S.H. v CAS of Haldimand-Norfolk, 2019 ONSC 848

S.H. v CAS of Haldimand-Norfolk, 2019 ONSC 848

The plaintiff, the father of a child, alleged that the Children’s Aid Society (“C.A.S.) negligently investigated and maliciously prosecuted him. The CAS brought a motion for an Order striking the Statement of Claim pursuant to Rule 21 of the Rules of Civil Procedure, on the grounds that the Statement of Claim failed to disclose a reasonable cause of action, no duty of care was owed to the plaintiff by the CAS, and the claim was statute-barred pursuant to the Limitations Act.

The CAS submitted that the law was settled that a child protection agency does not owe a duty of care to third parties, including parents or caregivers of children, in exercising its child protection mandate under the Child and Family Services Act, R.S.O. 1990, c. C.11. This includes conduct of its investigations of child protection concerns. The principle that a child protection agency does not owe a duty of care to third parties in conducting investigations of child protection matters applies equally when claims or allegations of gross negligence, improper conduct and bad faith are made.

The plaintiff submitted that, given competing authorities in Ontario, the law was not settled and that a child protection agency owes a duty of care to third parties for negligent investigations, particularly where it is alleged that the investigation was carried out in bad faith.

The Court began its consideration of the law by looking at the seminal case of Syl Apps Secure Treatment Centre v. B.D., [2007] 3 S.C.R. 83, 2007 SCC 38. The Supreme Court of Canada had held in that case that neither the treatment centre (to which the CAS in that case had sent the child), or the social worker/case coordinator owed a duty of care to the family of the child. The SCC held that “[i]mposing a duty of care on the relationship between the family of the child in care and the child’s court-ordered service providers creates a genuine potential for ‘serious and significant’ conflict with the service provider’s transcendent statutory duty to promote the best interests, protection and well-being of the children in their care”. The Child and Family Services Act sets forth its paramount purpose as being “to promote the best interests, protection and well-being of children”. To impose a duty of care towards the child’s family would create a potential conflict with the treatment centre’s / social worker’s ability to effectively discharge their statutory duties and would create the potential for a chilling effect on social workers, who may hesitate to act in pursuit of the child’s best interests for fear of criticism and litigation from the family.

Despite the SCC’s ruling in Syl Apps, in S.H. the plaintiff pointed to other case law in Ontario, decided following Syl Apps, to suggest that the law was nonetheless unsettled as to whether a CAS owed a duty to parents in the investigation stage (as opposed to after the child was apprehended by a CAS). T.(D.) v. Highland Shores Children’s Aid, 2016 ONSC 1432 (S.C.J.) held that the law was unsettled on the question of whether a child protection agency owes a duty of care to third parties in respect of an alleged negligent or bad faith investigation. Similarly, A.D. v. T.G., 2013 ONSC 958 (S.C.J.) held that it was at least arguable that there was a prima facie duty of care to a parent if the parent is under investigation for child abuse, and distinguished those facts from Syl Apps.

In S.H., the Court considered the above cases but also other cases in Ontario which had held that children’s aid societies and their employees owe no duty of care to parents or other adult family members, even in the investigation of child protection proceedings. This principle applies equally to claims where allegations of gross negligence, improper conduct and bad faith are made (B.K. v. Chatham-Kent Children’s Services, 2016 ONSC 1921 (S.C.J.).

The Court concluded that it was clear that the CAS and its employees owed no duty of care to parents of a child that is the subject of child protection proceedings, including in the course of investigation, even where the claims include allegations of gross negligence, improper conduct or bad faith. Attempts to distinguish Syl Apps on the basis that it does not apply to pre-apprehension investigations by child protection agencies has been, or should be, put to rest in Ontario.

Accordingly, the court found that there was no reasonable cause of action with respect to the allegation that the CAS was negligent in conducting its investigation. Even an amendment to explicitly allege that the CAS investigation was carried out in bad faith would not assist the plaintiff in showing a reasonable cause of action.

The decision in this case is entirely in accordance with the Supreme Court of Canada’s reasoning in Syl Apps. While not referencing it directly, S.H. is also in line with the Ontario Court of Appeal’s decision in H.A.G. v. Family and Children’s Services Niagara, 2017 ONCA 861 (CanLII) which in very brief reasons supported the principle that there is no duty owed to parents in the investigative stage. The statutory mandate of any child protection agency is set out in the Act; a CAS is required to consider the best interests of a child first and foremost. While secondary considerations may include consideration of the family’s interest, it would be practically impossible for a CAS worker to be juggling competing duties to children, as well as to parents. Furthermore, at the beginning of any investigation, it is not known how the investigation will turn out. While some plaintiff parents have tried to argue that a duty of care should be owed to them at least in the investigation stage, this is practically speaking not possible for any CAS worker to fulfil.

Accordingly, it makes legal and practical sense that a CAS and its workers can owe no duty of care to anyone other than the child; this would include not owing a duty of care to parents, siblings, grandparents, or any other third parties. There is no reason why this principle would not similarly apply to claims of negligent investigation, bad faith and allegations of breach of Charter rights.

Insights & Commentary

Now is the Winter of Our Discontent: ONCA Settles How Long Winter Contractors Should Take to Apply Salt, Reiterates Duty of Care Separate from Contractual Duties - photo
  • Commentaries

Now is the Winter of Our Discontent: ONCA Settles How Long Winter Contractors Should Take to Apply Salt, Reiterates Duty of Care Separate from Contractual Duties

Now is the Winter of Our Discontent:[1] ONCA Settles How Long Winter Contractors Should Take to Apply Salt, Reiterates Duty of Care Separate from Contractual Duties By: Michael A. Valdez Introduction In the recent decision of Musa v. Carleton Condominium Corporation No. 255,[2] the Ontario Court of Appeal offers clear guidance as to how long a … Continued

The Question of Coverage for Innocent Passengers in Stolen Vehicles: A Review of the 2023 Ontario Court of Appeal Decision in Burnham v Co-operators General Insurance Company - photo
  • Commentaries

The Question of Coverage for Innocent Passengers in Stolen Vehicles: A Review of the 2023 Ontario Court of Appeal Decision in Burnham v Co-operators General Insurance Company

By Thomas Russell Background On August 25, 2014, Joshua Burnham was asleep in the back of a stolen pickup truck when it was involved in a motor vehicle accident, tragically killing the driver and front-seated passenger of the vehicle.[1] Arising out of this horrible situation was the question of who should cover the damages that … Continued

Causation and Foreseeability in Case v Pattison: Negligent Inspections Conducted by an Intervening Party do not Negate the Liability of a Preceding Tortfeasor - photo
  • Commentaries

Causation and Foreseeability in Case v Pattison: Negligent Inspections Conducted by an Intervening Party do not Negate the Liability of a Preceding Tortfeasor

By: Zachary Sherman Introduction In the May 2023 decision of Case v. Pattison,[1] the Ontario Court of Appeal (“ the Court”) provided clarification on the foreseeability and causation analysis to be applied where an intervening party negligently performs their duty to inspect the work of a preceding tortfeasor. In conducting their analysis, the Court concluded … Continued

From Settlement to Stay: The Ontario Court of Appeal Affirms the Importance of Prompt Disclosure of Settlement Information to Related Parties - photo
  • Commentaries

From Settlement to Stay: The Ontario Court of Appeal Affirms the Importance of Prompt Disclosure of Settlement Information to Related Parties

In its recent decision, Skymark Finance Corporation v Ontario, 2023 ONCA 234[1], the Ontario Court of Appeal took the opportunity to comment on the importance of immediate disclosure of settlement minutes to other parties in an action and to clarify the meaning of the phrase “to change the entirety of the litigation landscape”. The Immediate … Continued

by

When are Insurers Required to Provide Medical Reasons for the Denial of Statutory Accident Benefits? - photo
  • Commentaries

When are Insurers Required to Provide Medical Reasons for the Denial of Statutory Accident Benefits?

An insurer may discontinue an insured’s entitlement to benefits under the Statutory Accident Benefits Schedule[1] (“the SABS”) pursuant to any of the specified grounds enumerated under section 37(2). If the insurer determines that the insured is ineligible for benefits on the basis of any of these grounds, section 37(4) requires the insurer to provide notice, … Continued

by

Vitriol or Value? ONCA Provides Direction on Anti-SLAPP Analysis - photo
  • Commentaries

Vitriol or Value? ONCA Provides Direction on Anti-SLAPP Analysis

Introduction In Thorman v. McGraw,[1] the Ontario Court of Appeal clarified section 137.1(4)(b) of the Courts of Justice Act and further narrowed the class of public expression deemed worthy of protection under Ontario’s anti-SLAPP legislation. Background In December 2013, the respondent entered into an agreement with the appellants to renovate her bathroom. The respondent was … Continued

by

All News