COURT FILE Nos.: CV-22-00687148-0000 CV-23-00699800-0000 CV-22-00691770-0000 CV-23-00704793-0000 CV-16-563305 DATE: 20241210

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dr. Gideon Koren -and- Children’s Aid Society of the Regional Municipality of Waterloo

AND:

Dr. Gideon Koren -and- Catholic Children’s Aid Society of Hamilton

AND:

Dr. Gideon Koren -and- Children’s Aid Society of the Niagara Region

AND:

Hospital for Sick Children and Joey Gareri -and- The Children’s Aid Society of the Niagara Region

AND:

Y.M. -and- His Majesty the King in Right of Ontario, The Catholic Children’s Aid Society of Toronto, the Hospital for Sick Children, Child Protections Worker(s) John Doe/Jane Doe, Gideon Koren, Joey Gareri, Viaguard Inc., also known as Accu-Metrics, Harvey Tenenbaum and Kyle Tsui

BEFORE: Merritt J.

COUNSEL: Erica Baron, Aya Schechner, Jennifer Arduini, Counsel for the Plaintiff Dr. Gideon Koren Meghan Payne, Logan Crowell, Counsel for the Plaintiff HSC Elizabeth Bowker, Counsel for the CAS Defendants

HEARD: October 31 and November 1, 2024

ENDORSEMENT

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re identifying child -- No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Prohibition re identifying person charged -- The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 (3) Offences re publication -- A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

OVERVIEW

[1] As the Case Management judge for the numerous claims (collectively the “Motherisk Cases”) arising from the hair follicle testing done at the Motherisk Drug Testing Laboratory (“MDTL”, “Motherisk” or the “lab”) at the Hospital for Sick Children (“HSC”), where Dr. Gideon Koren (“Dr. Koren”) was the Director, I heard motions to strike in four of the Motherisk Cases.

[2] In each of the four of the Motherisk Cases, the Children’s Aid Societies bring a motion to strike Dr. Koren’s claim or crossclaim for contribution and indemnity against them, pursuant to r. 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for failing to disclose a reasonable cause of action. In one case, the Children’s Aid Society of the Niagara Region also brought a motion to strike HSC’s claim for contribution and indemnity against it.

[3] The Rule 21 motions were brought in the following Motherisk Cases:

1. Motion by the Defendant Children’s Aid Society of the Regional Municipality of Waterloo to strike Dr. Koren’s claim in Koren v. CAS Waterloo CV-22-00687148-0000 arising out of the claim in CV-18-591059 (the “J.B. Action”) which was dismissed against the CAS.
2. Motion by the Defendant Catholic Children’s Aid Society of Hamilton to strike Dr. Koren’s claim in Koren v. CCAS Hamilton CV-23-00699800-0000 arising out of the claim in CV-21-00662600-0000 (the “A.B. Action”) in which the plaintiffs restricted their claim to the several liability of the named defendants Dr. Koren, HSC and Joey Gareri (“Gareri”).
3. Motions by the Children’s Aid Society of the Niagara Region (“CAS Niagara”) to strike HSC’s claim in HSC v. CAS Niagara Region CV-23-00704793-0000 and Dr. Koren’s claim in Koren v. CAS Niagara Region CV-22-00691770-0000. Both actions arise out of the claim in CV-18-589318 (the “M.M. Action”) where there is a proposed Pierrenger agreement. Dr. Koren opposes the motion to strike his claim. HSC does not oppose the motion to strike its claim.
4. Motion by the Catholic Children’s Aid Society of Toronto to strike Dr. Koren’s crossclaim in Y.M. v. HMK et. al. CV-16-563305 (the “Y.M. Action” and collectively the “Actions”).

BACKGROUND

[4] The Motherisk Cases all arise from the use of results of hair follicle testing for drug and alcohol abuse which was done at MDTL at HSC. The test results were used in family and criminal cases and in child welfare investigations and proceedings. Ontario established an independent review following controversy about the reliability of MDTL’s test results. The review was conducted by The Honourable Susan Lang who delivered a report dealing with the reliability of the hair strand tests conducted at MDTL between 2005 and 2015 and the operation of MDTL during that time. In 2016, Ontario established the Motherisk Commission as an independent commission of inquiry to review various cases and produce a report.

[5] The Plaintiffs in the Motherisk Cases allege that there were flawed laboratory tests done at MDTL which were incorrect and unreliable, causing children to be wrongfully apprehended by the local CAS. The children were temporarily or permanently removed from the care of their parents. In some cases, the children were made Crown Wards and ultimately adopted. Most of the Plaintiffs are family members of children who were the subjects of Children’s Aid Societies’ investigations and child welfare proceedings. In some cases, the children themselves are named as Plaintiffs.

[6] The Defendants are HSC, Dr. Koren, His Majesty the King in Right of Ontario (“HMK”), as well as the various Children’s Aid Societies. Although different Children’s Aid Societies were involved depending on the geographic location, I refer to these Defendants collectively as the CAS. In some cases, individual employees are also named as Defendants.

[7] Dr. Koren is a clinical toxicologist who founded MDTL to study the effects of drug use during pregnancy by testing the hair of infants. He was the leader of the research team and Director of the lab.

[8] Initially, the Plaintiffs claimed that the CAS and HMK owed them a duty of care which was breached. The Plaintiffs claimed damages against HMK and the CAS for negligence, negligent investigation, and supervision, negligent and/or intentional infliction of mental distress, bad faith, breach of fiduciary duty of care, and misfeasance in public office. The Plaintiffs asserted there were breaches of ss. 7 and 8 of the Canadian Charter of Rights and Freedoms (“the Charter ”) because HMK allowed the CAS to demand bodily samples from the Plaintiffs which were improperly tested and breached Charter rights.

[9] The Plaintiffs claimed that HMK breached its duties to oversee the CAS, the HSC and MDTL, to make inquiries and satisfy itself that proper procedures were followed, to ensure the hair follicle tests were reliable and appropriate for use, and to prevent the CAS from using the hair tests once concerns about their reliability were raised.

[10] J.B. also alleged that HMK owed them a fiduciary duty of care having regard to the overrepresentation of Indigenous children in the system along with the history of Indigenous peoples, and that there was a duty to ensure that decisions were made recognizing the constitutional rights of the child, family, and the First Nation communities. J.B. also pleads there was a violation of s. 35 of the Constitution Act, 1982, and that the Truth and Reconciliation Commission’s Final Report was disregarded.

[11] The Plaintiffs claim that the various CAS were negligent in relying on the hair test results, assuming the accuracy of the results, failing to ensure testing was done in accordance with appropriate standards and the courts in the child welfare proceedings had reliable, accurate and complete information, and misleading the courts by calling expert evidence based on the MDTL testing. They also allege breaches of s. 7 of the Charter.

[12] In C.R. v. Ontario, 2019 ONSC 2734, [2019] O.J. No. 3863, aff’d 2020 ONCA 198, 445 D.L.R. (4th) 642, Wilson J. (as she then was) dismissed the claims of parents and family members against the CAS and HMK in the motions before her pursuant to r. 21 because it was plain and obvious, they could not succeed.

[13] Wilson J. held that the CAS owed a duty of care only to the children, not to the parents or family members. She also dismissed the actions against HMK because it did not owe a duty of care to the parents, families, or children. She further held that HMK had no liability for the MDTL testing in either its supervisory role over the CAS and the MDTL or as a result of various statutes governing the operations of hospitals and laboratories. She struck the additional actions against the CAS and HMK after concluding that they were based on a duty of care that did not exist.

DECISION

[14] The CAS’s motion is allowed in part. It is plain and obvious that Dr. Koren’s claim for contribution and indemnity against the CAS as a joint tortfeasor cannot succeed. The CAS’s motion to strike Dr. Koren’s claim for breach of contract is dismissed because it is not plain and obvious that Dr. Koren’s claims for damages against the CAS for breach of contract cannot succeed.

POSITIONS OF THE PARTIES

[15] The CAS says that Dr. Koren’s claim against it is really a tort claim dressed up as a claim for breach of contract. Dr. Koren has not pleaded the essential elements of a claim for breach of contract. Only concurrent tortfeasors can seek contribution and indemnity. Dr. Koren has no claim for contribution and indemnity because he will never be called upon to pay more than his fair share of the damages.

[16] Dr. Koren says that his claim for breach of contract is sufficiently pleaded, and if it is insufficient, he ought to be given leave to amend. Dr. Koren says that claims for contribution and indemnity are not limited to concurrent tortfeasors.

THE ISSUE

(1) Is it plain and obvious that Dr. Koren’s claims against the CAS for breach of contract and contribution and indemnity cannot succeed?

ANALYSIS

[17] Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 permits the court to strike a pleading on the ground that it discloses no reasonable cause of action. The test to be applied under r. 21.01(1)(b) is whether it is “plain and obvious” that the claim has no chance of success: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 17-19. “Plain and obvious” means “beyond doubt”: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 (S.C.C.), at pp. 20-21.

[18] The test under r. 21.01(1)(b) is stringent and imposes a very high threshold. Only claims that are certain to fail should be struck at the pleadings stage: Rausch v. Pickering (City), 2013 ONCA 740, 369 D.L.R. (4th) 691, at para. 34, citing Amato v. Welsh, 2013 ONCA 258, 362 D.L.R. (4th) 38, at paras. 32-33. The court should not strike a claim if there is a chance the plaintiff might succeed: Thelwell v. Toronto Police Services Board, 2020 ONSC 1803, at para. 52.

[19] The facts pleaded are to be taken as true and read generously: Ahmad v. Mehta, 2024 ONSC 3778, at para. 3.

[20] The court should err on the side of permitting an arguable claim, even if novel, to proceed to trial: Rausch, at para. 34, and Fernandez Leon v. Bayer Inc., 2023 ONCA 629, at para. 8. The claim should not be struck if there is a “germ or a scintilla of a cause of action”: Golden Oaks v. Lalonde, 2016 ONSC 5313, 133 O.R. (3d) 513, at para. 50, citing 1597203 Ontario Ltd. v. Ontario, [2007] O.J. No. 2349 (Ont. S.C.), at para. 12.

[21] Where a pleading is deficient and struck by the court, the court may grant leave to amend the pleading to allow the plaintiff to plead all the necessary ingredients of a cause of action: Hostman-Steinberg Limited v. 2049669 Ontario Inc. at para. 41. Leave should be granted where it is possible that the failure to allege an essential element is the result of an oversight: Golden Oaks, at paras. 53 and 56. Leave to amend should only be refused in the clearest of cases: Thelwell, at para. 52.

[22] Since Dr. Koren’s allegations are similar in the four cases in which these motions are brought, they were argued together. To some extent, the issues in each case overlap, but there are some differences. I will set out my reasons fully in relation to the J.B. action and address the issues unique to the other motions separately.

J.B. Action

[23] Dr. Koren’s claim stems from an action commenced by the Plaintiff J.B.

[24] J.B.’s claim relates to hair and meconium tests performed at MDTL at the request of the CAS in relation to child protection proceedings involving his child. Following the testing, J.B.’s child was removed from the mother’s care.

[25] J.B. sued HSC, Dr. Koren, Joey Gareri (together the “MDTL Defendants”) and the CAS alleging that MDTL’s testing was inadequate or unreliable and did not meet internationally recognized forensic standards and that MDTL failed to employ trained/qualified personnel. J.B. alleges that the Defendants were negligent and that they breached their fiduciary duties, his Charter rights and s. 35(1) of the Constitution Act.

[26] J.B.’s claims against the CAS were struck in C.R. because the CAS owes a duty of care only to the child who was the subject of the CAS’s investigation and no duty to J.B. as a family member because of the potential for a conflict of interest. Wilson J. dismissed all of J.B.’s claims against the CAS.

[27] The MDTL Defendants have defended J.B.’s claim.

[28] Dr. Koren issued a separate claim against the CAS for contribution and indemnity for any amounts found owing by him to J.B. Dr. Koren’s claim pleads and relies on his Statement of Defence in the J.B. Action and further alleges:

1. If J.B. suffered damages as alleged, such damages were caused by or contributed to by the negligence of the CAS;
2. The CAS sought the services of MDTL in relation to its involvement with J.B;
3. The CAS requested, directly or indirectly, that MDTL perform hair tests;
4. MDTL conducted hair tests screening for exposure to drugs of abuse and provided the CAS, directly or indirectly, with the results of the tests;
5. The CAS and MDTL had a contractual relationship;
6. The CAS had a duty to ensure that decisions and recommendations affecting the rights of J.B.’s child(ren) were based on clear, balanced, fair, and reasonable interpretations of all available evidence with respect to concerns about the safety and well-being of his child(ren);
7. The CAS was responsible to ensure that decisions affecting the interests and rights of J.B. and his child(ren) were made according to clear and consistent criteria, and subject to procedural safeguards; and
8. To the extent that the CAS misused the hair test results provided to them, Dr. Koren is entitled to claim contribution and indemnity from the CAS on the basis of their contractual relationship.

[29] These facts are not patently ridiculous or incapable of proof and therefore I must accept them as true for the purposes of this motion: Frank v. Legate, 2015 ONCA 631, 390 D.L.R. (4th) 39, at para. 36.

[30] Dr. Koren also pleads and relies on provisions of the Negligence Act, R.S.O. 1990, c. N.1 (the “Negligence Act”).

Contribution and Indemnity

[31] The CAS says that Dr. Koren’s claim for contribution and indemnity against it cannot succeed because the plaintiff has no claim against the CAS: C.R., at para. 86.

[32] Claims for contribution and indemnity normally arise between joint tortfeasors. The Negligence Act provides:

1. 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.
2. A tortfeasor may recover contribution or indemnity from any other tortfeasor who is, or would if sued have been, liable in respect of the damage to any person suffering damage as a result of a tort by settling with the person suffering such damage, and thereafter commencing or continuing action against such other tortfeasor, in which event the tortfeasor settling the damage shall satisfy the court that the amount of the settlement was reasonable, and in the event that the court finds the amount of the settlement was excessive it may fix the amount at which the claim should have been settle

[33] The Negligence Act makes concurrent tortfeasors jointly and severally liable and provides a right of contribution and indemnity between them provided that the person from whom contribution and indemnity is sought is also, or could be if sued, liable to the plaintiff: Lawson v. Viersen, 2012 ONCA 25, 108 O.R. (3d) 771, at para. 35.

[34] Where a defendant is not liable to the plaintiff, a claim for contribution and indemnity under the Negligence Act also fails: Giffels v. Eastern Construction, [1978] 2 S.C.R. 1346 (S.C.C.); Hiram Walker & Sons Ltd. v. Shaw, Stone & Webster Canada L.P., 2011 ONSC 6869, at para. 61; Niagara Regional Housing v. Trustees of Carleton United Church, et al., 2022 ONSC 3413, at para. 123.

[35] Dr. Koren has pleaded that if J.B. suffered damages as alleged, such damages were caused by or contributed to by the negligence of the CAS. To the extent that Dr. Koren claims contribution and indemnity under the Negligence Act from the CAS as a joint tortfeasor, it is plain and obvious that this claim cannot succeed and must be struck, as CAS is not liable to J.B. Counsel for Dr. Koren fairly conceded this point at the hearing of the motion.

[36] Claims for contribution and indemnity may also be made between contracting parties: Parkhill Excavating Limited v. Robert E. Young Construction Limited, 2017 ONSC 6903, at para. 153.

[37] Dr. Koren’s claim against the CAS is not just based on the allegation that the CAS caused J.B.’s damages; it is based on an independent claim in contract. Dr. Koren claims contribution and indemnity based on the contract between MDTL and CAS: para. 9 of Dr. Koren’s claim.

Breach of Contract

[38] The CAS says that Dr. Koren’s claim for contribution and indemnity based on breach of contract cannot succeed because he has not properly pleaded the existence of a contract and he is not a party to any contract.

[39] A pleading must contain the material facts upon which a party relies but not the evidence by which those facts will be proved at trial: r. 25.06(1).

[40] A claim for breach of contract must contain sufficient particulars to identify:

1. the parties to the contract;
2. the facts supporting privity of contract between the plaintiff and defendant;
3. the relevant terms of the contract;
4. which term or terms were breached; and
5. the damages that flow from the breach.

[41] Dr. Koren’s pleading identifies the existence and nature of the contract between MDTL and the CAS. It is sufficient that Dr. Koren pleaded that these parties were in a contractual relationship: paras. 3 and 9 of Dr. Koren’s claim.

[42] Dr. Koren pleaded that the contract was to perform hair tests: para. 2 of Dr. Koren’s claim.

[43] Dr. Koren has not pleaded that the implied terms of the contract included the obligations set out at para. 8 of his claim; however, he has pleaded that misuse of the test results gives rise to a claim for contribution and indemnity on the basis of the contractual relationship. I find that this is an indirect way of saying that it was an implied term of the contract that the CAS would use the test results properly and not misuse them. Also, as Dr. Koren submits, it is possible a court might find the obligation to indemnify arises from the implied duty of good faith in contracts.

[44] Dr. Koren has not explicitly pleaded that the CAS has breached the contract. However, it is implicit in the pleading. Until the facts are established in the J.B. action, it is not known whether Dr. Koren will be held liable for J.B.’s damages, it is unclear whether the CAS misused the test results, and it is not clear whether the CAS will be obligated to indemnify Dr. Koren. It is sufficient that he has pleaded that “[i]n the event Dr. Koren is found liable in the [J.B. Action], he seeks full contribution and indemnity from the CAS for any amounts he may be liable to pay [J.B.]

[45] Dr. Koren has pleaded that his damages are “any amounts that may be awarded to [J.B.] against Dr. Koren as a result of the claim initiated by [J.B.] in the [J.B. Action] which are caused or materially contributed to by CAS”.

[46] Dr. Koren does not expressly plead that he is a party to the contract. Dr. Koren submits that he has pleaded that he is a third party beneficiary of the contract between MDTL and the CAS and this claim is not doomed to fail.

[47] In his Statement of Defence in the J.B. Action, which he pleads and relies on in his claim against the CAS, Dr. Koren pleads that he joined HSC as a fellow in 1982, and in 1986 became a clinician scientist. He founded the Motherisk Program at HSC in 1985 to study the effects of drugs on infants in utero and during breastfeeding. Over the years, the program grew to include additional services. MDTL was founded as the research laboratory for the program. Dr. Koren was the Director of MDTL.

[48] In para. 9 of his claim, Dr. Koren “pleads that as MDTL and CAS were in a contractual relationship, to the extent that CAS misused hair test results provided to them, that Dr. Koren is entitled to claim contribution and indemnity from CAS on the basis of that contractual relationship.” Dr. Koren is pleading that he is entitled to the benefit of the contract between MDTL and the CAS.

[49] Dr. Koren now submits that when taken as a whole, his pleadings are a sufficient basis for a pleading of privity and that he is a third party beneficiary of the contract between the CAS and MDTL. He relies on the principled exception to privity of contract.

[50] Traditionally, the only circumstances where a third party could sue on a contract formed between two others is (1) where one of the parties to the agreement was the agent of the third party or (2) where the third party was the beneficiary of a trust in respect of that agreement: Greenwood Shopping Plaza Ltd. v. Beattie et al., [1980] 2 S.C.R. 228 (S.C.C.), at p. 238.

[51] In Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108 (S.C.C.), the Supreme Court elaborated a principled exception to the doctrine of privity that required (1) the parties to the agreement intending to extend the benefit of the agreement to the third party, and (2) the activities of the third party being the very activities contemplated as coming within the scope of that agreement: at para. 32.

[52] The doctrine of privity of contract has been relaxed and employees have been found to be third party beneficiaries of contracts between their employers and customers which have clauses limiting liability: London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299 (S.C.C.).

[53] The principled exception is not limited to cases involving limitation of liability: Madison Developments Ltd. v. Plan Electric Co. (1997), 36 O.R. (3d) 80 (Ont. C.A.); Tony and Jim’s Holdings Ltd. v. Silva (1999), 43 O.R. (3d) 633 (Ont. C.A.); Rocky Heights Developments v. Biber, 2019 ONSC 3593.

[54] It is not plain and obvious that Dr. Koren’s claim has a radical defect. There may be new exceptions to the doctrine of privity: Cameron-Gardos v. Crawford and Company (Canada) Inc., 2024 ONSC 700, at para. 80, citing Fraser River Pile & Dredge Ltd v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108 (S.C.C.), at para. 31.

[55] Dr. Koren has sufficiently pleaded that he is entitled to the benefit of the contract. It is possible that his claim for a principled exception to privity of contract might succeed. It is possible that Dr. Koren will be able to establish that the parties intended to extend to him the benefit of the contract between the CAS and MDTL because of his involvement in MDTL’s operations.

[56] It is not plain and obvious that Dr. Koren’s claim against the CAS for contribution and indemnity based on CAS’s breach of its contract with MTDL is doomed to fail.

A.B. Action

[57] Dr. Koren’s claim stems from an action commenced by the Plaintiff M.B. as litigation guardian for A.B. The claim originally included another plaintiff, but the claim of that plaintiff was discontinued.

[58] A.B.’s claim relates to hair and meconium tests performed at MDTL at the request of the CAS in relation to child protection proceedings involving him.

[59] A.B. sued HSC, Dr. Koren, and Joey Gareri (together the “MDTL Defendants”) alleging, among other things, that they were negligent in performing these tests. A.B. did not sue the CAS.

[60] A.B. has only sued the MDTL Defendants for their several liability. Paragraph 139 of A.B.’s claim provides as follows:

The plaintiffs plead only several liability for the defendants’ negligence. The plaintiffs plead that the claims of each plaintiff is limited solely to the damages that would be apportioned to the defendants in accordance with the relative degree of fault that is attributable to the defendants’ negligence. The [plaintiffs’] claim is against the defendants for those damages that are attributable to their proportionate degree of fault, and they do not seek any damages that are found to be attributable to the fault or negligence of any other person, or for which the defendants could claim contribution or indemnity.

[61] The MDTL Defendants have defended A.B.’s claim.

[62] Dr. Koren issued a separate claim against the CAS for contribution and indemnity for any amounts found owing by him to A.B. Dr. Koren’s claim pleads and relies on his Statement of Defence in the A.B. Action and further alleges that the CAS misused the drug test results in the child protection proceedings involving A.B.

[63] In his claim relating to the A.B. Action, Dr. Koren pleads:

1. The CAS sought the services of MDTL in relation to its involvement with A.B.;
2. The CAS requested, directly or indirectly, that MDTL perform hair tests;
3. MDTL conducted hair tests screening for exposure to drugs of abuse and provided the CAS, directly or indirectly, with the results of the tests;
4. The CAS and MDTL had a contractual relationship.

[64] Dr. Koren also expressly pleads that it was an implied term of the CAS’s contract with the MDTL that:

1. The CAS had an obligation to ensure that its decisions concerning A.B. were based on clear, balanced, fair and reasonable interpretations of all available evidence including the MDTL test results;
2. The CAS would ensure that decisions concerning A.B. were made according to clear and consistent criteria, subject to procedural safeguards; and,
3. If the CAS relied exclusively, or predominantly, or inappropriately on the results of MDTL hair tests then the CAS breached an implied term of the contract between the parties entitling MDTL and its employees to recover from the CAS any damages they are obliged to pay.

[65] These facts are not patently ridiculous or incapable of proof and therefore I accept them as true for the purposes of this motion.

[66] In his claim in relation to the A.B. Action, Dr. Koren’s pleading identifies the existence and nature of the contract, the implied terms of the contract, the manner in which he alleges the CAS breached the contract, and the damages claimed.

[67] For the reasons set out in paras. 31 to 56 above, I find that Dr. Koren’s pleading with respect to contribution and indemnity based on breach of contract is plausible and ought not to be struck.

[68] Dr. Koren has pleaded and relied on the Negligence Act. To the extent that Dr. Koren claims contribution and indemnity under the Negligence Act from the CAS as a joint tortfeasor, it is plain and obvious that this claim cannot succeed and must be struck.

[69] The CAS says that because A.B. limited his claim to the several liability of the MDTL Defendants, Dr. Koren’s claim for contribution and indemnity has no possibility of success because Dr. Koren does not face a situation where he could be held liable for fault apportioned to the CAS. I disagree because Dr. Koren’s claim is not based only the Negligence Act; it is based on breach of contract.

[70] The CAS relies on Taylor v. Canada (Minister of Health), 2009 ONCA 487, 95 O.R. (3d) 561 and Johnston v. The Sheila Morrison Schools, 2012 ONSC 1322, 20 C.P.C. (7th) 103, where claims for contribution and indemnity were dismissed because the plaintiffs had limited their claims to the several liability of the defendants. These cases are distinguishable because there, the claim for contribution and indemnity was based entirely on the third party’s alleged negligence. Here, Dr. Koren’s claim for contribution and indemnity is based on an independent contract with the CAS and obligations owed by the CAS to MDTL.

[71] The CAS has not cited any authority for the proposition that a plaintiff in a negligence action can limit the rights of parties to a contract. It is not plain and obvious that para. 139 of A.B.’s claim restricts Dr. Koren’s right to seek contribution and indemnity from the CAS as both a joint tortfeasor and his right to seek redress for the CAS’s breach of its contract with the MDTL Defendants. It is not beyond doubt that the claims for contribution and indemnity referred to in para. 139include Dr. Koren’s claim for damages for breach of contract.

M.M. Action

[72] Dr. Koren’s claim stems from an action commenced by the Plaintiffs M.M., D.W., and B.W. by his litigation guardian M.M.

[73] The Plaintiffs’ claims in the M.M. Action relate to hair and meconium tests performed at MDTL to screen for use of or exposure to alcohol and drugs of abuse. The Plaintiffs allege that some of the tests were performed at the request of the CAS in relation to child protection proceedings involving the minor plaintiff B.W.

[74] In the M.M. Action the Plaintiffs allege, among other things, that the MDTL Defendants were negligent in performing these tests.

[75] The claims of the Plaintiffs M.M. and D.W. against the CAS were struck in C.R. because the CAS owes a duty of care only to the child B.W. who was the subject of the CAS’s investigation, and no duty to family members. B.W.’s claims against the CAS were not struck in C.R because B.W. is the child who was the subject of the CAS’s investigation, and it was not argued that the CAS owes him no duty of care.

[76] The CAS and the MDTL Defendants have defended the M.M. Action.

[77] Dr. Koren commenced his claim in this action against the CAS, seeking contribution and indemnity for any and all amounts found to be owing by him to the Plaintiffs in the M.M. Action. As in the other actions, Dr. Koren’s claim alleges, among other things, that the CAS misused the drug test results in the child protection proceedings involving B.W. Dr. Koren pleads:

1. At all material times, the CAS sought the services of the MDTL in relation to its involvement with B.W.;
2. MDTL conducted hair tests to screen for B.W.’s exposure to drugs of abuse and provided the CAS, directly or indirectly, with the results of the tests;
3. The CAS and MDTL had a contractual relationship;
4. If the Plaintiffs suffered damages as alleged, such damages were caused by or contributed to by the negligence of the CAS;
5. The CAS requested, directly or indirectly, that MDTL perform hair tests;
6. The CAS had a duty to ensure that decisions and recommendations affecting B.W.’s rights were based on clear, balanced, fair and reasonable interpretations of all available evidence, including the MDTL test results, with respect to concerns about B.W.’s safety and well-being;
7. The CAS was responsible to ensure that decisions affecting B.W.’s interests and rights were made according to clear and consistent criteria, and subject to procedural safeguards;
8. If the CAS relied exclusively, predominantly, or inappropriately on the results of MDTL hair tests in making decisions about the custody of B.W. then the CAS fell below the standard of care required in making such decisions; and
9. To the extent that the CAS misused the hair test results, Dr. Koren is entitled to claim contribution and indemnity from the CAS on the basis of the contractual relationship.

[78] I accept these facts as true for the purposes of this motion.

[79] Dr. Koren also pleads and relies on the provisions of the Negligence Act.

[80] The Plaintiffs have entered into a tentative settlement of B.W.’s claim against the CAS subject to court approval (the “Pierringer Agreement”). B.W.’s claims against the MDTL Defendants are not settled.

[81] Pierringer agreements are a way for plaintiffs in multi-party litigation to settle with some, but not all, of the defendants. In a typical Pierringer agreement, the plaintiff settles with one or more of the defendants, with the result that the settling defendants are no longer required to defend the action against them. The plaintiff proceeds to trial against only the non-settling defendants. The settling defendants agree to pay a sum of money and they are released from the action. The plaintiff agrees to waive their right to claim from the non-settling defendants any portion of the loss ultimately attributed at trial to the fault of the settling defendants. The plaintiff amends the claim to pursue only the losses caused by the non-settling defendants, i.e., their several liability. The settling defendants are shielded from claims by the non-settling defendants for contribution and indemnity under the Negligence Act.

[82] In the present case, the payment of settlement funds by the CAS to B.W. pursuant to the Pierringer Agreement is contingent upon the CAS’s success in this motion, i.e., the dismissal of all of Dr. Koren’s claims against the CAS in relation to the M.M. action.

[83] This creates a chicken and egg problem. The Pierrenger Agreement is contingent on the CAS being successful on its r. 21 motion and the CAS’s argument on the r. 21 motion depends on the Pierrenger Agreement being implemented. Fortunately, however, Dr. Koren acknowledges that the r. 21 motion should be analyzed in the context of the proposed amendments to the claim which would be made as part of the Pierrenger Agreement (the “Proposed M.M. Claim”).

[84] The Proposed M.M. Claim provides:

10. On September 16, 2024, the CAS and the Plaintiff, B.W., entered into a Pierringer agreement to fully and finally settle the dispute between them.
11. The Plaintiffs have no remaining claims against the CAS.
12. The Plaintiffs limit their claims against the non-settling, Motherisk Defendants, to the damages, costs, and interest attributable only to the Motherisk Defendants’ several liability or proportionate share of joint liability to the Plaintiffs such that the Plaintiffs’ recovery shall be limited to the damages, costs and interest attributable to the Motherisk Defendants’ several liability, or proportionate share of joint liability, as may be proven against them at trial.
13. The Plaintiffs acknowledge that the Court at any trial of this action shall have the full authority to adjudicate upon the apportionment of fault, if any, among all defendants named in this Statement of Claim.

[85] The CAS says that if the claim is amended to limit Dr. Koren’s liability to his several liability, then he has no claim for contribution and indemnity in the context of the Draft Amended Claim in the M.M. Action because he will never be called upon to pay more than his proportionate share of the liability.

[86] Dr. Koren says that the terms of the Pierringer Agreement are irrelevant and cannot form part of the Court’s analysis on this motion because the only question is whether there is a legally tenable cause of action pleaded. One of the terms of the Pierrenger Agreement is that the Plaintiffs will limit the claim against Dr. Koren to his several liability and the Plaintiffs have brought a motion to amend the claim accordingly.

[87] Dr. Koren has pleaded that if M.M., D. W. and B.W. have suffered damages as alleged, such damages were caused by or contributed to by the negligence of the CAS. To the extent that Dr. Koren claims contribution and indemnity under the Negligence Act from the CAS as a joint tortfeasor, it is plain and obvious that this claim cannot succeed and must be struck, because the amended claim will make it so that he will never be called upon to pay more than his proportionate share of the liability.

[88] A claim for a contractual right of indemnity may succeed even where the plaintiff’s claim is amended to limit it to several liability of the non-settling defendant: Allianz v. Canada (Attorney General), 2017 ONSC 4484, 139 O.R. (3d) 424, at paras. 16 and 18.

[89] Apportionment is possible between multiple contract breachers, each of which has a separate contract with a plaintiff who suffers the same damage from concurrent breaches of those contracts: Gemeinhardt v. Babic, 2016 ONSC 4707, 68 R.P.R. (5th) 232, at paras. 595-596; Petersen Pontiac Buick GMC (Alta.) Ltd. v. Campbell, 2013 ABCA 251, 556 A.R. 118, at paras. 42 and 51-54.

[90] I have not been pointed to any case where a court has apportioned fault between a tortfeasor and a contract breacher. The CAS has not provided any authority for the proposition that the court can apportion liability between a tortfeasor who is liable to the plaintiff and a third party who has a contract with the defendant.

[91] It is important to keep in mind that in C.R., Wilson J. did not find that the CAS did not cause or contribute to the harm alleged by the Plaintiffs. Rather, she dismissed the claims against the CAS on the basis that, for policy reasons, the CAS owes no duty of care to family members, only the children who were the subject of protection proceedings.

[92] A trial judge might find Dr. Koren liable in negligence and also find that he is entitled to benefit from the contract between the CAS and MDTL, and that the CAS breached that contract. Dr. Koren may persuade the trial judge that the contract requires the CAS to indemnify him for some or all of the damages which he is required to pay to the Plaintiff. The answers to these questions are far from clear and depend in part on findings of fact. It should not be determined on a motion to strike a pleading.

[93] For these reasons and the reasons set out above with respect to Dr. Koren’s claim in relation to the J.B. Action at paras. 31 to 56, and the reasons set out above in relation to Dr. Koren’s claim in relation to the A.B. action at paras. 69 to 71, Dr. Koren’s claim for contribution and indemnity based on the CAS’s breach of contract is not incapable of success even if the Plaintiff’s claims in the M.M. Action are limited to Dr. Koren’s several liability.

[94] The CAS seeks alternative relief in the form of an order consolidating this action with the M.M. Action. To date, the claims have progressed through discoveries as if they were consolidated. Dr. Koren agrees that the two actions should be consolidated. I order that Dr. Koren’s action against the CAS bearing Court File No. CV-22-00691770-0000 is consolidated with the M.M. Action bearing Court File No. CV-18-589318.

[95] As set out above, HSC does not oppose the CAS’s motion to strike its claim. The CAS’s motion to strike HCS’s claim in CV-23-00704793-0000 is granted and the claim is struck.

Y.M. Action

[96] In this action the Plaintiff sued the MDTL Defendants, the CAS and others.

[97] The Plaintiff’s claim relates to hair and meconium tests performed at MDTL to screen for use of or exposure to alcohol and drugs of abuse. The tests were performed at the request of the CAS in relation to child protection proceedings involving the Plaintiff’s child.

[98] The Plaintiff alleges, among other things, that the MDTL Defendants were negligent in performing these tests.

[99] The MDTL Defendants have defended this action.

[100] Dr. Koren commenced a crossclaim against the CAS, seeking contribution and indemnity for any and all amounts found to be owing by him to the Plaintiff. Dr. Koren’s crossclaim alleges, among other things, that the CAS misused the drug test results in the child protection proceedings involving Y.M.’s child.

[101] Y.M.’s claim against the CAS was struck in C.R. because the CAS owes a duty of care only to her child who was the subject of the CAS’s investigation and no duty to her as the mother.

[102] Dr. Koren’s crossclaim alleges that if the Plaintiff has suffered any damages and if they were caused or contributed to by the negligence of the CAS then Dr. Koren claims against the CAS for contribution and indemnity. Dr. Koren pleads and relies on the Negligence Act.

[103] Dr. Koren’s crossclaim based on contribution and indemnity under the Negligence Act is doomed to fail for the reasons set out at paras. 31-35 above.

[104] As set out at para. 40 above, a claim for breach of contract must contain sufficient particulars to identify the parties, the facts supporting privity of contract, the relevant terms, which term or terms were breached, and the damages that flow from the breach.

[105] Dr. Koren’s pleading states:

1. The Plaintiff’s hair tests were completed by MDTL at the request of the CAS;
2. At the request of the CAS, MDTL provided a report interpreting the results of the Plaintiff’s hair tests;
3. The MDTL advised the CAS that the Plaintiff’s hair test results should be assessed in the context of other sources of evidence pertaining to the Plaintiff’s alleged substance abuse;
4. The CAS placed undue reliance on the Plaintiff’s hair test results despite having been warned by MDTL that the hair test results should be interpreted in conjunction with other evidence; and
5. That the CAS misrepresented the Plaintiff’s hair test results to the Court and/or others.

[106] Dr. Koren suggests that his crossclaim included a claim based on breach of an implied term of the CAS’s contract with the MDTL Defendants including him.

[107] I do not agree. In this pleading, Dr. Koren does not plead there was a contract.

[108] The CAS’s motion to dismiss Dr. Koren’s crossclaim in the Y.M. action is granted.

[109] However, this is not one of those clearest of cases where leave to amend should be refused. In this case, for the reasons set out above with respect to the other motions before me, it is not plain and obvious that Dr. Koren’s claim for contribution and indemnity against the CAS based on breach of contract is doomed to fail. Dr. Koren may succeed in establishing that a contract existed between CAS and all of the MDTL Defendants including him or that a principled exception to privity of contract applies and he is entitled to the benefit of that contract. He may succeed in establishing that the CAS breached that contract and that he is entitled to contribution and indemnity as a result of that breach.

[110] Dr. Koren is granted leave to amend the claim in Y.M.

CONCLUSION AND ORDERS

[111] The CAS’s motions to strike Dr. Koren’s claims for contribution and indemnity based on the Negligence Act are struck without leave to amend. I make these orders because these pleadings fail to disclose a reasonable cause of action and it would serve no purpose to grant leave to amend.

[112] The CAS’s motions to strike Dr. Koren’s claims for contribution and indemnity based on breach of contract are not struck. I make these orders because it is not plain and obvious that these claims will fail.

[113] The motion to strike HSC’s claim and the consolidation motion are unopposed.

[114] To summarize:

• The CAS’s motion to strike Dr. Koren’s claim in Koren v. CAS Waterloo CV-22-00687148-0000 arising out of the claim in the J.B. Action is granted in part. Dr. Koren’s claim for contribution and indemnity under the Negligence Act is struck without leave to amend. Dr. Koren’s claim for contribution and indemnity for breach of contract is not struck.
• The CAS’s motion to strike Dr. Koren’s claim in Koren v. CCAS Hamilton CV-23-00699800-0000 arising out of the claim in the A.B. Action is granted in part. Dr. Koren’s claim for contribution and indemnity under the Negligence Act is struck without leave to amend. Dr. Koren’s claim for contribution and indemnity for breach of contract is not struck.
• The CAS’s motion to strike Dr. Koren’s claim in Koren v. CAS Niagara Region CV-22-00691770-0000 arising out of the claim in the M.M. Action is granted in part. Dr. Koren’s claim for contribution and indemnity under the Negligence Act is struck without leave to amend. Dr. Koren’s claim for contribution and indemnity for breach of contract is not struck.
• The CAS’s motion for consolidation is granted. Dr. Koren’s action against the CAS bearing Court File No. CV-22-00691770-0000 is consolidated with the M.M. Action bearing Court File No. CV-18-589318.
• The CAS’s motion to strike HCS’s claim in CV-23-00704793-0000 is granted and the claim is struck without leave to amend.
• The CAS’s motion to strike Dr. Koren’s crossclaim in Y.M. v HMK et. al. CV-16-563305 is granted with leave to amend to plead contribution and indemnity based on breach of contract.

COSTS

[115] I encourage the parties to agree on costs. If they cannot agree, I will consider brief written submissions. These costs submissions shall not exceed five pages in length (not including any bill of costs or offers to settle).

[116] Any party claiming costs shall file their written submissions within ten days of the date of these reasons. Any responding submissions shall be delivered within five days of receipt of the other party’s costs submissions. Any reply to submissions shall be delivered within three days of receipt of responding submissions and shall be no more than three pages long.

[117] Costs submissions shall be filed with the court and delivered to me by way of email to my Judicial Assistant.

Merritt J. Date: December 10, 2024