COURT FILE NO.: CV-16-70492 DATE: 2022/04/14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M. E.-H. and M. A.-R., Plaintiffs AND The Children’s Aid Society of Ottawa, The Children’s Aid Society of the Region of Peel, Kristine Pearce, and Dr. Louise Murray, Defendants

BEFORE: Madam Justice Robyn M. Ryan Bell

COUNSEL: M. E.-H., self-represented, responding party Giovanna Asaro, for the moving parties, The Children’s Aid Society of Ottawa and Kristine Pearce

HEARD: March 30, 2022

Endorsement on Rule 21 motion

Overview

[1] The Children’s Aid Society of Ottawa and Kristine Pearce (together, the “Ottawa CAS defendants”) move under r. 21 of the Rules of Civil Procedure to dismiss the action and to strike the statement of claim. The Ottawa CAS defendants allege that the action is an abuse of process because it is an impermissible collateral attack on existing court orders. Alternatively, they contend that the statement of claim discloses no reasonable cause of action. The action is framed in negligence, alleges breaches under the Canadian Charter of Rights and Freedoms, misfeasance in public office, breach of confidentiality, infliction of nervous shock, and defamation, and also asserts claims for intentional wrongful conduct, breach of statutory duty, abuse of power, bad faith and malice.

[2] Mr. E.-H. submits that it is not plain and obvious that his action cannot succeed and that it is premature for the court, at this stage, to determine whether the Ottawa CAS defendants owed a duty of care to him. He also asserts that the motion was not brought “promptly” as required under r. 21.02 of the Rules of Civil Procedure. In the event the court finds deficiencies in the statement of claim, Mr. E.-H. asks that he be provided with an opportunity to amend his pleading.

[3] For the following reasons, I grant the Ottawa CAS defendants’ motion and dismiss the action on the basis that it is an abuse of the process of the court. The statement of claim also does not disclose a reasonable cause of action.

Apprehension of the children and the protection application

[4] On November 4, 2014, the plaintiffs’ children were apprehended by warrant based on concerns reported by the Ottawa Police Services Board and the Children’s Hospital of Eastern Ontario. Those reported concerns included domestic violence and physical abuse of the children. The children were apprehended in Brampton, at the home of the paternal grandparents.

[5] A child protection application was initiated on November 10, 2014 under the Child and Family Services Act.

[6] Mr. E.-H. was a named respondent in the protection application. He delivered responding materials and made submissions in respect of the protection issues.

[7] On November 10, 2014, on motion of the Children’s Aid Society of the Region of Peel, the court ordered the children be placed in the temporary care and custody of the Peel CAS on a without prejudice basis and transferred the jurisdiction of the protection application to Ottawa.

[8] On December 9, 2014, the Ottawa CAS sought an order placing the children in the temporary care and custody of their parents on strict conditions and supervision by the Ottawa CAS for a six-month period. The protection application was amended to reflect the order sought.

[9] On December 11, 2014, Toscano Roccamo J. ordered the children be placed in the care of their parents on a without prejudice basis subject to the supervision of the Ottawa CAS and on detailed terms and conditions.

[10] On January 20, 2015, Mr. E.-H. filed an affidavit in the protection application, in which he alleged that the Ottawa CAS defendants had engaged in misconduct. Mr. E.-H. alleged that the Ottawa CAS defendants had threatened to take the children away, that Ms. Pearce was “eager” to take the children away, and that Ms. Pearce swore a false and misleading affidavit to obtain the warrant to apprehend. Substantially the same allegations are made by Mr. E.-H. in this action.

[11] Mr. E.-H.’s allegations of misconduct against the Ottawa CAS defendants were not accepted by the court and the children remained under the court-ordered supervision of the Ottawa CAS, with Mr. E.-H. and his spouse to comply with specified conditions to address the identified child protection concerns.

[12] On April 20, 2015, based on Mr. E.-H. and his spouse’s compliance with the court-ordered terms of supervision, Blishen J. granted the Ottawa CAS leave to withdraw the protection application.

Litigation History

[13] Mr. E.-H. and his spouse commenced this action in December 2016. At that time and until July 2018, Mr. E.-H. was represented by counsel. The Ottawa CAS defendants delivered their statement of defence in April 2018.

[14] The action remains at the pleadings stage. Affidavits of documents have not been delivered.

[15] The record discloses that, on more than one occasion, the Ottawa CAS defendants invited Mr. E.-H. to withdraw his action and, failing withdrawal, to cooperate in scheduling a motion to strike the claim and/or to dismiss the action.

[16] In August 2021, the Ottawa CAS defendants requested a case conference to set a date for their r. 21 motion. The March 30, 2022 hearing date was scheduled at the January 21, 2022 case conference before Associate Justice Fortier.

The Statement of Claim

[17] In his action, Mr. E.-H. seeks damages of $1,000,000 against the Ottawa CAS defendants for “abuse of power, bad faith, malice, infliction of nervous shock, intentional wrongful conduct, defamation of character, breach of confidentiality, breach of statutory duty and breach of Charter Rights.” Mr. E.-H. seeks additional damages in the amount of $1,000,000 against the Ottawa CAS for negligence and damages in the amount of $1,000,000 against Ms. Pearce for misfeasance in public office.

[18] The statement of claim includes the following summary at para. 2:

On November 4, 2014, the Plaintiffs’ children were apprehended by the Children’s Aid Society of Ottawa in collaboration with the Children’s Aid Society of the Region of Peel while sleeping at their paternal grand-parents residence located in Brampton. The apprehension order was obtained as a result of false allegations made by Kristine Pearce, a Children’s Aid Society of Ottawa intake caseworker. These allegations are particularized at paragraph 60.

[19] Paragraph 60 of the statement of claim alleges that Ms. Pearce “deliberately engaged in unlawful conduct in her capacity as public officer, knowing that the conduct was unlawful and was likely to cause harm to [the plaintiffs].” The particulars of such conduct are alleged to include:

a) She provided false and misleading information to the Justice of the Peace and the [Peel CAS]… b) She made false statements under oath… c) She failed or refused to conduct a proper investigation before initiating and continuing Child Protection proceedings against [the plaintiffs]; d) She refused or failed to halt or withdraw the Child Protection proceedings or close the file in a timely manner; e) She coached Dr. Murray to provide a report that would provide a pretext for an emergency apprehension in the absence of any emergency; f) She breached or condoned a breach of privacy of [the plaintiffs]; g) Kristine [Pearce] and the [Ottawa CAS] failed to follow Child Protection Standards in Ontario…

Motion to be made “promptly”

[20] Rule 21.02 provides that a motion under r. 21.01 “shall be made promptly and a failure to do so may be taken into account by the court in awarding costs.” Mr. E.-H. takes the position that the Ottawa CAS defendants’ motion has not been brought promptly and should not be permitted to proceed.

[21] In Fleet Street Financial Corp. v. Levinson, Rouleau J., as he then was, concluded that r. 21.02 should be read as requiring that a r. 21.01 motion be brought promptly, observing that,

[w]hile rule 21.02 goes on to state that failure to do so may be taken into account in awarding costs, this latter part of the rule does not limit the generality of the first part. The obligation to act promptly is clear and the failure to bring a rule 21.01 motion promptly can, in the appropriate circumstances, be the basis for the judge exercising his discretion pursuant to rule 21.01 not to grant the relief sought.

[22] As Rouleau J. noted in Fleet Street Financial, the requirement to act promptly and avoid delay is in keeping with the general purpose of case management. The requirement to act promptly in bringing a r. 21.01 motion is also consistent with the goals of reducing costs in litigation, facilitating early resolution of matters and bringing cases to an expeditious and just determination: r. 1.04; Paterson v. HMQ Ontario; Abrahams v. Attorney General of Ontario.

[23] Delay does not, however, act as a bar to any and all r. 21.01 motions. Different considerations may apply where the motion will effectively result in the claim being dismissed or the question of liability being finally determined. I also agree with Vermette J. in Abrahams, that delay cannot be determinative in a r. 21.01 motion that is based on an abuse of the court’s process: “[t]he fact that the defendants may not have brought their Rule 21 motion sufficiently promptly is not a proper justification to allow an abuse of the court’s process to continue.”

[24] This case remains at the pleadings stage. The Ottawa CAS defendants invited Mr. E.-H. to withdraw his action. They sought his cooperation in scheduling a motion to strike the claim. The Ottawa CAS defendants ultimately had to request a case conference to set a date for their r. 21 motion. The COVID-19 pandemic is also a relevant contextual factor. The motion to strike the claim on the basis that it discloses no reasonable cause of action would, if successful, result in the entire claim being struck. Finally, the motion seeks to dismiss the action on the basis that it is an abuse of the process of the court. Judges have an inherent discretion to prevent an abuse of the court’s process.

[25] For these reasons, the Ottawa CAS defendants’ motion is permitted to proceed.

Abuse of process

[26] A defendant may move under r. 21.01(3)(d) to have an action dismissed on the basis that it is an abuse of the process of the court. In addition, pursuant to r. 25.11(c), the court may strike out a pleading on the ground that the pleading is an abuse of the process of the court.

[27] The Ottawa CAS defendants allege that the action is a collateral attack on orders made by the family court in the protection application. Mr. E.-H. says that his action is not an attempt to relitigate the child protection proceedings or an attempt to attack existing court orders. He asserts that the protection application was “never heard [o]n its merits by the court, the court never found the children in need of protection, and there was no final order or decision made by the family court.”

[28] The doctrine of abuse of process is used to preclude litigation that violates the principles of judicial economy, consistency, finality, and the integrity of the administration of justice: Toronto (City) v. C.U.P.E., Local 79. The doctrine of abuse of process is also used to prevent litigants from circumventing unfavourable court decisions. As the Supreme Court of Canada observed in Garland v. Consumers’ Gas Co.:

The doctrine of collateral attack prevents a party from undermining previous orders issued by a court or administrative tribunal. Generally, it is invoked where the party is attempting to challenge the validity of a binding order in the wrong forum, in the sense that the validity of the order comes into question in separate proceedings when that party has not used the direct attack procedures that were open to it (i.e., appeal or judicial review). [Citations omitted.]

[29] In Wilson v. The Queen, the Supreme Court of Canada described the rule against collateral attack as follows:

It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally—and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.

[30] The paramount purpose of the CFSA is to promote the best interests, protection and well being of children. Under the CFSA, a children’s aid society is mandated to investigate allegations or evidence that children may be in need of protection, protect children where necessary, provide care for children assigned to its care, and supervise children assigned to its supervision.

[31] Section 57(1) of the CFSA sets out the orders available to the court, acting in the child’s best interests, where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child. The orders include consecutive orders of society wardship and supervision.

[32] Mr. E.-H. filed an affidavit in response to the Peel CAS’ motion to transfer the jurisdiction of the child protection application to Ottawa and to place the children in the temporary care and custody of the Peel CAS on a without prejudice basis. In that affidavit, Mr. E.-H.,

• stated that neither the Ottawa CAS nor the Peel CAS had any ground to believe the children’s safety was at risk;
• claimed that the Ottawa CAS had misled the Justice of the Peace to obtain the warrant of apprehension;
• alleged that the Ottawa CAS and the Peel CAS had failed to follow the proper procedure regarding the placement of the children in next of kin care; and
• claimed that “the CAS and CAS workers” did not show respect for the Ontario legal system and ignored their obligations and responsibilities under the CFSA.

[33] In the same affidavit, at para. 41, Mr. E.-H. asked that the case be dismissed “for the lack of providing objective evidence that the children[’s] safety is in risk and return all our children to our home immediately.” Mr. E.-H.’s allegations to the family court, including the allegation that the Ottawa CAS defendants misled the Justice of the Peace, are repeated in his statement of claim in this action.

[34] On November 10, 2014, based on the evidence received from and the submissions on behalf of the parties, Hawke J. of the Ontario Court of Justice made a temporary without prejudice order placing the children in the care and custody of the Peel CAS. Hawke J. transferred the jurisdiction of the protection application to Ottawa.

[35] Mr. E.-H. also filed an affidavit dated January 20, 2015 in the protection application. In that affidavit, Mr. E.-H. repeated his core allegations against the Ottawa CAS defendants, including:

• that the “Ottawa CAS worker” threatened his spouse that if she did not leave with the children the worker would apprehend the children immediately;
• that Ms. Pearce was “eager to take the children”; and
• that Ms. Pearce swore an affidavit containing false and misleading information to obtain the warrant to apprehend.

[36] On April 20, 2015, Blishen J., based on the evidence received from and the submissions on behalf of the parties, including Mr. E.-H., granted leave for the CAS to withdraw the protection application and the amended protection application. Contrary to Mr. E.-H.’s submission, the order of Blishen J. is a final order.

[37] In this action, it is clear that Mr. E.-H. is attempting to relitigate the child protection proceeding, including the investigative process, and is, once again, challenging the basis on which the warrant to apprehend was obtained. The same allegations were before the court in the protection application in which Mr. E.-H. was involved and submitted materials. Mr. E.-H. did not appeal any orders made in the protection application.

[38] Where a plaintiff’s civil action is found to be an improper attempt to re-litigate a prior child protection proceeding, the civil proceeding may constitute an abuse of process: Plummer v. Children’s Aid Society of Hamilton.

[39] In C.R. v. Her Majesty the Queen in Right of Ontario, the court struck the plaintiffs’ action under r. 21, stating that it is an abuse of process to claim that existing court orders made in another proceeding are incorrect and that they give rise to damages. The court in C.R. concluded that the plaintiffs’ claims emanating from the same allegations made in prior proceedings constituted collateral attacks and struck the claims as an abuse of process. I have reached the same conclusion in this case. See also P.(R.) v. Children’s Aid Society of Lanark (County) & Smiths Falls (Town) and D.A. v. CAS Ottawa.

[40] The cases on which Mr. E.-H. relies do not assist him. In Harris v. Glaxosmithkline Inc., the Court of Appeal for Ontario was commenting on the elements of the tort of abuse of process and not abuse of process in the context of the Rules of Civil Procedure.

[41] Mr. E.-H. also relies on Metropolitan Toronto Condominium Corporation No. 1352 v. Newport Beach Development Inc. In that case, Tarion, the administrator of the Ontario New Home Warranties Plan Act, denied the plaintiff’s claim for compensation for construction defects. The plaintiff then appealed to the Licence Appeal Tribunal. The appeal was stayed. The defendant moved pursuant to r. 21 for an order dismissing the plaintiff’s civil action on the ground of abuse of process. The Court of Appeal agreed with the motion judge that the plaintiff’s civil action did not offend the rule against collateral attack, noting that “although the availability of an appeal to a specialized tribunal with court-like procedures weighs against permitting a court action, the consumer protection purpose of the legislation and the convenience of having all parties and all claims in one forum weigh heavily in favour of permitting a court action.” The factual matrix before me is very different and does not give rise to the same factors.

[42] I find the claim to be an abuse of process. Mr. E.-H.’s allegations in the claim were before the family court in the protection application. Mr. E.-H. was involved in that application. As he does now, he challenged the validity of the process by which the warrant to apprehend was obtained. As he does now, he challenged the conduct of the Ottawa CAS defendants and contended that the protection application should be dismissed for lack of evidence. He did not appeal any orders made in the protection application, including the final order of Blishen J. granting leave to the Ottawa CAS to withdraw its application.

[43] Mr. E.-H.’s civil action is nothing more than an attempt to relitigate the prior child protection proceeding and to challenge the orders made in that proceeding. I agree with the Ottawa CAS defendants that to allow the action to proceed would be tantamount to allowing Mr. E.-H. to appeal the prior court orders. To permit Mr. E.-H. to “reach back through time” to recast his case, notwithstanding that it was adjudicated, would undermine the administration of justice: Kenora-Patricia Child and Family Services v. M.(A.).

[44] This action is an abuse of the process of the court. I dismiss the action on this basis.

No reasonable cause of action

[45] I would also strike out the statement of claim on the ground that it discloses no reasonable cause of action.

[46] To succeed under r. 21.01(1)(b), the defendant must show that it is plain and obvious that the plaintiff’s claim will fail: Hunt v. Carey Canada Inc. On a r. 21.01(1)(b) motion, the court must accept the facts alleged in the statement of claim as true, unless they are patently ridiculous or incapable of proof.

(i) Negligence

[47] Mr. E.-H. alleges that the Ottawa CAS defendants owed him a duty of care and that they breached their duty of care and the standard of care in their investigation and in the conduct of the protection application. Mr. E.-H.’s allegations include that the Ottawa CAS defendants failed in their duty to protect him, failed to properly review the file, failed to follow the applicable child protection standards, provided false and incomplete information to the court, made threats to the plaintiffs regarding the apprehension of the children, and delayed in consenting to the withdrawal of the protection application.

[48] It is plain and obvious that this claim cannot succeed.

[49] A children’s aid society owes no duty of care to the parent of a child who is the subject of a child protection concern at any stage of the society’s involvement; the duty of care is owed only to the child who is the subject of the child protection concern: J.B. v. Ontario (Child and Youth Services), applying Syl Apps Secure Treatment Centre v. B.D. Further, as the Court of Appeal observed in J.B., “there is no need for a case-specific factual inquiry where the duty of care does not exist.”

[50] The Ottawa CAS defendants did not owe Mr. E.-H. a duty of care in the investigation or in the conduct of the protection application: their duty of care was owed only to the children. Accordingly, Mr. E.H.’s claim in negligence is untenable at law and must be struck.

(ii) The Charter breach claim

[51] Mr. E.-H. alleges that the Ottawa CAS defendants breached his s. 7 Charter rights. In support of this claim, Mr. E.-H. relies on largely the same facts that are said to give rise to his claim in negligence.

[52] There can be no s. 7 Charter breaches arising from the Ottawa CAS defendants’ compliance with their statutory mandate to investigate child protection concerns. Nor can there be any s. 7 Charter breaches arising from their adherence to court orders made in the protection application. Allegations of negligence cannot be “dressed up as Charter breaches.”

[53] These claims must be struck because they disclose no reasonable cause of action.

(iii) Intentional misfeasance in public office

[54] Mr. E.-H. claims misfeasance in public office against Ms. Pearce. Again, Mr. E.-H. relies on largely the same allegations that are said to give rise to his claim in negligence.

[55] The tort of misfeasance in a public office addresses abuse of executive or administrative power. In Odhavji Estate v. Woodhouse, the Supreme Court of Canada identified the elements of the tort:

[T]he tort of misfeasance in a public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law.

[56] The family court did not accept Mr. E.-H.’s submissions that the Ottawa CAS defendants had obtained the warrant to apprehend on false evidence. The court continued in place the child protection order that the children remain under the supervision of the Ottawa CAS. I agree with the Ottawa CAS defendants that their adherence to court-imposed orders as to what was in the best interests of the children, cannot constitute deliberate unlawful conduct by the Ottawa CAS defendants.

[57] This claim is untenable. It discloses no reasonable cause of action and must be struck.

(iv) Claim for abuse of power

[58] There is no stand-alone tort known as “abuse of power”; rather abuse of power is an aspect of the tort of misfeasance in a public office. This claim discloses no reasonable cause of action and must be struck.

(v) Claim for breach of confidentiality

[59] Mr. E.-H. claims damages for “breach of confidentiality”; however, he has pleaded no facts in support of his claim.

[60] As recognized by the Court of Appeal in Jones v. Tsige, the tort of intrusion upon seclusion consists of the following elements:

(i) the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; (ii) the conduct of the defendant must be intentional; and (iii) a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

[61] It is plain and obvious that this claim will fail. The Ottawa CAS defendants acted pursuant to their statutory mandate to investigate the child protection concerns and continued to act under court orders. They did not act “without lawful justification.” Mr. E.-H.’s allegations that the Ottawa CAS defendants breached his confidentiality disclose no reasonable cause of action. This claim must be struck.

(vi) Defamation claim

[62] Mr. E.-H. claims damages for defamation. In the statement of claim, he alleges false statements were made by the Ottawa CAS defendants to the court in the child protection proceeding and to obtain the warrant to apprehend.

[63] No action for defamation lies for “words written or spoken in the ordinary course of any proceedings before a court recognized by law”; the defence of absolute privilege applies to statements in the pleadings, and in affidavits, as well as to statements made in open court: Fabian v. Margulies.

[64] Mr. E.-H.’s claim in defamation discloses no reasonable cause of action and must be struck.

(vii) Infliction of Nervous Shock

[65] The tort of intentional infliction of nervous shock requires an act or statement, calculated to produce harm, and harm: Louie v. Lastman (No. 2). The act or statement must be “extreme”, “outrageous”, “flagrant”, “beyond mere insult”, and must cause harm consisting of a recognized psychiatric illness and not merely mental distress. Mr. E.-H. has not alleged any acts or statements on the part of the Ottawa CAS defendants that could fit within this description or that were calculated to harm him. There is no possibility of success with respect to this claim.

[66] The tort of negligent infliction of nervous shock requires:

(i) a duty of care owed to the plaintiff; (ii) a breach of the standard of care; (iii) damage resulting from the breach; and (iv) damage which is foreseeable and not too remote.

[67] The Ottawa CAS defendants did not owe Mr. E.-H. a duty of care. There is no possibility of success with respect to this claim.

(viii) Alleged breach of statute

[68] Breach of a statutory duty does not give rise to an independent cause of action in tort: Holland v. Saskatchewan. This claim discloses no reasonable cause of action and must, therefore, be struck.

(ix) Bad faith and malice

[69] In his statement of claim, Mr. E.-H. pleads bad faith and malice on the part of the Ottawa CAS defendants. It is settled law that bad faith is not independently actionable: Alberta v. Elder Advocates of Alberta Society.

[70] Mr. E.-H. and the Ottawa CAS defendants were not in a fiduciary or a contractual relationship, nor were they in any relationship that would give rise to a duty of good faith: Catholic Children’s Aid Society of Toronto v. M.H.. See also D.C. v. Children’s Aid Society of Cape Breton.

[71] In this case, the allegation of bad faith is bootstrapped to the duty of care claim. In these circumstances, the allegation of bad faith cannot survive on its own: J.B..

[72] It is plain and obvious that these claims will fail. They must be struck.

No leave to amend

[73] I would also not grant leave to amend the statement of claim. Amendments should not be granted where to do so would merely result in another proceeding to strike the claim as disclosing no reasonable cause of action: TD Bank v. LaFramboise.

[74] In this action, it is plain and obvious that Mr. E.-H.’s claims against the Ottawa CAS defendants do not disclose any reasonable cause of action. The claims are bound to fail. In any event, the action is dismissed on the ground that it is an abuse of the process of the court.

Conclusion

[75] Mr. E.-H.’s action is dismissed.

[76] In the event the parties are unable to agree on costs of the motion and the action, they may make written submissions limited to a maximum of three pages. The Ottawa CAS defendants shall deliver their costs submissions, together with their Bill of Costs by April 28, 2022. Mr. E.-H. shall deliver his responding costs submissions by May 12, 2022. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Madam Justice Robyn M. Ryan Bell Date: April 14, 2022