Court File and Parties

Court File No.: CV-22-00680949-00CP
Date: 2025-05-21
Court: Superior Court of Justice – Ontario

Plaintiffs: G.G. and W.W.
Defendants:
His Majesty the King in Right of the Province of Ontario, Native Child and Family Services of Toronto, Linck Child, Youth and Family Support, Brant Family and Children’s Services, Bruce Grey Child & Family Services, Children’s Aid Society of Hamilton, Catholic Children’s Aid Society of Hamilton, Children’s Aid Society of Toronto, Children’s Aid Society of the District of Nipissing and Parry Sound, Children’s Aid Society of Algoma, Children’s Aid Society of London and Middlesex, Children’s Aid Society of Oxford County, Dufferin Child & Family Services, Durham Children’s Aid Society, Family and Children’s Services of Frontenac, Lennox and Addington, Family and Children’s Services of Lanark, Leeds and Grenville, Family and Children’s Services of Guelph and Wellington County, Family and Children’s Services Niagara, Family and Children’s Services of Renfrew County, Family & Children’s Services of St. Thomas and Elgin, Family & Children’s Services of the Waterloo Region, Halton Children’s Aid Society, Highland Shores Children’s Aid, Huron-Perth Children’s Aid Society, Jewish Family and Child Service, Kawartha-Haliburton Children’s Aid Society, Kenora-Rainy River Districts Child and Family Services, North Eastern Ontario Family and Children’s Services, Peel Children’s Aid Society, Sarnia-Lambton Children’s Aid Society, Simcoe Muskoka Family Connexions, The Children’s Aid Society of Haldimand and Norfolk, The Children’s Aid Society of Ottawa, The Children’s Aid Society of the District of Thunder Bay, The Children’s Aid Society of the Districts of Sudbury and Manitoulin, The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry, Valoris for Children and Adults of Prescott Russell, Windsor-Essex Children’s Aid Society, York Region Children’s Aid Society, Akwesasne Child and Family Services, Anishinaabe Abinoojii Family Services, Catholic Children’s Aid Society of Toronto, Dilico Anishinabek Family Care, Dnaagdawenmag Binnoojiiyag Child & Family Services, Kina Gbezhgomi Child & Family Services, Kunuwanimano Child & Family Services, Niijaansinaanik Child and Family Services, Nogdawindamin Family and Community Services, Ogwaden:deo, Payukotayno James and Hudson Bay Family Services, Tikinagan Child and Family Services, and Weechi-it-te-win.

Before: Edward M. Morgan

Counsel:
For the Plaintiffs: Margaret Waddell, Karine Bédard, Tina Yang, and Melanie Anderson
For the Defendants, Children’s Aid Societies: Elizabeth Bowker, Jessica DiFederico, Shadi Katirai, Grace Murdoch, Yael Kogan, and Thomas Russell
For the Defendant, His Majesty the King in Right of Ontario: Victoria Yankou, Nancy Ghobrial, Spencer Nestico-Semianiw, Waleed Malik, and Elizabeth Guilbault

Heard: April 2-4, 2025

Certification Motion

I. Overview of the Claim

Since prior to the start of the proposed class period in 2007, children’s aid societies (“CASs”) in Ontario issued so-called “Birth Alerts” – notifications to hospitals and other healthcare providers regarding pregnancies. They were issued to identify to medical staff that the patient raised a child protection concern in respect of the unborn child, and to ensure that the relevant CAS would be notified when the birth took place.

On July 14, 2020, the Ministry of Children, Community and Social Services (the “Ministry”), issued Policy Directive CW 005-20, requiring CASs to cease issuing Birth Alerts. The cessation of Birth Alerts reflected an awareness that these notices exceeded the mandate of CASs pursuant to the Child, Youth and Family Services Act, 2017 and its immediate predecessor, the Child and Family Services Act. Those statutes define children as persons under the age of 18 years old.

Plaintiffs’ counsel point out that the definition of “child” in the CYFSA and its predecessor reflect established jurisprudence to the effect that fetuses are not legal persons possessing rights: Tremblay v. Daigle, [1989] 2 S.C.R. 530. Accordingly, regardless of any potential harm to the fetus, child protection agencies have no jurisdiction to act in protection of, or, by extension, to require warnings in respect of, the unborn: Winnipeg Child and Family Services (Northwest Area) v. G (DF), [1997] 3 S.C.R. 925.

The Policy Directive also required CASs to issue letters notifying the healthcare practitioners of this cessation, and provided them with a template for this correspondence. The Ministry required the advisory letters to include information from the recently published Final Report on Missing and Murdered Indigenous Women and Girls, 2019 (the “MMIWG Report”), which had determined that Birth Alerts disproportionately impacted Indigenous mothers and described Birth Alerts as “racist”, “discriminatory”, and a “violation of the rights of the child, the mother, and the community”.

The Ministry’s press release of July 14, 2020 further acknowledged that Birth Alerts disproportionately affect racialized and marginalized parents more generally. In particular, the Ministry took note that expectant parents were potentially deterred from seeking medical help or prenatal care out of fear of having a Birth Alert issued.

The Plaintiffs move under section 5(1) of the Class Proceedings Act, 1992, to certify a class action in respect of the issuance of Birth Alerts by the forty-nine CASs named as Defendants in this action. They also seek to certify their claim against the Province of Ontario for its alleged authorization of and participation in the issuance of Birth Alerts. The claims incorporate a number of causes of action at common law together with claims for damages for breach of sections 7 and 15 of the Charter.

For the reasons that follow, the action is certified as against Ontario but, as presently structured, not as against the CAS Defendants.

II. Organization of Ontario’s CASs

CASs provide child welfare services in Ontario. The CAS Defendants, who represent 49 of the 50 CASs in the province (the 50th one having been formed after the proposed class period), are each formally designated as a CAS under the CYFSA and are funded by the Ministry. The evidence in the record demonstrates that the CAS Defendants serve a broad range of constituencies and regions, including Indigenous as well as non-Indigenous communities, urban as well as rural areas, and religious communities.

Importantly, each CAS is a separately incorporated independent entity, with its own articles and set of by-laws, its own board of directors and corporate officers, etc. The record further establishes that the CAS Defendants have each developed their own policies and procedures, unique to the needs and circumstances of the communities they serve, although the overarching policy mandate of all CASs is to promote the best interests of the children in its care.

The more specific function of CASs under the relevant legislation is to deliver provincially regulated child protection services. This includes investigating allegations and gathering evidence as to whether children may be in need of protection, and providing guidance and counselling to families for protection.

The province itself does not deliver child welfare services. Rather, the record establishes that the Ministry provides high-level oversight for the child welfare system. This role involves Ministry personnel in establishing strategic policy, developing legislation and regulations, allocating funding, and licensing and inspecting societies pursuant to legislation, regulations, and standards. The Ministry does not get involved in any given child protection investigation or any given case management decision made by CAS regarding a specific child who may be in need of protection.

Even more specifically, CASs have developed their own protocols and procedures for issuing Birth Alerts, and individual Birth Alerts were issued by a CAS without any direction from or coordination with each other or the Ministry. The evidence establishes that the Ministry had no involvement in individual case-level decisions, and that no one CAS had responsibility for, or involvement in, individual case-level decisions of another. Accordingly, neither the Ministry nor other CASs were informed when a CAS issued a Birth Alert.

The Plaintiffs acknowledge in their pleading that Birth Alerts were issued by individual CASs acting on their own. The Amended Statement of Claim states that they “have been issued based solely on the discretion of each individual [CAS] and its employees or agents.” Although in argument the Plaintiffs have put forward the view that CASs took direction from the Ministry, or coordinated with each other, there is no evidence of any such direction or coordination in issuing their individual Birth Alerts.

What the Plaintiffs point to is a series of documents which indicate that Ontario provided high level guidance for Birth Alerts. These documents include, first and foremost, the Eligibility Spectrum, and secondarily, the Child Protection Standards (which incorporate the Eligibility Spectrum), the Risk Assessment Model, and the Provincial/Territorial Protocol. These instruments set out a non-exhaustive list of what CASs are advised and not advised to do in various situations. All parties agree, however, that they do not limit the exercise of discretion or judgment by a CAS in applying its child protection expertise.

It appears from the evidence that there was never an overarching authority for issuing Birth Alerts. In fact, there is no evidence of any real direction or instruction on the use of Birth Alerts by the Ministry until mid-2020, when it issued the Directive to cease the practice. Although the Plaintiffs assert that Birth Alerts were a product of a top-down direction given to CASs, that appears to be a bald assertion. There is no indication of any “top-down” direction to agencies on whether, how, or when to issue this type of notice; each CAS was left to determine this on its own. Indeed, there is no evidence in the record of a Birth Alert system or “scheme”, as Plaintiffs’ counsel put it, imposed by the Ministry on CASs in Ontario.

[Section continues with detailed factual findings about the independence and lack of coordination among CASs, the role of the OACAS, and the Ministry’s oversight.]

III. The Certification Criteria

A) Section 5(1)(a) of the CPA – Cause of Action

[Detailed legal analysis follows, including the application of the Ragoonanan principle, the requirements for conspiracy, negligence, and Charter claims, and the distinction between claims against Ontario and the CASs.]

IV. Disposition

Certification is granted as against Ontario.

The Plaintiffs are appointed representative Plaintiffs, and Plaintiffs’ counsel are confirmed as class counsel. The certified causes of action are negligence, breach of section 7 of the Charter, and breach of section 15 of the Charter. The class and sub-classes are defined as in paragraphs 130-131 above. The certified common issues are Common Issues #1, 2, 6, 7, 8, 11, 12, 13, 14, 19, and 20, with modifications as explained in paragraphs 137-149 above.

The motion for certification is dismissed as against the CAS Defendants.

The Plaintiffs are at liberty to discontinue the action as against the CAS Defendants, without costs, and to commence new proposed class actions against each of the CAS Defendants provided that a representative Plaintiff with a claim against the particular CAS is named for any such new action. Any future certification motions arising from a standalone claim against one of the present CAS Defendants may make use of the evidence, including all affidavits, exhibits, and cross-examinations, contained in the present record.

V. Costs

The parties may make written submissions on costs. I would ask counsel for the Plaintiffs to email brief submissions to my assistant within 10 days of today, and counsel for the CAS Defendants to email brief submissions to my assistant within 10 days of receiving the Plaintiff’s submissions, and counsel for Ontario to email brief submissions to my assistant within 10 days of receiving the CAS Defendants’ submissions.

Date: May 21, 2025
Edward M. Morgan