Indeed, that is the case here.

[92] Again, the Society is a creature of statute. Its principal duties are defined by statute. They are set out at para. 35(1) of the CYFSA, which mandates Children’s Aid Societies to:

(a) investigate allegations or evidence that children may be in need of protection;

(b) protect children where necessary;

(c) provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children;

(d) provide care for children assigned or committed to its care under the Act;

(e) supervise children assigned to its supervision under the Act; and,

(f) place children for adoption under Part VIII (Adoption and Adoption Licensing).

[93] What is readily apparent from a review of s. 35(1) is that the Society’s statutory duties are all directed at the protection and well-being of children. Their core duties, in other words, are owed to the children they are mandated to protect. These duties have been described in the caselaw as the Society’s primary and paramount duties. See Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38.

[94] As a parent involved in prior child protection investigations and now as a party seeking to be considered for caregiving placement, the plaintiff may well be able to make out a prima facie duty of care on an examination of the issues of foreseeability and proximity. But appellate jurisprudence is clear. There can be no duty of care owed to the plaintiff because of the clear conflict that would arise between the Society’s paramount duty to children and any concurrent duty to parents or caregivers. See Syl Apps, as above and H.A.G. v. Family and Children’s Services Niagara, as above, at para. 2.

(3) Duty of Confidentiality

[95] The plaintiff did not frame her claim as a breach of confidentiality, nor did either party make submissions on this issue, again making it challenging to analyze. The general thrust of the plaintiff’s claim is that the Society and its employees have defamed her. There are threads throughout her materials and submissions, however, to the effect that the Society has used confidential information about her in the process of defaming her.

[96] The Society has come into possession of records in which the plaintiff may well have a reasonable expectation of privacy through a number of sources. They have created and obtained records during child protections investigations involving her and her daughter. They have also created and obtained records through kinship assessments conducted as a result of the plaintiff’s expressed interest in becoming involved in a caretaking role for children.

[97] Sections 285-332 of the CYFSA deal with the collection, use and disclosure of personal information by service providers. Significantly,

(a) Section 286 provides that the Society may not disclose personal information about an individual unless it has the individual’s consent or the disclosure is necessary for a lawful purpose;

(b) Section 287 provides that, for the purpose of providing a service, the Society may not disclose more personal information than is reasonably necessary to provide that service;

(c) Section 292(1)(g) provides that the Society may, without the consent of the individual, disclose personal information about him or her that has been collected for the purpose of providing a service, if the Society believes on reasonable grounds that the disclosure is necessary to assess, reduce or eliminate a risk of serious harm to a person or group of persons; and,

(d) Section 292(3) provides that the Society may disclose personal information that has been collected for the purpose of providing a service if the information is reasonably necessary for a prescribed purpose related to a society’s functions under subsection 35(1), which I have set out above.

[98] The plaintiff has not detailed the precise disclosures of confidential information that may amount to what she described as a “breach of trust”. They appear generally to amount to statements made to third parties to the effect that the plaintiff is prohibited from caring for children.

[99] The plaintiff, as I noted, filed the unsworn written statements of NW, NM, JD and ME.

[100] NW described how the plaintiff had assisted her with the care of her first child, under the supervision of the Society. The plaintiff’s caregiving role ended, she said, as a result of NW’s failure to attend the plaintiff’s residence as scheduled and because the plaintiff administered a double dose of Tylenol to the baby after misreading the instructions. When NW had a second child, a new social worker was assigned by the Society, namely Ms. Snodden. NW wrote that Ms. Snodden advised her that the plaintiff was not an option as a care provider because of the Tylenol issue and “other issues that I had no idea about”. No details were otherwise provided.

[101] NM described an occasion in early 2018 when the plaintiff drove her to a scheduled appointment with the Society in relation to NM’s son. NM wrote that “Ashley” told her that the plaintiff was not allowed around children but could not tell her anything else.

[102] JD and ME described an occasion when the plaintiff attended their residence, “upset about information she had just found out in regard to her being left alone with children”. They decided to make their own inquiries and spoke to their CAS worker, Ms. Burns. They wrote that they were told, over the phone, that it was recommended that they not use the plaintiff as a caregiver until Ms. Burns could look into the matter. Several days later, Ms. Burns advised them that the plaintiff was not permitted to act in a caregiving role and was to be supervised at all times. Ms. Burns would not tell them why, even though they told her they had the plaintiff’s consent to obtain the information.

[103] In my view, none of the witness statements filed by the plaintiff support an assertion that the defendants, or any of them, breached any duty of confidence owed to the plaintiff. Indeed, it does not appear to me that any of the witness statements support an assertion that personal information about the plaintiff was disclosed at all. To the extent that the plaintiff became the topic of any of the discussions referred to by NW, NM, JD and ME, it was clearly for the purpose of carrying out the Society’s mandate as set out at s. 35(1) of the CYFSA.

[104] I conclude, in the result, that there is no evidence in the record that would raise a genuine issue requiring a trial to resolve in relation to any alleged breach of trust. The evidence clearly supports the conclusions that there was no relationship of trust between the plaintiff and defendants, the defendants did not owe the plaintiff a duty of care, and the defendants did not breach any common law or statutory duty of confidentiality owed to the plaintiff.

Issue Three: The Alleged Charter Breaches

[105] Like the assertion of a breach of trust, the plaintiff has failed to particularize the alleged breach(es) of her rights under the Charter of Rights and Freedoms.

[106] In my view, this aspect of the plaintiff’s claim cannot succeed. It does not raise a genuine issue that requires a trial to resolve.

[107] The Charter applies to governments at all levels – federal, provincial and municipal. It does not apply to private relationships. Section 34(5) of the CYFSA provides that Children’s Aid Societies, their members, officers, employees and agents are not agents of the Crown in right of Ontario. Nevertheless, the Supreme Court has recognized that Children’s Aid Societies are state actors and are subject to compliance with the Charter. See, for instance, Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48.

[108] The onus of establishing a Charter breach is generally on the party asserting the breach. In this instance, the plaintiff has not only failed to identify the Charter right(s) engaged, but she has failed to tender any evidence to support a breach.

[109] If this were a case where a child of the plaintiff had been apprehended by the Society, I could readily appreciate which Charter provisions are implicated. But the same cannot be said when the plaintiff’s current capacity is as a person who wishes to provide services to the Society. The Society is not obliged at law to approve or use any particular service provider. The plaintiff does not have a right, whether constitutional or otherwise, to be a service provider to the Society.

[110] In my view, none of the plaintiff’s Charter rights are engaged in the circumstances of this case. And as I noted, even if engaged, there is a complete absence of evidence of breach.

Issue Four: The Defamation-based Claims

[111] At the heart of the Claim are the allegations of defamation.

[112] Reading the Claim generously, I understand the plaintiff’s position to be that the following utterances were defamatory:

(a) The Society’s letters to her of February 8 and 23, 2018;

(b) Ms. Snodden’s statement to NW to the effect that the plaintiff was not an option as a care provider because of the Tylenol issue and other undisclosed issues;

(c) Ms. Mesec’s statement to NM to the effect that the plaintiff was not allowed around children; and,

(d) Ms. Burns statement to JD and ME to the effect that the plaintiff was not permitted to act in a caregiving role and was to be supervised at all times.

[113] The essential elements of the tort of defamation were described by the Supreme Court in Grant v. Torstar, 2009 SCC 61, at para. 28:

A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed…The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

[114] I will accept, for the purposes of this motion, that all of the utterances impugned by the plaintiff are defamatory in nature. All tend to lower the plaintiff’s reputation in the eyes of a reasonable person.

[115] I further accept that the impugned utterances did indeed refer to the plaintiff. I think they clearly did.

[116] I am not prepared to accept, however, that all of the impugned utterances were communicated to at least one person other than the plaintiff.

[117] The letters authored by Mr. Martyn and counter-signed by Ms. Howard-Peacock and sent to the plaintiff on February 8 and 23, 2018 were addressed only to her. No evidence has been adduced to support a conclusion that the Society communicated those letters, or the contents of the letters, to anyone but her. In fact, the plaintiff confirmed, when cross-examined on her affidavit filed in support of this motion, that she had no evidence that the letters were sent to anyone other than her.

[118] With respect to the communications set out in the letters of February 8 and 23, 2018 there is no genuine issue requiring a trial to resolve. Absent evidence that the letters were communicated to at least one person in addition to the plaintiff, she is unable to satisfy the essential elements of the tort of defamation in relation to those letters.

[119] That leaves the utterances to NW, NM, JD and ME.

[120] The plaintiff tendered evidence that certain utterances were made by some of the defendants to NW, NM, JD and ME. The evidence came in the form of the plaintiff’s own affidavit and the unsworn statements of the purported recipients. The plaintiff’s evidence is entirely hearsay. She did not hear the impugned utterances herself but rather relies on the written statements provided to her from her witnesses. The witnesses could not be cross-examined because they did not file sworn statements.

[121] There are, in the circumstances, grounds to put less weight on the plaintiff’s evidence surrounding the impugned statements than would be the case if the plaintiff had filed sworn evidence from her witnesses.

[122] Having said that, I am prepared to accept, for the purposes of this motion, that the impugned utterances were made and that they were communicated to persons other than the plaintiff. On that basis, the plaintiff appears to have established a prima facie case of defamation. The onus turns, therefore, to the defendants to make out a valid defence.

[123] The defendants, as I noted earlier, offer two defences:

(a) Justification; and

(b) Qualified privilege.

[124] The defence of justification amounts to an assertion that the impugned statements, while unflattering, are substantially true. See Grant v. Torstar, as above, at para. 33. See also Hampton Securites Ltd. v. Dean, 2018 ONSC 101 at para. 154, affirmed 2018 ONCA 901, leave to appeal to the Supreme Court dismissed [2019] S.C.C.A. No. 34.

[125] The impugned statements here do not reflect assertions of fact but rather the position of the Society:

• the plaintiff was not an option as a care provider;

• the plaintiff was not allowed to be unsupervised around children; and,

• the plaintiff was not permitted to act in a caregiving role.

[126] The Society workers were all consistent in their messaging: the plaintiff was not approved in a caregiving role for children subject to the Society’s supervision. That was true.

[127] To the extent that the plaintiff interpreted the Society’s messaging as including the suggestion that she was not to be around children as a result of prior criminal wrongdoing, she was mistaken. None of the defendants ever suggested that the plaintiff could not lawfully be around children. They expressed only that she was not an approved caregiver to children who were involved in one way or another with the Society.

[128] The plaintiff asserts that Ms. Mesec told NM that the she was not allowed around children at all, but I do not accept that assertion. In view of NM’s written statement and the sworn evidence of Ms. Mesec, I am satisfied that Ms. Mesec communicated only that the plaintiff was not allowed to act in the role of a caregiver to NM’s son on her own. There is no credible and reliable evidence to the contrary. Indeed, there is arguably no evidence to the contrary at all.

[129] In my view, the defence of justification is made out.

[130] I come to a similar conclusion with respect to the defence of qualified privilege.

[131] As the Court of Appeal instructed in RTC Engineering Consultants Ltd. v. Ontario (Ministry of the Solicitor General and Correctional Services), 2002 CanLII 14179 (ON CA), [2002] O.J. No. 1001, the defence of qualified privilege attaches to the occasion when a defamatory statement is made, not to the statement itself. In other words, a person may defame another, without attracting liability, provided the occasion is one of qualified privilege.

[132] What amounts to an occasion of qualified privilege was examined by the Supreme Court in Botiuk v. Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] 3 S.C.R. 3, where, at para. 78, Cory J. adopted the following explanation of Lord Atkinson in Adam v. Ward, [1917] A.C. 309 (H.L.) at p. 334:

. . . a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.

[133] In the instant case, it is axiomatic in my view that the Society has a duty to communicate their position on issues regarding children’s best interests to those families involved with them. The Society is mandated by statute to protect children where necessary, to provide guidance to families for protecting children and to provide care for children assigned or committed to its care.

[134] The evidentiary record satisfies me that the Society conducted a thorough assessment of the plaintiff’s ability to provide care to children subject to the Society’s supervision. They concluded, reasonably in my view, that she was not an appropriate person to provide care to children in the CAS system. They had a duty, pursuant to the CYFSA, to communicate that position where relevant, as they did to NW, NM, JD and ME.

[135] In my view, NW, NM, JD and ME had a corresponding duty to receive the information conveyed to them by the defendants. In each case they – and more particularly their children – were “clients” of the Society. As parents, they had a moral and legal duty to consider the best interest of their children, just as the Society did. That duty included the receipt of information from the Society regarding approved – or disapproved – caregivers.

[136] The defence of qualified privilege is not absolute. It may be lost if it is established that the dominant motive for the communication was malice or if the limits of the duty to communicate were exceeded.

[137] The evidentiary record does not support a conclusion that the impugned communications were maliciously motivated. There is, indeed, no evidence that they were. Moreover, the communications were brief and involved no more than expressing the Society’s “bottom line” position. Each of NW, NM, JD and ME specifically indicated that the workers they were involved with did not delve into the facts supporting their position.

[138] I am satisfied, in the result, that the defences of justification and qualified privilege are made out on the evidentiary record. Each are a complete defence to the plaintiffs’ defamation claim. There is no genuine issue requiring a trial in relation to those claims.

CONCLUSIONS

[139] For the reasons expressed, I have reached the following conclusions:

(a) The defendants are each immune against the plaintiff’s claims by virtue of s. 37(1) of the CYFSA;

(b) In any event:

(i) The evidence does not support a conclusion that there has been a breach of trust, whether expressed as a breach of a fiduciary duty, a breach of a duty of care, or a breach of a duty of confidentiality;

(ii) The plaintiff has failed to identify which of her rights under the Charter was allegedly infringed and, in any event, has failed to adduce any evidence capable of establishing such a breach on a balance of probabilities;

(iii) The plaintiff has failed to establish that she was defamed by the Society’s letters of February 8 and 23, 2018 because she failed to adduce any evidence that the letters were communicated to anyone but her. Indeed, she conceded on cross-examination that she has no such evidence; and,

(iv) While I am satisfied, for the purposes of this motion, that the plaintiff has made out a prima facie case of defamation with respect to the impugned communications made to NW, NM, JD and ME, I am satisfied that the defences of justification and qualified privilege apply and operate as complete defences to the plaintiff’s claim in defamation.

[140] In the result, I am satisfied that there are no genuine issues requiring a trial in this litigation and the plaintiff’s claim is accordingly dismissed. I am able to reach this conclusion without having to resort to the court’s enhanced fact-finding powers, as provided for in r. 20.04(2.1).

[141] I encourage the parties to agree on the issue of costs. If they are unable to agree, they may make written submissions on the issue, not to exceed 2 pages in length (not including costs outlines). Their submissions should be served and filed on a 14-day turnaround. The defendants’ submissions are to be served and filed by November 23, 2021 and the plaintiff’s by December 7, 2021.

C. Boswell J.

Released: November 9, 2021