Court File and Parties

Court File No.: CV-25-00735614 Date: 2025-08-06 Superior Court of Justice - Ontario

Re: Symon Anthony Miller, Plaintiff And: Children's Aid Society of Toronto and Durham Children's Aid Society, Defendants

Before: Schabas J.

Counsel:

• Symon Anthony Miller, self-represented
• Casey Myers for Children's Aid Society of Toronto
• Dakota Forster for Durham Children's Aid Society

Heard: August 1, 2025

Reasons on Motion to Strike

[1] This is a motion by the defendants seeking to have the court strike out the action, without leave to amend, pursuant to Rules 21 and 25 of the Rules of Civil Procedure.

[2] In January 2025, the plaintiff commenced this action against two children's aid societies over their involvement in seeking child protection orders affecting the plaintiff's child in 2017. The statement of claim asserts, among other things, negligence, breach of fiduciary duty, misfeasance in public office, abuse of process, intentional infliction of emotional distress, and breach of the plaintiff's Charter rights. Although the defendants have filed statements of defence, they did so to avoid being noted in default. They have pleaded limitations defences but do not raise them on this motion.

[3] Rather, the defendants submit that the Statement of Claim contains no reasonable cause of action, either because the pleaded claims are untenable or because necessary elements are not pleaded. Furthermore, they submit that the Statement of Claim violates the rules of pleadings and is replete with allegations that are scandalous, vexatious, and amount to an abuse of process.

[4] Although this motion was brought in March 2025, and a schedule for the exchange of material and factums was set by the court, the only material filed by the plaintiff on the motion was a draft Amended Statement of Claim which was sent to the defendants and the court the evening before the hearing of the motion. Despite the late service of the proposed amended pleading, the defendants addressed the new document, arguing that the amendments do not solve the fatal flaws in the action. My decision also addresses the draft Amended Statement of Claim.

[5] For the reasons that follow, I have concluded that the action should be struck out without leave to amend.

The Pleading

[6] The draft Amended Statement of Claim states that in January 2017 the defendants removed a new-born child from the care of the child's mother, who was the plaintiff's "common law partner" at the time. The plaintiff states in paragraph 3.4 of the draft pleading that "[t]he removal was effected by the Defendants through the presentation of falsified, misleading, and malicious evidence to the family court, resulting in an unlawful child removal order and a hospital ban, banning The Plaintiff Mr. Miller from the hospital where his child … was being born, with the assistance of local police, which was also through the Defendant's presentation of falsified evidence, misleading & malicious evidence to the family court."

[7] In paragraph 3.5 the plaintiff pleads that "[t]he Defendants' actions were taken without proper investigation, without affording the Plaintiff or [the mother] procedural fairness, and in breach of their statutory / common law duties." In paragraph 3.6 he states that the defendants acted "with malice, bad faith and a reckless disregard for the rights of the Plaintiff", the mother of the child, and "their children."

[8] The plaintiff states in paragraph 3.7 that the defendants' conduct has caused him and his family "significant pain and suffering, Loss of Family Relationship (Loss of Care, Guidance, and Companionship), loss of common-law companionship with children, emotional distress, psychological impact, loss of enjoyment of life, and impairment of family relationships, reputational harm, and other damages particularized further, all resulting from the incident."

[9] Several causes of action are pleaded, including negligence, breach of fiduciary duty, breach of statutory duty, malicious prosecution, abuse of process, misfeasance in public office, intentional infliction of mental suffering, conspiracy, defamation and breaches of ss. 7 and 15 of the Canadian Charter of Rights and Freedoms.

[10] The draft Amended Statement of Claim provides little detail of the specific wrongful acts alleged. It makes general assertions, such as that agents of the defendants "fraudulently obtained a warrant for apprehension", and by "falsely alleged grounds for apprehension, including substance use, mental health issues and prostitution." The draft pleading also attaches two pages of what appear to be written legal submissions filed in child protection proceedings.

[11] These general factual assertions are not linked to the specific causes of action, nor is any detail provided of the specific accusations. It is difficult to know what facts are being relied on for each cause of action. As Kalajdzic J. recently noted in a similar context, pleadings cannot create a "guessing game" about which facts apply to the various causes of action: Patterson v. Eastern Residential Services Inc. et al. and Perron et al., 2025 ONSC 4385 at para. 22, citing Mancuso v. Canada (Minister of National Health and Welfare), 2015 FCA 227, 476 N.R. 219, at para. 16.

The Legal Framework

[12] The defendants rely on Rule 21.01(1)(b) which provides:

A party may move before a judge,

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence.

[13] On a Rule 21 motion, no evidence is admissible without leave and leave was not sought. The matter, therefore, must be decided on the pleading, taking the facts asserted in the pleading as true. The purpose of Rule 21 is to weed out hopeless claims, where it is "plain and obvious that the claim has no reasonable prospect of success": Paton Estate v. Ontario Lottery and Gaming Corporation, 2016 ONCA 458, at para. 12. Consequently, on this motion I must decide, on the basis of the facts pleaded in the draft Amended Statement of Claim, whether as a matter of law the action is doomed to fail.

[14] The defendants also rely on Rule 25. Rule 25.06(1) which requires that every pleading contain a concise statement of the material facts which establish the elements of each cause of action. Where malice or intent is alleged, Rule 25.06(8) requires that the pleading contain full particulars. Rule 25.11 states:

The court may strike out or expunge all or part of a pleading or other document, 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.

[15] If the facts pleaded do not support a cause of action, or the cause of action is not recognized in law, the action may be struck out.

[16] A plaintiff may, however, be granted leave to amend. Pleadings are to be read generously and amendments will only be denied where it is "plain and obvious" that no tenable cause of action exists, such that any amendments will just lead to another motion to strike: Mitchell v. Lewis, 2016 ONCA 903, 134 O.R. (3d) 524, at para. 21.

Analysis

[17] In my view the action is an abuse of process. Further, the draft Amended Statement of Claim fails to disclose a reasonable cause of action, and the specific causes of action are untenable in law.

The Action is a Collateral Attack on Court Orders

[18] The gist of the plaintiff's complaint is that the defendants committed tortious wrongs in obtaining court orders affecting the child. The harm to the plaintiff was a result of those court orders. There is no evidence that the court orders have been set aside, or of any finding in those proceedings that the orders ought not to have been made, or were obtained through fraud, falsehoods, misrepresentations or any other improper actions by the defendants. This action, therefore, constitutes an improper collateral attack on existing court orders. As the Supreme Court stated in Garland v Consumers' Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at paras. 71-72:

The doctrine of collateral attack prevents a party from undermining previous orders issued by a court or administrative tribunal (see Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63; Donald J. Lange, The Doctrine of Res Judicata in Canada (Markham, Ont.: Butterworths, 2000), at pp. 369-370). Generally, it is invoked where the party is attempting to challenge the validity of a binding order in the wrong forum, in the sense that the validity of the order comes into question in separate proceedings when that party has not used the direct attack procedures that were open to it (i.e., appeal or judicial review) ... the collateral attack cases all involve a party, bound by an order, seeking to avoid the effect of that order by challenging its validity in the wrong forum.

[19] Garland was applied in somewhat similar circumstances by D. Wilson J. (as she then was) in C.R. v. Her Majesty the Queen in Right of Ontario, 2019 ONSC 2734 at para. 100, striking out claims which challenged existing court orders as an abuse of process.

[20] In my view this is a basis to strike out all of the causes of action pleaded here. The action is an abuse of process and should be struck out on this basis. However, there are additional reasons why the causes of action are untenable in law.

Negligence, Breach of Fiduciary Duty and Breach of Statutory Duty: No Duty of Care is Owed by the Defendants to the Plaintiff

[21] The defendants are children's aid societies designated by law to carry out child protection functions under ss. 34 and 35 of the Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1. As such, they owe no duty of care to parents or anyone else other than the child in whose interest they are acting. As Wilson J. put it in C.R., at para. 86: "The law is clear and I find that there is no duty of care owed by the moving defendants to the parents of children who are under investigation by the CAS." That decision was upheld at the Court of Appeal: J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198, 445 D.L.R. (4th) 642, leave to appeal to the Supreme Court of Canada dismissed.

[22] In Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83, the Supreme Court ruled that a children's aid society's sole duty of care is to the children in its care. This is essential to the work of child protection agencies, which must be able to do their work, acting in the best interests of the child, without the threat of lawsuits by aggrieved family members. As the Court of Appeal noted in J.B. at para 31, a society cannot have duties to both the child and the family:

It is clear that the CAS has a statutory duty to protect children. As part of this duty, the CAS must investigate allegations or evidence that children may be in need of protection. If the CAS also owed a duty to the child's parents, that duty would directly conflict with its overarching duty to the child. Such a conflict is untenable - a proposition for which there is explicit judicial support.

[23] Indeed, as the defendants note, child protection agencies are often in an adversarial relationship with parents, also making any duty untenable.

[24] Accordingly, the claims that are dependent on the defendants having a duty of care or other duty to the plaintiff cannot stand and must be struck out. This includes assertions of negligence, breach of fiduciary duty and breach of statutory duty.

Malicious Prosecution and Abuse of Process

[25] Under the heading "Malicious Prosecution and Abuse of Process", the plaintiff pleads that the defendants "initiated and continued legal proceedings against the Plaintiff" and the mother of the child "without reasonable or probable cause, and for an improper purpose." The reference to legal proceedings again illustrates the collateral attack problem; however, this claim is untenable for other reasons.

[26] First, the tort of abuse of process depends on four elements: (1) the plaintiff must be a party to a legal process initiated by the defendant; (2) the legal process must have been initiated for the predominant purpose of furthering some indirect, collateral and improper objective; (3) the defendant took or made a definite act or threat in furtherance of the improper purpose; and (4) some measure of special damage has resulted: Konstan v. Berkovits, 2024 ONCA 510 at para. 27.

[27] No facts are pleaded to support the elements of abuse of process. The plaintiff does not plead that he was a party to a legal process, or any of the other elements of the tort.

[28] Second, there has been no prosecution of the plaintiff, and none is pleaded. The tort of malicious prosecution arises from a failed prosecution of a person accused of a crime in which the proceedings have been terminated in the accused's favour: Nelles v. Ontario, [1989] 2 SCR 170. There is no pleading of any such proceedings or their termination.

Intentional Infliction of Mental Suffering

[29] In order to establish the tort of intentional infliction of mental suffering, a plaintiff must establish that there was (1) flagrant or outrageous conduct; (2) calculated to produce harm; and (3) resulted in a visible and provable illness: Thelwell v. Elaschuk et al., 2020 ONSC 340 at para. 66.

[30] The plaintiff has failed to plead any facts that support this tort. It is not enough to simply say that conduct was "calculated to cause, and did cause, the Plaintiff Mr. Miller, severe emotional distress and mental suffering"; the actual conduct must be specified: High Parklane Consulting Inc. v. Royal Group Technologies Limited at para. 41. The plaintiff must also, among other things, specifically plead a harm that is "a psychiatric illness or injury" and not merely harm to the plaintiff's dignity or sense of self-worth: McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830 at para 31.

[31] Accordingly, the pleading of the tort of intentional infliction of mental suffering is also deficient and should be struck out.

Defamation

[32] The tort of defamation requires that the specific defamatory words be pleaded: Frank v. Legate, 2015 ONCA 631 at para. 52. That has not been done. The draft Amended Statement of Claim simply repeats the assertion that false statements were made in order to obtain court orders.

[33] But there is another barrier to pleading defamation: privilege. Evidence provided to a court by an individual is absolutely privileged, and cannot be the subject of a defamation action: Samuel Manu-Tech Inc. v. Redipac Recycling Corporation at para. 20.

Misfeasance in Public Office

[34] The tort of misfeasance in public office has four elements: (1) the defendant must be a public officer who, (2) engaged in deliberate unlawful conduct in their capacity as a public officer; (3) did so knowing that the conduct was unlawful and likely to cause harm to the plaintiff; and (4) engaged in conduct that caused material damage to the plaintiff: Patterson at para. 102; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 SCR 263 at para. 23.

[35] Again, no facts are pleaded to specifically support this cause of action, just bald allegations of wrongdoing that essentially restate the elements of the tort. Bald allegations of providing false evidence are not sufficient. As I have noted, Rule 25.06(8) requires the pleadings be specific when alleging intentional wrongdoing.

Conspiracy

[36] This tort is asserted, but without any material facts; indeed, the draft Amended Statement of Claim simply lists the tort as one relied on by the plaintiff "as may be disclosed by the evidence." Later, the pleading states that there was "[a] coordinated effort to abduct the Plaintiff's newborn child under false pretenses, involving multiple agents from both organizations, in violation of the Criminal Code of Canada (section 465)."

[37] This is inadequate. A pleading of conspiracy must be detailed and precise, stating the agreement that was reached, its purpose, and the overt acts committed which are alleged to be in furtherance of the conspiracy, as well as the damages suffered as a result of the conspiracy: Patterson, at para. 67, citing Normart Management Ltd. v. West Hill Redevelopment Co. Ltd., 37 O.R. (3d) 97.

Breaches of the Charter

[38] The plaintiff pleads that the defendants deprived him and his children of "their right to family integrity, liberty and security of the person", contrary to sections 7 and 15 of the Charter.

[39] No particulars are provided of the specific conduct giving rise to this claim.

[40] In J.B., however, the Court of Appeal at para. 60 made it clear that "allegations of negligence cannot be dressed up as Charter breaches."

[41] In Patterson, a case with similarities to this one, Kalajdzic J. stated that "the plaintiff cannot frame his claims in negligence arising from a duty of care that does not exist and then include a bald allegation of bad faith in order to defeat a r. 21.01 motion to strike." As she continued, "the court must scrutinize the true nature of the claim as part of its analysis", citing Wilson J. in C.R. at para. 102.

[42] In this case, as in Patterson, in the absence of any specific facts supporting bad faith, the true nature of the plaintiff's claim is for negligence. Indeed, in my view all of the causes of action are simply "dressed up" claims of negligence, which is untenable as the defendants owed no duty of care to the plaintiff.

Leave to Amend

[43] In my view, the action should be struck out without leave to amend. As I have found, the action constitutes a collateral attack on court orders. It is the court orders which have harmed the plaintiff, not independent actions of the defendants. These are not just technical deficiencies that can be cured by good drafting. The action itself is an abuse of process.

[44] Further, the essence of the plaintiff's claim is for negligence which, in law, is untenable, and no amount of better drafting will save this defect.

[45] Moreover, in response to the defendants' motion the plaintiff has attempted to draft an adequate statement of claim, and has failed to do so, making bald assertions of wrongdoing and simply citing various torts. Again, the plaintiff's case will not improve by way of a third pleading.

[46] As I was completing these Reasons, on August 5, 2025 counsel for the defendants brought to the court's attention that the plaintiff, on August 4, 2025, uploaded a further proposed Amended Statement of Claim to the Caselines platform, and that the plaintiff has also removed the draft Amended Statement of Claim which was the subject of submissions on August 1, 2025. This is improper. The matter was argued based on material before me on August 1, 2025. I have not reviewed any of the new material and the motion will not be reopened. Counsel for the defendants are directed to file with the court, as a supplementary record, a copy of the draft Amended Statement of Claim posted on July 31, 2025, so that the court file is complete.

Conclusion

[47] The action is struck out without leave to amend.

Costs

[48] The defendants are entitled to their costs of the motion on a partial indemnity basis. Each of their Costs Outlines claims approximately $5,000. In my view a total costs award of $5,000 is appropriate as an amount which the plaintiff ought to have reasonably expected to pay. The plaintiff shall pay each of the defendants $2,500 in costs.

Paul B. Schabas J.

Date: August 6, 2025