CITATION: Alafi v. Lindenbach, 2023 ONSC 831

COURT FILE NO.: 17-74697

DATE: 2023/02/02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JAYELLE ALAFI (née FOSTER) and SAREL ALAFI

Plaintiffs

– and –

ANDREA LINDENBACH, AMANDA RICHARD, FIONA WARDLE, THE MIDWIVES OF ALGOMA and THE CHILDREN’S AID SOCIETY OF ALGOMA

Defendants

Raymond A. Murray, for the Plaintiffs

Meryl Rodrigues, for the Defendants, The Midwives of Algoma, Andrea Lindenbach, Amanda Richard, and Fiona Wardle

No on appearing for the Defendant, The Children’s Aid Society of Algoma

HEARD: October 3, 2022 (Hearing by Videoconference)

RULING ON MOTION

(Part 2 of Motion by the Individual Defendants and

the Midwives of Algoma to Strike Mr. Alafi’s Claims)

Corthorn J.

Introduction

[1] Jayelle Alafi and Sarel Alafi are the parents of Tamara Alafi, born on November 25, 2015. The Alafis commenced this action in 2017. They seek damages and other relief based on the conduct of the defendants at the time of and in the days following Tamara’s birth.

[2] During her pregnancy with Tamara, Ms. Alafi engaged the services of a midwife. Upon moving from Ottawa to Sault Ste. Marie in October 2015, Ms. Alafi’s file was transferred from an Ottawa-based midwife organization to the Midwives of Algoma (“MOA”). Through the MOA, the Alafis interacted with three midwives. The three midwives are the individual defendants named in this action. The individual defendants and the MOA are collectively referred to in this ruling as “the Midwives”.

[3] On the day after Tamara was born, one or more of the individual defendants communicated with the Children’s Aid Society of Algoma (the “Society”) and with a physician at the Sault Area Hospital. That evening, two Society employees attended the Alafi residence, accompanied by one or more members of the Sault Ste. Marie Police Service. Tamara was apprehended and taken to the Hospital.

[4] With the consent of a Society representative, and without consent from either of the plaintiffs, Tamara was administered antibiotics for a possible infection. Thereafter, the results of Tamara’s bloodwork showed that Tamara was not suffering from an infection. The treating physician ordered that the administration of antibiotics be ceased.

[5] Within days following Tamara’s birth, and while Tamara remained at the Sault Area Hospital, the Society commenced an application pursuant to the provisions of the Child and Family Services Act[^1] (“CFSA”). The application was heard on December 1, 2015. The outcome of the application was as follows:

• Tamara was found not to be in need of protection;
• The Society was ordered to return Tamara to the plaintiffs; and
• Tamara’s return to the plaintiffs was conditional on them attending all medical appointments for Tamara and following all reasonable recommendations of medical professionals.

[6] In 2021, the Midwives and the Society each brought a motion to strike portions of the claims advanced by one or both of the Alafis. The Society’s motion was fully determined; the Midwives’ motion was determined in part.

[7] In Alafi v. Lindenbach, 2022 ONSC 1432 (“Ruling No. 1”) the court ordered that (a) the plaintiffs’ claims in negligence against the Society are struck, without leave to amend, and (b) the Society’s motion to strike the plaintiffs’ claims for relief pursuant to ss. 7 and 24 of the Charter[^2] is dismissed.

[8] On their motion, the Midwives ask the court to dismiss Mr. Alafi’s claims against them. The Midwives’ motion does not address Mrs. Alafi’s claims. The plaintiffs’ claims are, however, pleaded collectively. In the fresh as amended statement of claim (“the Pleading”), the plaintiffs do not distinguish between Mr. Alafi’s claims and those of Ms. Alafi.

[9] In Ruling No. 1, I identified two types of claims made by the plaintiffs against the Midwives. Those claims are the “scope of practice” claim and the “duty to report” claim. At paras. 36-37 of Ruling No. 1, I defined the “scope of practice” claim as including the following portions of the Pleading:

• the allegations relating to the assessment of, monitoring of, and care to Ms. Alafi during the pregnancy, labour and post-partum period (paras. 75(c)-(f), (j)-(l), and (p)); and
• the allegations relating to the assessment of, monitoring of, and care to Tamara during the post-partum period (paras. 73(k), (n)-(q), (s), and (t)).

[10] In Ruling No. 1, I ordered that “Mr. Alafi’s claims against the Midwives based on the scope of practice claim, including those in negligence, negligent misrepresentation, and negligent infliction of mental suffering, are struck without leave to amend”: at para. 143. The balance of the Midwives’ motion – as it relates to the duty to report claim – was adjourned.

[11] After the release of Ruling No. 1, the plaintiffs and the Midwives each delivered an additional factum – focused on the Midwives’ request to strike what remains of Mr. Alafi’s claims against them (i.e., the duty to report claim).

[12] On the continuation of the Midwives’ motion – to address the duty to report claim – the plaintiffs requested an adjournment. The plaintiffs requested an opportunity to first seek leave to amend the Pleading and then proceed with the balance of the Midwives’ motion. The plaintiffs submitted that the Pleading needs to be reorganized and amended based on the findings made in Ruling No. 1.

[13] The Midwives opposed the request for an adjournment of the balance of their motion.

[14] I reserved my decision on the request for an adjournment. With the agreement of counsel for the Midwives and counsel for the plaintiffs, the substantive motion was argued. That step was taken to move the proceeding forward in an efficient and cost-effective manner.

Disposition

[15] For the reasons that follow, (a) the plaintiffs’ request for an adjournment of the balance of the Midwives’ motion is dismissed, and (b) the balance of Mr. Alafi’s claims against the Midwives (i.e., based on the duty to report claim), including those in negligence, negligent misrepresentation, and negligent infliction of emotional suffering, are struck without leave to amend.

[16] To understand the outcome of the request for an adjournment and of the substantive motion, it is helpful to know how Mr. Alafi’s duty to report claim is set out in the Pleading. I will first review the relevant portions of the Pleading, then address the adjournment request and, thereafter, the balance of the Midwives’ motion to strike.

The Pleading

[17] The duty to report claim, advanced collectively by Mr. Alafi and Mrs. Alafi, is defined at paras. 38-40 of Ruling No. 1. The duty to report claim addresses the alleged negligence of the Midwives in their interaction with the plaintiffs when assessing whether it was necessary to involve the Society. The allegations in support of the duty to report claim include the following allegations:

• During the post-partum period, the Midwives failed to communicate their belief to the plaintiffs that Tamara was at risk of serious or immediate harm (para. 75(u) of the Pleading[^3]);
• The Midwives failed to communicate with the plaintiffs whether Tamara needed immediate medical attention that would necessitate the potential intervention of the Society (para. 75(x));
• The Midwives failed to take alternative measures before contacting the Society. The alternative measures that the plaintiffs allege could have been taken include conducting a more fulsome assessment of Tamara, recommending that an ambulance be called, or even calling an ambulance (para. 75(y));
• The Midwives failed to give the plaintiffs an opportunity to take the necessary steps to attend to Tamara’s needs (para. 75(bb)); and
• The Midwives were uninformed about the plaintiffs’ faith, failed to make inquiries in that regard, made incorrect assumptions, and drew negative inferences about the plaintiffs (para. 75(cc)).

[18] The plaintiffs rely on s. 72 of the CFSA. Section 72 is titled, “Duty to report the child in need of protection”. Section 72(1), items 2i and 2ii provide as follows:

(1) Despite the provisions of any other Act, if a person, including a person who performs professional or official duties with respect to children, has reasonable grounds to suspect one of the following, the person shall forthwith report the suspicion and the information on which it is based to a society:

2. There is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

i. failure to adequately care for, provide for, supervise or protect the child, or

ii. pattern of neglect in caring for, providing for, supervising or protecting the child.

[19] The claims in negligent misrepresentation are set out at paras. 81-82 of the Pleading:

81. The Midwives had a duty of care to the Plaintiffs. The Midwives made untrue, inaccurate, and misleading representations to the Plaintiffs, including, but not limited to, failing to communicate the alleged urgency of Tamara’s health condition and necessity of pediatric consultation, and the consequences of declining a pediatric consultation. The Midwives’ conduct fell below the standard of care required of midwives and was negligent.

82. The Plaintiffs reasonably relied on the Midwives’ negligent misrepresentations. Amongst others, the Plaintiffs did not realize the alleged urgency of Tamara’s health condition and declined pediatric consultation. This reliance was detrimental to the Plaintiffs, resulting in the CAS apprehending Tamara and the related trauma.

[20] The claims in negligent infliction of mental suffering are set out at para. 83 of the Pleading:

83. The Plaintiffs state that the Midwives are liable for negligent infliction of mental suffering. The Midwives’ negligent conduct towards the Plaintiffs, intrusion upon seclusion, and negligent misrepresentation was a wanton and reckless disregard for the Plaintiffs’ interests. It was foreseeable that the Plaintiffs would suffer from mental harm and shock when amongst other wrongs, the Midwives caused the Plaintiffs’ first child to be apprehended by the CAS on the second day of her life, and the Plaintiffs have in fact suffered from psychological harm.

[21] As against the Midwives, the plaintiffs seek non-pecuniary general damages of $400,000 for pain, suffering, and loss of enjoyment of life. The plaintiffs also seek damages for the cost of medical and rehabilitative treatment and for loss of income; the damages claimed under those headings are not particularized. Last, the plaintiffs seek punitive, aggravated, and/or exemplary damages of $600,000.

[22] I turn next to the plaintiffs’ request for an adjournment of the balance of the Midwives’ motion.

The Request for an Adjournment

a) The Positions of the Parties

[23] The plaintiffs wish to bring a motion for leave to amend the Pleading. The plaintiffs request that the balance of the Midwives’ motion to be determined based on the Pleading, as amended (assuming that leave to amend is granted). The plaintiffs’ position is that the amendments they wish to make to the Pleading are required because of the outcome in Ruling No. 1 on the Midwives’ motion.

[24] The amendments the plaintiffs wish to make to the Pleading address the following matters:

a) Re-organization of the claims advanced so as to delineate between Mr. Alafi’s claims and those of Mrs. Alafi;

b) The addition of reliance on ss. 2, 9-11 and 20-22 of the Health Care Consent Act, 1996, S.O. 1996, c. 2 (“HCCA”); and

c) To parse out Mr. Alafi’s duty to report claim from his now dismissed scope of practice claim.

[25] The plaintiffs submit that denying their request for an adjournment will result in inefficiencies in the form of multiple appearances before the court on motions for leave to amend and/or to strike portions of a further amended statement of claim.

[26] The Midwives submit that the plaintiffs should not, at this stage of the Midwives’ motion to strike, be granted the opportunity to seek leave to amend the Pleading. The Midwives’ position is that,

• what remains of Mr. Alafi’s claims are claims based in negligence;
• the proposed amendments, including the references to the HCCA, do nothing to change the nature of Mr. Alafi’s claims; and
• the court should proceed with its determination of the motion, including the Anns/Cooper[^4] duty of care analysis.

b) Analysis

[27] Set out below is a chronology of the documents served and events to date on the Midwives’ motion. For the purpose of the chronology and the decision on the request for an adjournment, the court assumes that service of the documents was effected on or about the date of the document:

• Jan. 4, 2021 - Midwives’ record
• Jan. 18, 2021 - Plaintiffs’ responding record
• Feb. 1, 2021 - Midwives’ factum
• Feb. 17, 2021 - Plaintiffs’ factum
• Feb. 25, 2021 - Oral submissions on the Midwives’ motion
• Mar. 12, 2021 - Midwives’ written submissions re: failure to communicate and negligent misrepresentation
• Mar. 31, 2021 - Plaintiffs’ written submissions re: failure to communicate, etc.
• Apr. 16, 2021 - Midwives’ reply written submissions re: failure to communicate, etc.
• Jun. 30, 2021 - Oral submissions on the Society’s motion
• Mar. 4, 2022 - Ruling No. 1 is released
• Aug. 26, 2022 - Midwives’ supplemental factum
• Sept. 13, 2022 - Plaintiffs’ supplemental factum
• Oct. 3, 2022 - Return date for the balance of the Midwives’ motion

[28] For the reasons set out at paras. 95-98 of Ruling No. 1, the Midwives’ motion as it relates to the duty to report claim was adjourned. The reasons for the adjournment did not include giving the plaintiffs an opportunity to consider how the duty to report claim is framed and what amendments, if any, to that portion of Mr. Alafi’s claims may be required. The plaintiffs did not, in any event, identify in their supplemental factum that they intend to seek leave to amend the Pleading.

[29] I agree with the Midwives that part of the way through a motion to strike is not the appropriate time for the responding party to bring or for the court to consider a motion for leave to amend the subject pleading. That general principle is even more applicable where, as in the circumstances of this case, the plaintiffs (a) have already amended their statement of claim on at least one occasion, (b) waited 1.5 years after being served with the moving parties’ record and factum to raise the possibility of further amendments to the Pleading, and (c) waited 10 months after the release of Ruling No. 1 to raise the possibility of further amendments to the Pleading.

[30] I am not convinced that an adjournment of the balance of the Midwives’ motion to strike would result in greater efficiency or cost-effectiveness than does completing the hearing of the motion. With respect to efficiency, if the adjournment were granted, the parties would come before the court again on the plaintiffs’ motion for leave to amend. If that motion is unsuccessful, the Midwives would be in a position to pursue their motion to strike.

[31] With respect to cost-effectiveness, if the adjournment were granted, the Midwives and the plaintiffs would incur the costs of the pleading motion and possibly of the continuation of the second part of the Midwives’ motion to strike.

[32] More than seven years have passed since the events giving rise to Mr. Alafi’s claims occurred. The Midwives are entitled to a determination of their motion to strike based on Mr. Alafi’s claims as set out in the Pleading.

[33] The plaintiffs’ request to adjourn the motion is dismissed.

The Issue

[34] The sole issue to be determined is whether Mr. Alafi’s claim against the Midwives based on the proposed duty to report – as pleaded under the headings of negligence, negligent misrepresentation, and negligent infliction of mental suffering – is to be struck, without leave to amend, because it is untenable or discloses no reasonable cause of action.

Motions to Strike

[35] The law with respect to motions to strike under rr. 21.01(1)(a) and (b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the case authorities are reviewed in detail in Ruling No. 1. I will not repeat that review here. Instead, I include a few key points from that review:

• When determining a motion under r. 21.01(1)(b), the court must assume that the facts as alleged in the statement of claim can be proved. Only if it is plain and obvious that the statement of claim discloses no real cause of action is the claim to be dismissed. (See: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980);
• The failure to plead a necessary element of the cause of action amounts to a “radical defect on the basis of which it is plain and obvious that the plaintiff cannot succeed”. (See: Deep v. Ontario, [2004] O.T.C. 541 (Ont. S.C.), at para. 34); and
• The “plain and obvious” test also applies to motions under r. 21.01(1)(a). (See: MacDonald v. Ontario Hydro (1994), 1994 CanLII 7294 (ON SC), 19 O.R. (3d) 529 (Gen. Div.), at pp. 533-534, aff’d (1995), 1995 CanLII 10628 (ON SC), 26 O.R. (3d) 401 (Div. Ct.), at p. 406; Law Society of Upper Canada v. Ernst & Young (2003), 2003 CanLII 14187 (ON CA), 65 O.R. (3d) 577 (C.A.), at para. 49.)

The Anns/Cooper Analysis

[36] The preliminary question to be answered is whether the proposed duty of care falls within an established (or analogous) category of a duty of care.4F[^5] If it does not do so, then the court must carry out the Anns/Cooper2F5F analysisto determine whether the proposed duty of care should be recognized in law. That analysis is carried out in two stages.

[37] At the first stage, the court considers whether the alleged harm was reasonably foreseeable and whether there exists sufficient proximity between the parties to give rise to a duty of care:

• Reasonable foreseeability is determined by asking whether the person harmed was “so closely and directly affected by the [defendant’s] act that [the defendant] ought reasonably to have them in contemplation as being so affected”: Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562 (H.L.), at p. 580.
• The proximity analysis requires the court to consider whether a plaintiff and defendant were in a sufficiently close and direct relationship to make it fair and just to impose on the defendant a duty of care towards the plaintiff: Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, [2018] 1 S.C.R. 587, at para. 23; Paxton v. Ramji, 2008 ONCA 697, 92 O.R. (3d) 401, at para. 64.

[38] Policy considerations are relevant to the stage one, proximity analysis. One of the policy considerations addressed as part of that analysis is the potential for conflicting duties to arise: see, for example, Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83, at para. 41.

[39] If reasonable foreseeability and proximity are made out, then the court moves to the second stage of the analysis. At that stage, the court determines whether there are residual policy considerations why the proposed duty of care should not be recognized.

[40] The policy considerations relevant at the second stage are broader in scope than those relevant to the proximity analysis at the first stage. At the second stage, the court considers the implications that recognition of the proposed duty of care would have on “other legal obligations, the legal system and society more generally”: Paxton, at para. 78, citing Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 51.

The Positions of the Parties

a) The Midwives

[41] The Midwives acknowledge that the proposed duty to report does not fit within an established (or analogous) category of duties; it is therefore necessary to carry out the Anns/Cooper analysis.

[42] The Midwives emphasize that the proposed duty of care has received prior judicial consideration and has not been recognized. The Midwives submit that the proposed duty of care should not be recognized for the first time in this case.

[43] For the purpose of the first stage of the Anns/Cooper analysis, the Midwives acknowledge that the psychological harm which Mr. Alafi alleges he suffered may have been reasonably foreseeable to a class of plaintiffs that include him in the circumstances of this case”6F. The Midwives submit, however, that consideration of the proposed duty of care to Mr. Alafi stalls at the Anns/Cooper stage one, proximity analysis.

[44] The Midwives ask the court to find (as it did in Ruling No. 1) that (a) Mr. Alafi falls within the category of a non-patient third party (i.e., spouse, partner, or father of the patient), and (b) individuals within that category lack sufficient proximity to the Midwives for the proposed duty of care to be imposed. The Midwives’ position is that, in any event, at the second stage of the Anns/Cooper analysis, residual policy considerations weigh against the imposition of the proposed duty of care.

b) The Plaintiffs

[45] The plaintiffs describe the proposed duty of care as a “duty to inform the substitute decision-maker”. The plaintiffs submit that, when considered in that context, the proposed duty succeeds at both the first and second stages of the Anns/Cooper analysis. The plaintiffs submit that there is no conflict between the interests of the substitute decision-maker (Mr. Alafi) and the patient (Tamara).

[46] In addition, the plaintiffs submit that there are no residual policy concerns to preclude the imposition of the duty to inform. The plaintiffs submit that the imposition of such a duty (a) is consistent with a patient’s fundamental right to be informed of treatment options, risks, and consequences, and (b) promotes the best interests of both the patient and the substitute decision-maker.

[47] Mr. Alafi asks the court to dismiss the Midwives’ motion and leave it to the trial judge to deal with policy considerations, if necessary, on the basis of a fulsome record.

[48] The plaintiffs acknowledge that the Pleading does not explicitly allege that the Midwives acted with malice (as required pursuant to s. 72(7) of the CFSA). The plaintiffs ask the court to consider, however, the allegations made at para. 93 of the Pleading. It is therein alleged that the Midwives engaged in “reprehensible” conduct.

[49] The plaintiffs ask the court to dismiss the Midwives’ motion as it relates to Mr. Alafi’s claims based on a duty to inform. Although not addressed in either a notice of cross-motion or a cross-motion record, the plaintiffs ask the court for leave to amend the Pleading. The plaintiffs have not provided a further proposed draft amended pleading. The plaintiffs propose, however, to add particulars of the allegations of malicious conduct (s. 72(7) of the CFSA) and, more generally, to include reliance on ss. 2, 9-11 and 20-22 of the HCCA.

c) The Midwives in Reply

[50] In reply, the Midwives submit that the plaintiffs are doing nothing more than attempting to carve out of the scope of practice claim the duty of a health professional to obtain informed consent from their patient – Tamara. The claims which fall within the scope of practice claim have already been struck; the Midwives assert that the proposed duty to inform claims must also be struck.

[51] The Midwives’ position is that it is not necessary at this stage of the action, nor would it be appropriate based on the record before the court, for the court to determine (a) whether a cause of action based on lack of informed consent from Tamara is identified in the Pleading, and (b) if such a claim is identified, whether that cause of action stands.

Analysis

[52] The plaintiffs describe the proposed duty as the “duty to inform” (the patient or their substitute decision-maker) and not as the “duty to report” (i.e., to the Society and as described by the court in Ruling No. 1). In their supplementary factum and in oral submissions the plaintiffs describe a healthcare professional’s obligation to inform the patient – directly or through their substitute decision-maker – of treatment options, risks and consequences as a corollary to the patient’s fundamental right to be provided with that information.

[53] Relying on allegations made in paras. 47, 50, 54, 67, and 75(h), (m)-(o), (q )-(r), and (aa) of the Pleading, the plaintiffs’ position is that (a) the Midwives failed to inform the plaintiffs, and (b) “proceeded to request CAS intervention based on faulty information and an uninformed refusal to consent to medical intervention” for Tamara: see para. 6 of the plaintiffs’ supplemental factum.

[54] At paras. 8-17 of their supplemental factum, the plaintiffs continue their submissions with respect to a healthcare professional’s obligation to disclose relevant information to the patient. I find that what the plaintiffs describe as the “duty to inform” is nothing more than the long-recognized duty imposed on a healthcare professional to obtain informed consent from the patient – directly or through a substitute decision-maker – to treatment decisions, choices, or refusals.

[55] At para. 96 of the Pleading, the plaintiffs list the statutes upon which they plead and rely in support of their respective claims. One of the statutes is the Midwifery Act, 1991, S.O. 1991, c. 31 (“the Act”). Section 3 of the Act defines a midwife’s scope of practice as follows:

The practice of midwifery is the assessment and monitoring of women during pregnancy, labour and the post-partum period and of their newborn babies, the provision of care during normal pregnancy, labour and post-partum period and the conducting of spontaneous normal vaginal deliveries.

[56] I agree with the Midwives that the duty to obtain informed consent from the patient – whether the patient is the mother or the newborn baby – falls within the Midwives’ scope of practice. The duty is owed to the patient, not to their substitute-decision maker. Therefore, the individuals to whom the Midwives owed a duty of care to obtain informed decisions with respect to treatment are Mrs. Alafi (personally) and Tamara.

[57] Mr. Alafi’s status as Tamara’s statutorily mandated substitute decision-maker (HCCA, ss. 20(1) and 21) does not elevate him to the same position as the patient. The only individuals who may be entitled to damages based on an alleged failure to obtain informed consent are Mrs. Alafi (personally) and Tamara.

[58] Given that the proposed “duty to inform” falls within the scope of practice claim, that portion of Mr. Alafi’s claims is dismissed for the reasons set out in paras. 55 to 73 of Ruling No. 1.

[59] Turning to the Midwives’ decision to make a report to the Society, in their supplemental factum the plaintiffs for the first time identify that they rely on s. 72(7) of the CFSA. That section provides statutory immunity for the maker of a report to a society, unless the report-maker “acts maliciously or without reasonable grounds for the suspicion.”

[60] The allegations summarized in the five bullet points in para. 17, above, could be said to “evidence [ ] an intention to bring the claim [against the Midwives] within the exception in s. 72(7)”: B.K.2 v. Chatham-Kent Children’s Services, 2016 ONSC 1921, at para. 57. The plaintiffs, however, make no mention whatsoever of the CFSA in the allegations against the Midwives. The plaintiffs refer to the CFSA only in the allegations against the Society. In doing so, the plaintiffs cite numerous sections of the CFSA, but do not cite s. 72 generally or s. 72(7) specifically.

[61] I find, therefore, that Mr. Alafi’s claims against the Midwives are not properly framed to assert a cause of action based on s. 72(7).

Summary and Disposition

[62] I find that what the plaintiffs describe as the “duty to inform” is the same as the duty imposed on a healthcare professional to obtain informed consent to treatment decisions, choices and refusals. That duty falls within the Midwives’ scope of practice.

[63] That scope of practice component of Mr. Alafi’s claims has already been dismissed. The plaintiffs’ attempt to revive a sub-component of the scope of practice claim by rebranding the sub-component as a “duty to inform” does not succeed.

[64] If the plaintiffs’ intention was to pursue a claim based on s.72(7) of the CFSA, they have failed to properly frame such a claim against the Midwives.

[65] Mr. Alafi’s claims based on what the court describes as the proposed duty to report are struck, without leave to amend. The overall result, taking into consideration Ruling No. 1 and this ruling, is that Mr. Alafi’s claims against the Midwives are struck in their entirety and without leave to amend.

[66] I agree with the Midwives that the issue of whether the Pleading discloses a reasonable cause of action based on lack of informed consent is not before the court on the motion.

Costs

[67] In the event the parties are unable, within 20 days of the date of this ruling, to resolve the issue of costs of the Midwives’ motion, counsel for the Midwives shall inform the court (a) whether the Midwives are seeking their costs of the motion and, if so, (b) the scale upon which they are requesting that their costs be fixed.

[68] If the court is required to address the issue of costs of the motion it will do so on the basis of the Midwives’ costs outline dated September 30, 2022 and the plaintiffs’ costs outline dated October 3, 2022. No written submissions will be required.

[69] The communication referred to in the para. 67, above, shall be by email to the Civil Trial Co-ordinator. If the Civil Trial Co-ordinator’s office does not receive an email in that regard from counsel for the Midwives within 20 days of the date of this endorsement, there shall be no costs of the Midwives’ motion.

Madam Justice Sylvia Corthorn

Released: February 2, 2022

COURT FILE NO.: 17-74697

DATE: 2023/02/02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JAYELLE ALAFI (née FOSTER) and SAREL ALAFI

Plaintiffs

– and –

ANDREA LINDENBACH, AMANDA RICHARD, FIONA WARDLE, THE MIDWIVES OF ALGOMA and THE CHILDREN’S AID SOCIETY OF ALGOMA

Defendants

ruling ON MOTION

(Part 2 of Motion by the Individual Defendants and Midwives of Algoma to Strike Mr. Alafi’s Claims)

Madam Justice Sylvia Corthorn

Released: February 2, 2023

[^1]: R.S.O. 1990, c. C.11. The circumstances upon which the plaintiffs’ claims are based occurred in November and December 2015 – prior to the amendments to the CFSA which resulted in the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1.

[^2]: Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[^3]: All paragraph numbers which appear in this list of bullet points are from the Pleading.

[^4]: Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.) and Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537.

[^5]: Cooper, at para. 36.