Court File and Parties
COURT FILE NO.: CV-20-74201-00A1 DATE: January 16, 2024
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JTB, a minor by his Litigation Guardian, GPN, Plaintiff AND: Catholic Children’s Aid Society of Hamilton, Defendant AND: GPN, Third Party
BEFORE: MacNeil J.
COUNSEL: R. Colautti – Lawyer for the Third Party (Moving Party) V. Mensink – Lawyer for the Defendant (Responding Party) G. Cheng – Lawyer for the OCL
HEARD: October 5, 2023 (via Zoom videoconference)
Endorsement
Introduction
[1] The Third Party, GPN (“Ms. N”), made this motion for an order dismissing the Third Party Claim brought by the Defendant, Catholic Children’s Aid Society of Hamilton (“the CCAS”), against her or, in the alternative, staying the Third Party Claim until disposition of the Plaintiff’s claim against the Defendant or, in the further alternative, permitting Ms. N to continue to act as the Litigation Guardian for the Plaintiff, JTB, notwithstanding the Third Party Claim.
[2] In response, the CCAS made its own motion seeking a dismissal of Ms. N’s motion, and an order removing her as the Litigation Guardian for JTB and appointing the Office of the Children’s Lawyer (“OCL”) to act as litigation guardian.
[3] Counsel for the OCL, Ms. Cheng, sought an adjournment of the specific issue of the appointment of the OCL as litigation guardian for JTB. Ms. N supported the OCL’s request in this regard, while the CCAS did not.
Background
[4] The Plaintiff, JTB, in this matter is a minor, born on […], 2011.
[5] The CCAS and Ms. N were involved in child protection proceedings related to the Plaintiff and his sister, LB.
[6] In the course of the child protection proceedings, Ms. N, while represented by counsel, entered into consent orders where she agreed to supervised visits with the two children. On October 15, 2012, Brown J. made a final order, on consent of all parties, directing that the children would remain in their father’s care, subject to the supervision of the CCAS for a period of six months on terms and conditions, and directing that Ms. N’s access to them would be supervised at the discretion of the CCAS and pursuant to terms and conditions, including that she attend counselling to address her past trauma and (then) current behaviour.
[7] On July 15, 2013, Chappel J. made an order, on consent of all parties, endorsing minutes of settlement which provided that JTB and LB’s father would maintain custody of the children. Ms. N was ordered to have supervised access with them as approved by the father or a supervised access center.
[8] On September 21, 2015, Chappel J. ordered that the CCAS be granted leave to withdraw its protection application and varied the custody order to provide that Ms. N would have access supervised at the YWCA Access Centre.
[9] The CCAS alleges that Ms. N breached the custody order and lived with JTB and his father. As a result, there were only two periods when she and the Plaintiff were separated: first, for six or seven months after the Plaintiff was born; second, for six or seven months in 2016.
[10] The Plaintiff commenced the main action on October 21, 2020, claiming damages against the CCAS for negligence, negligent investigation, malicious prosecution and/or intentional infliction of mental and/or emotional distress (“the Main Action”). A Fresh as Amended Statement of Clam was issued on January 18, 2021.
[11] The CCAS served its Statement of Defence on February 28, 2022.
[12] On March 1, 2022, the CCAS issued the Third Party Claim against Ms. N claiming contribution and indemnity, and setting out certain allegations of negligence against Ms. N as a result of a number of failures and for lying or misleading child protection agencies and/or the court.
Issues
[13] The following are the issues to be determined on this motion:
(a) Should the Third Party Claim against Ms. N be stayed, dismissed or struck pursuant to Rule 21.01(3)(d) and/or Rule 25.11? (b) Should the Third Party Claim be struck pursuant to Rule 21.01(1(b), without leave to amend, for failing to plead a reasonable cause of action? (c) Should an order be made under Rule 29.09 because the Third Party Claim puts the Main Action in jeopardy, so as to prejudice the Plaintiff or unnecessarily delay the proceeding? (d) Should Ms. N be removed as JTB’s Litigation Guardian and the OCL be appointed in her place?
[14] Each of these issues is addressed, in turn, below.
Position of Ms. N
[15] It is Ms. N’s position that the Third Party Claim is frivolous, vexatious or otherwise an abuse of the court’s process and should be dismissed. She submits that it is manifestly devoid of merit, has no connection to the damages asserted in the Main Action, and is unfair to JTB. The Third Party Claim is being used to disqualify her from acting as JTB’s Litigation Guardian and there is no other person prepared or willing to act in her stead. If Ms. N is prevented from continuing as JTB’s Litigation Guardian, his claim will potentially be prevented from continuing and being litigated on its merits.
[16] Even if the OCL is appointed to act as JTB’s litigation guardian (as proposed by the CCAS), the Third Party Claim will cause unnecessary delay to the Main Action, as it will take a substantial amount of court resources to litigate. Further, the CCAS’s Statement of Defence makes multiple allegations concerning both of JTB’s parents that “necessitated involvement” of the CCAS. However, only Ms. N is named as a Third Party. By not naming JTB’s father in the Third Party Claim, Ms. N is forced to initiate a Fourth Party Claim which will further delay and prejudice the adjudication of the Main Action. Allowing the Third Party Claim to proceed would be inconsistent with the objectives of public policy, namely, the fair and timely adjudication of legal issues and the best interests of children. If Ms. N is replaced as JTB’s Litigation Guardian, it will result in the postponement of examinations for discovery in the Main Action until the Fourth Party Claim is brought, and any subsequent motions or appeals are determined.
[17] In any event, the Third Party Claim has no chance of success. The issues raised therein are pleaded as a further defence rather than a viable separate cause of action. The Third Party Claim does not plead a reasonable cause of action in negligence as there is no actual or proximate connection to the damages alleged in the Statement of Claim.
Position of the CCAS
[18] The CCAS takes the position that Ms. N is a cause of any damages suffered by JTB and, accordingly, pursuant to sections 1 and 5 of the Negligence Act, R.S.O. 1990, c. N.1, she is responsible for the damages claimed by JTB and is properly a third party to the action. Sections 1 and 5 of the Negligence Act provide as follows:
Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.
Wherever it appears that a person not already a party to an action is or may be wholly or partly responsible for the damages claimed, such person may be added as a party defendant to the action upon such terms as are considered just or may be made a third party to the action in the manner prescribed by the rules of court for adding third parties.
[19] The CCAS submits that the pleadings are connected. In the Main Action, the Plaintiff pleads damages from the CCAS stemming from the alleged wrongful removal, detention, and separation from his mother, Ms. N. The Plaintiff pleads that he has suffered damages including the loss of access to Ms. N, the loss of her care, guidance and companionship, and the denial of the opportunity to be nurtured by and/or bond with her. In the Third Party Claim, the CCAS pleads that the removal, detention and separation from Ms. N was a result of her conduct and behaviours and the damages described in the Main Action were caused or contributed to by Ms. N’s negligence or breach of duty, the particulars of which are set out in paragraph 5 of the pleading as follows:
(a) Failing to take the necessary steps to ensure the Plaintiff was not a child in need of protection. (b) Failing to cooperate with child protection agencies. (c) Failing to address parenting and mental health concerns noted by child protection agencies, the Court, and otherwise. (d) Failing to follow Court orders. (e) Failing to maximize available (supervised) access time with the Plaintiff. (f) Lying [to] or misleading child protection agencies and/or the Court. (g) Further and other particulars to be provided in advance of trial.
[20] The CCAS submits that the Third Party Claim has merit. The Plaintiff’s claim asserts that “but for” the negligent conduct, negligent investigation, and wrongful apprehension on the part of the CCAS, the Plaintiff would not have been separated from his family and suffered the resulting damages. The Third Party Claim asserts that “but for” the negligent conduct of Ms. N, the Plaintiff would not have been separated from his mother and suffered the alleged damages. The affidavits of the CCAS social workers show a basis for the Third Party Claim. When determining whether the Plaintiff should be apprehended and whether the Plaintiff should remain in CCAS care, the CCAS relied on evidence from various sources including the Plaintiff, LB, the Plaintiff’s father, other social workers, and various health care professionals. The concerns brought up by those individuals related to Ms. N’s ability to care for JTB.
[21] The CCAS submits that Ms. N is not an appropriate litigation guardian for JTB and the OCL should be appointed in her place. Given the underlying facts, Ms. N is in a position of conflict. A litigation guardian may be removed or substituted if they are not acting in the best interest of the party under a disability. The court may substitute the OCL or any other person as litigation guardian. Ms. N’s evidence is that there is no other person prepared to act as the Plaintiff’s litigation guardian.
Analysis
(a) Should the Third Party Claim against Ms. N be stayed, dismissed or struck pursuant to Rule 21.01(3)(d) and/or Rule 25.11?
[22] Rule 21.01(3)(d) of the Rules of Civil Procedure provides:
21.01(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
(d) the action is frivolous or vexatious or is otherwise an abuse of process of the court;
[23] Rule 25.11 empowers the Court to strike out pleadings, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court.
[24] An action will be found to be frivolous, vexatious or an abuse of process where it clearly has no merit: Braysan Properties Inc. “In Trust” v. Muchos et. al., 2022 ONSC 3703, at paras. 56-58; and Salasel v. Cuthbertson, 2015 ONCA 115 at para. 8.
[25] As part of this analysis, it must be “plain and obvious” that the claim cannot succeed: Miguna v. Ontario (Attorney General), 2008 ONCA 799, at para. 21; and Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, at para. 27.
[26] Evidence is admissible with respect to a motion under Rule 21.01(3)(d) or Rule 25.11, however, the court is not to weigh or assess the evidence as if the motion were a trial or a request for summary judgment. The test remains: should the pleading be struck as having no chance of success because it is frivolous and vexatious or an abuse of process: Baradaran v. Alexanian, 2016 ONCA 533, at paras. 15-16; and Miguna, at para. 16.
[27] The rule requires a motion judge to take “a hard look at the factual background, and especially the position and conduct of the parties”: Salasel, at para. 9.
Discussion
[28] In my view, Ms. N has not proven that it is “plain and obvious” that the CCAS’s claim for contribution and indemnity cannot succeed. I do not agree with the submissions made on her behalf that the Third Party Claim is meritless, has no basis in law, and is being used to disqualify her from acting as JTB’s litigation guardian.
[29] Rule 29.01 of the Rules of Civil Procedure permits a third party claim against anyone who is not a party to the existing action and who may be liable to the defendant on any basis that is related to the issues in the main action.
[30] The Third Party Claim is a claim for contribution and indemnity in the event that the CCAS is found liable for damages to the Plaintiff. In the pleading, the CCAS repeats and relies on its Statement of Defence to the Main Action. I am satisfied that material facts in support of the Third Party Claim have therefore been pleaded. The allegations raised in all of the pleadings are inter-connected. Both the Main Action and the Third Party Claim involve the same underlying facts concerning the conduct and behaviour of Ms. N, her ability to care for JTB, and whether the CCAS acted negligently in the measures it took as they relate to JTB.
[31] Unlike the situation in Davy Estate v. Egan, 2009 ONCA 763, by the Third Party Claim, the CCAS does not advance any defence of mitigation. Rather, the situation is more like that in 478649 Ontario Ltd. v. Corcoran (1994), 20 O.R. (3d) 28 (Ont. C.A.), which was distinguished in Davy Estate by the Court of Appeal, at paras. 22-23, as the allegations “implicated” the proposed third parties “in the very events that gave rise to the loss and were jointly and severally liable to the plaintiff for any loss suffered”. Here, the alleged fault of Ms. N relates to causing or failing to avoid the loss when it did occur as per s. 1 of the Negligence Act. The CCAS cannot advance contribution and indemnity as against Ms. N as part of any defence it may raise. As JTB has not sued Ms. N, the only way CCAS can protect its position and avoid being held liable for the entire loss is to claim contribution and indemnity from Ms. N. While some of the issues raised in the Third Party Claim are pleaded as part of the CCAS’s defence, the Third Party Claim itself is not a defence and serves a completely different purpose.
[32] While JTB’s father is not named as a third party by the CCAS, a party is not required to sue every tortfeasor who may have contributed. In any event, as has been noted on Ms. N’s behalf, she can commence a Fourth Party Claim should she believe that JTB’s father is a necessary party.
[33] I do not accept Ms. N’s contention that the CCAS’s commencement of the Third Party Claim was for the purpose of conflicting her out or excluding her as a litigation guardian for JTB. I accept the submissions of the CCAS that Ms. N is already in a conflict of interest position in terms of acting as JTB’s litigation guardian in the Main Action, given the issues raised therein and the nature of the allegations and her involvement in the events that underlie the Statement of Claim. Further, certain paragraphs of the Statement of Claim specifically engage Ms. N such that it is most likely she will be a necessary witness, for instance, paragraphs 22, 25 and 32 which state:
While [GPN] may have consented from time to time to the continuation of orders relating to the temporary care and custody of the children, such consent was obtained through coercion and duress, and in circumstances where [GPN] was unduly taken advantage of, and not properly advised of her legal rights and remedies.
The continued separation of the children from [GPN], and the refusal of CCAS to otherwise permit [GPN] to have contact and familial relations with the children, when it knew that it had no evidence that [GPN] had ever abused, neglected or harmed either of the children, was unlawful and improper.
The children were wrongfully removed, detained and continuously separated from [GPN] for several years. In this time, they were deprived of access [to] their primary caregiver, namely, their mother. This all occurred without adequate notice to [GPN], without adequate investigation, and without probable cause or a reasonable basis to believe that continuing in the care of their mother presented an imminent danger to their lives or health.
[34] Nor do I find that the Third Party Claim is being used as a strategic maneuver to obtain an advantage in the litigation and to delay and frustrate the adjudication of the Main Action. As discussed above, the Third Party Claim serves a separate purpose and enables the CCAS to recover contribution and indemnity against Ms. N, which would not otherwise be possible.
[35] Ms. N has not met her onus of demonstrating that it is plain and obvious that the Third Party Claim cannot succeed. I find that the Third Party Claim is not frivolous, vexatious or an abuse of the court’s process.
[36] Accordingly, Ms. N’s motion to stay, dismiss or strike the Third Party Claim pursuant to Rule 21.01(3)(d) and/or Rule 25.11 is dismissed.
(b) Should the Third Party Claim be struck pursuant to Rule 21.01(1(b), without leave to amend, for failing to plead a reasonable cause of action?
[37] Pursuant to Rule 21.01(b) of the Rules of Civil Procedure, a pleading may be struck if: (i) allegations are pled that do not give rise to a recognized cause of action; (ii) the necessary elements of a recognized cause of action are not pled; or (iii) the allegations pled are simply conjecture, assumptions, or speculation unsupported by facts, or mere conclusions of law: Braysan Properties Inc. “In Trust” v. Muchos et. al., 2022 ONSC 3703, at para. 49; and Deep v. Ontario, at paras. 33-34.
[38] If the cause of action pleaded has been recognized in law, the plaintiff must plead all essential elements and provide a concise statement of the material facts it intends to rely on for the claim. In determining whether pleadings should be struck, the court must read the pleadings generously with allowances for drafting deficiencies. The facts pleaded should be assumed to be proven: Braysan Properties, at paras. 50-51.
[39] In a motion under Rule 21.01(1)(b), since the facts in the claim are accepted as proven, the court is left to consider the legal sufficiency of the plaintiff’s claim as pleaded, subject to the caveat that allegations based on assumptions or speculation do not need to be accepted as true: Braysan Properties, at paras. 53.
[40] If the essential elements have not been pled, absent exceptional circumstances, leave to amend pleadings should generally be granted: Thelwell v. Elaschuk, 2020 ONSC 340, at para. 87; and Asghar v. Toronto Police Services Board, 2019 ONCA 479, at para. 9.
Discussion
[41] The paragraphs in the Third Party Claim, which incorporates the Statement of Defence, contain sufficient particulars to identify the essential elements for the CCAS’s claim for contribution and indemnity under the Negligence Act and the common law, and are sufficient to demonstrate why the CCAS alleges that Ms. N’s actions make her liable for the Plaintiff’s injuries or damages. I am satisfied that material facts in support of the Third Party Claim have been pleaded and a reasonable cause of action has been shown. The alleged breach of duty or negligence by Ms. N could have contributed to the Plaintiff's injuries independently of the CCAS’s actions. That is, for instance, to the extent that Ms. N’s actions caused or contributed to the making of the court orders relating to JTB’s care and supervision, she arguably created or enabled the situation. In such circumstances, there could be a claim for contribution or indemnity.
[42] The basis for seeking contribution from Ms. N is not a duty owed by her to the CCAS, but rather a duty owed by her to the Plaintiff, the breach of which had contributed to his injuries. If the CCAS is able to establish negligence on the part of Ms. N, as JTB’s mother, which contributed to his injuries, then the CCAS is justified in taking third party proceedings. Further, this is not a situation where the alleged negligence of Ms. N is attributable to the Plaintiff in that such negligence would stand as a defence (i.e., pleaded as a contributory negligence defence). If the negligence pleaded of Ms. N, as the Third Party, is not attributable to the Plaintiff, then the Third Party Claim is needed and discloses a reasonable cause of action: Basile v. Home Depot Canada GP ULC, 2017 ONSC 728, at paras. 16-17.
[43] I am satisfied that the CCAS, on a prima facie basis, has established a reasonable cause of action for contribution and indemnity that has a causal connection with a claim advanced by the Plaintiff. Accordingly, I decline to strike the Third Party Claim under Rule 21.01(1)(b).
(c) Should an order be made under Rule 29.09 because the Third Party Claim puts the Main Action in jeopardy, so as to prejudice the Plaintiff or unnecessarily delay the proceeding?
[44] Rule 29.09 of the Rules of Civil Procedure provides that a plaintiff is not to be prejudiced or unnecessarily delayed by reason of a third party claim, and on motion by the plaintiff the court may make such order or impose such terms, including an order that the third party claim proceed as a separate action, as are necessary to prevent prejudice or delay where that may be done without injustice to the defendant or the third party.
[45] The CCAS submits that this aspect of Ms. N’s motion is not properly before the court since it is not being made by the Plaintiff, JTB, as required by the rule. The CCAS notes that the Plaintiff has not brought any motion nor served any materials for the within motion.
[46] Ms. N asks that the unique circumstances of the case – in that she is the Plaintiff’s Litigation Guardian as well as the Third Party – be considered when applying the rule. Although this motion has not been brought by the Plaintiff, JTB, the court should construe the rules liberally to secure the just, most expeditious and least expensive determination of the proceeding on its merits.
Discussion
[47] I agree with the CCAS’s contention in this regard. In any event, however, I find that the Third Party Claim will not cause unnecessary delay to the Main Action as the issues raised therein are directly related to the issues raised in the Third Party Claim and so both proceedings will involve much of the same or similar evidence. I acknowledge Ramsay J.’s decision in Serravalle v. Duggan, 2023 ONSC 933, at paras. 12-14, wherein he held that the objective of a third party claim is to attempt to accomplish a number of tasks: to avoid a multiplicity of actions; to avoid contradictory or inconsistent findings in two different actions on the same facts; to allow the third party to defend the plaintiff's claim; to save costs and to prevent the plaintiff from enforcing a judgment against the defendant before the third party issue is determined. In my view, all of these same goals should apply in the within case and having the Third Party Claim proceed together, at the same time, will achieve them.
[48] In the circumstances, I am not persuaded that there is any prejudice or unnecessary delay caused by the Third Party Claim. Accordingly, I decline to make any order under Rule 29.09.
(d) Should Ms. N be removed as JTB’s Litigation Guardian and the OCL be appointed in her place?
[49] The CCAS takes the position that Ms. N is properly disqualified from acting as JTB’s Litigation Guardian not because of the Third Party Claim, but because of the facts that underpin the Main Action. It cites the decision Murray v. Children’s Centre Thunder Bay & Murray, 2010 ONSC 845, wherein the parents of the disabled plaintiff were third parties in an action with allegations having been made against them that they were negligent in the care and treatment of the plaintiff, their son. The Court there found that, as third parties, the parents were not appropriate persons to act as the plaintiff's litigation guardians as they held a legal interest in the proceeding adverse to that of the plaintiff.
[50] Ms. N contends that, if she is removed as Litigation Guardian, there is no other person prepared or willing to act as JTB’s litigation guardian and so JTB’s claim will potentially be prevented from continuing and being litigated on its merits.
Discussion
[51] The role of the litigation guardian is to take steps in the litigation that the person under disability is unable to do, including dealing with counsel and the court. Rule 7.05(1) of the Rules of Civil Procedure provides that “anything that a party in a proceeding is required or authorized to do may be done by the party’s litigation guardian”. A litigation guardian has a statutory duty to diligently attend to and protect the interests of the person under disability. Rule 7.05(2) indicates: “A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim”: Serravalle v. Duggan, 2023 ONSC 933.
[52] Essentially, the litigation guardian must be “indifferent” to the outcome of the litigation, meaning that the litigation guardian cannot possess a conflict-of-interest as it relates to the interests of the person under disability and they must be capable of providing a neutral and unbiased assessment of the legal situation: Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38, at para. 20.
[53] In my view, as in Murray, given Ms. N’s involvement in the underlying facts upon which JTB’s action and the CCAS’s defence are based, and given the Third Party Claim, I find that Ms. N has a legal interest in the proceeding adverse to that of the Plaintiff. To the extent that Ms. N could be found liable for any of JTB’s damages, due to her actions or failures to act, which necessitated the apprehension of the Plaintiff and his separation from her, she would have an interest in minimizing those damages and therefore be adverse in interest to the interests of JTB in the litigation.
[54] There are statutory duties imposed on litigation guardians to protect and advance the interest of a person under a disability. I am satisfied that Ms. N would not be able to discharge those duties at the same time that she is a party adverse in interest and while her interests conflict with those of the Plaintiff.
[55] Accordingly, I find that Ms. N is not the appropriate person to act as litigation guardian for JTB in the within proceeding and that she should be removed as JTB’s Litigation Guardian.
[56] Ms. N’s removal as Litigation Guardian will not prejudice the Plaintiff in terms of his ability to prosecute the action. This is because, pursuant to Rule 7.04(1)(a), if there is in fact no other proper person who is willing and able to act as litigation guardian for JTB, the OCL can be so appointed.
[57] While Ms. N has attested that there is no other person who could act as litigation guardian for JTB, based on the record before me, I am not persuaded that this inquiry has been fulsomely canvassed to date. In my view, the OCL should also be given a chance to review and consider the issue, and decide whether it will consent to being appointed as litigation guardian for JTB or make submissions regarding the issue.
[58] Accordingly, I grant the OCL’s request to adjourn this aspect of the motion as it relates to the issue of appointing the OCL to act as litigation guardian for JTB. As noted earlier in these reasons, Ms. N supports the OCL’s adjournment request.
Disposition
[59] Ms. N’s motion is dismissed in its entirety. In the circumstances, I decline to order costs on the motion.
[60] The CCAS’s motion is granted, in part, as follows:
(a) As it relates to the removal of Ms. N as Litigation Guardian, that part of the motion is granted. (b) As it relates to the appointment of the OCL as litigation guardian for JTB, that part of the motion is adjourned sine die, to be brought back on by any of the parties with 7 days’ notice to the others, including the OCL, if necessary. (c) The issue of costs of the CCAS motion are reserved to the Motion Judge hearing the OCL appointment part of the motion. (d) I am not seized.
MacNEIL J. Released: January 16, 2024