B.D. v. CAS (2007), 227 O.A.C. 161 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2007] O.A.C. TBEd. JL.079
Syl Apps Secure Treatment Centre and Douglas Baptiste (appellants) v. B.D., K.D., E.S. and J.D., and S.D. and A.D. by their Litigation Guardian E.S. (respondents) and Attorney General of British Columbia (intervenor)
(31404; 2007 SCC 38; 2007 CSC 38)
Indexed As: B.D. et al. v. Children’s Aid Society of Halton Region et al.
Supreme Court of Canada
McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
July 27, 2007.
Summary:
The plaintiffs were the parents, siblings and grandmother of a child (R.D.) apprehended by the Halton Region Children’s Aid Society and placed in the Syl Apps Secure Treatment Centre. The plaintiffs alleged that a social worker and doctor at the Centre were negligent and dealt with them in bad faith, resulting in R.D. not being reintegrated with the family. The plaintiffs sued the Centre, social worker and others. The Centre and social worker brought a motion under rule 21.01(1)(b) to dismiss the statement of claim as against them on the ground that it disclosed no reasonable cause of action. They alleged that a service provider under the Child and Family Services Act and a social worker employed by that service provider did not owe a duty of care to the family of a child committed to them for treatment.
The Ontario Superior Court granted the motion and dismissed the claim as against the Centre and the social worker as failing to disclose a reasonable cause of action. The plaintiffs appealed.
The Ontario Court of Appeal, Sharpe, J.A., dissenting, in a decision reported at 206 O.A.C. 350, allowed the appeal, permitting the claim to proceed. The court held that it was not plain and obvious that the claim would fail. The duties asserted were novel, but it was not obvious that the Centre and social worker did not owe the family a duty of care. The Centre and the social worker appealed.
The Supreme Court of Canada allowed the appeal and dismissed the action.
Editor’s Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book’s editorial policy or otherwise.
Practice – Topic 2230
Pleadings – Striking out pleadings – Grounds – Failure to disclose a cause of action or defence – [See
Torts – Topic 89.1
].
Torts – Topic 77
Negligence – Duty of care – Relationship required to raise duty of care – The Supreme Court of Canada discussed the test for determining whether a duty of care existed – The court stated that “To determine whether there is a prima facie duty of care, we examine the factors of reasonable foreseeability and proximity. If this examination leads to the prima facie conclusion that there should be a duty of care imposed on this particular relationship, it remains to determine whether there are nonetheless additional policy reasons for not imposing the duty” – See paragraphs 23 to 33.
Torts – Topic 79
Negligence – Duty of care – Factors limiting or reducing scope of duty of care – [See
Torts – Topic 77
and
Torts – Topic 89.1
].
Torts – Topic 89.1
Negligence – Duty of care – To parents – The plaintiffs were the parents, siblings and grandmother of a child (R.D.) apprehended by a children’s aid society under the Child and Family Services Act and placed in a secure treatment centre – The plaintiffs alleged that a social worker and doctor at the centre were negligent and dealt with them in bad faith, resulting in R.D. not being reintegrated with the family – The plaintiffs sued the centre, the social worker and others – The Supreme Court of Canada dismissed the action against the centre and the social worker for failure to disclose a reasonable cause of action – The centre and the social worker owed no duty of care to R.D.’s family because the necessary proximity relationship was lacking – To impose a duty of care towards the child’s family on a treatment centre and its social workers in this context would create a potential conflict with their ability effectively to discharge their statutory duties – Further, the centre and the social worker were providing services to R.D. in a treatment context that invoked medical paradigms of confidentiality and privacy – A doctor did not owe a duty of care to his or her patient’s parent because that would create conflicting duties of care – The conclusion that there was no proximity was reinforced when one considered two additional reflections of legislative policy – First, the Act provided a remedy for families seeking to challenge the way their child was treated – Second, there was a clear legislative intent to protect those working in the child protection field from liability for the good faith exercise of their statutory duty (i.e., immunity provisions) – A further policy consideration was that recognizing a duty in this context would create the possibility of parallel proceedings, which could lead to a relitigation of matters already determined at the child protection hearing – This would undermine the child protection scheme, result in unnecessary public expense, and inhibit child protection workers from strategies promoting a child’s best interests for fear of subsequent litigation.
Torts – Topic 9159
Duty of care – Particular relationships – Claims against public officials, authorities or boards – Child and family services departments and employees, subcontractors, etc. – [See
Torts – Topic 89.1
].
Cases Noticed:
Hunt v. Carey Canada Inc. – see Hunt v. T & N plc et al.
Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 15].
Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 23].
Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 23].
Cooper v. Hobart – see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.
Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 23].
Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 23].
Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, refd to. [para. 23].
Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 25].
Children’s Aid Society of Halifax v. S.F. and W.L. (1992), 110 N.S.R.(2d) 159; 299 A.P.R. 159 (Fam. Ct.), refd to. [para. 44].
Children’s Aid Society of Halifax v. C.M.N. (1989), 91 N.S.R.(2d) 232; 233 A.P.R. 232 (Fam. Ct.), refd to. [para. 44].
Children’s Aid Society of Ottawa-Carleton v. L.H., [1994] O.J. No. 2501 (C.J. Prov. Div.), refd to. [para. 44].
Children’s Aid Society of Ottawa-Carleton v. D.L., [1995] O.J. No. 693 (C.J. Prov. Div.), refd to. [para. 44].
B.F. v. Children’s Aid Society of Kingston (City), 1995 CarswellOnt 2154 (C.J. Prov. Div.), refd to. [para. 44].
Children’s Aid Society of Brockville Leeds and Grenville v. C., 2001 CarswellOnt 1504 (Sup. Ct.), refd to. [para. 44].
Children’s Aid of Society of Hamilton-Wentworth v. K.R., 2003 CarswellOnt 2929 (Sup. Ct.), refd to. [para. 44].
Family, Youth and Child Services of Muskoka v. N.C. et al., [2004] O.T.C. Uned. 401 (Sup. Ct.), refd to. [para. 44].
A.N. and B.N. v. Saskatchewan (Minister of Social Services) (1988), 68 Sask.R. 24 (Q.B.), refd to. [para. 44].
King v. Low – see King v. Mr. and Mrs. B.
King v. Mr. and Mrs. B., [1985] 1 S.C.R. 87; 57 N.R. 17; 58 A.R. 275, refd to. [para. 45].
Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 45].
Nouveau-Brunswick (Ministre de la Santé et des Services communautaires) v. M.L. et R.L., [1998] 2 S.C.R. 534; 230 N.R. 201; 204 N.B.R.(2d) 1; 520 A.P.R. 1, refd to. [para. 45].
Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165; 165 N.R. 161; 71 O.A.C. 81, refd to. [para. 45].
M. v. Newham London Borough Council; X (Minors) v. Bedfordshire County Council, [1994] 2 W.L.R. 554 (C.A.), refd to. [para. 54].
Sullivan v. Moody, [2001] HCA 59; 207 C.L.R. 562 (Aust. H.C.), refd to. [para. 55].
Gardner v. Rusch (1999), 179 D.L.R.(4th) 336 (B.C.S.C.), refd to. [para. 55].
P.S. v. Batth (1997), 40 O.T.C. 236 (Gen. Div.), refd to. [para. 55].
Statutes Noticed:
Child and Family Services Act, R.S.O. 1990, c. C-11, sect. 37(2), sect. 37(2)(f), sect. 37(2)(h) [para. 7]; sect. 37(3) [para. 39].
Authors and Works Noticed:
Bala, Nicholas, Hornick, Joseph P., and Vogl, Robin, Canadian Child Welfare Law: Children Families and the State (2nd Ed. 2004), pp. 1, 2 [para. 49].
Bala, Nicholas, Child Welfare in Canada: An Introduction, in Bala, Nicholas, Hornick, Joseph P., and Vogl, Robin, Canadian Child Welfare Law: Children Families and the State (2nd Ed. 2004), pp. 1, 2 [para. 49].
Bala, Nicholas, The Best Interests of the Child in the Post-Modernist Era: A Central but Illusive and Limited Concept, in Special Lectures of the Law Society of Upper Canada 2000: Family Law (1999), p. 3.1 [para. 46].
Goldstein, Joseph, Freud, Anna, and Solnit, Albert J., The Best Interests of the Child: The Least Detrimental Alternative (1996), p. 88 [para. 47].
Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (8th Ed. 2006), p. 304 [para. 26].
Counsel:
Dennis W. Brown, Q.C., Lise G. Favreau and Malliha Wilson, for the appellants;
Matthew Wilton and Gregory Graham, for the
respondents;
Natalie Hepburn Barnes, for the intervenor.
Solicitors of Record:
Attorney General of Ontario, Toronto, Ontario, for the appellants;
Matthew Wilton & Associate, Toronto, Ontario, for the respondents;
Attorney General of British Columbia, Vancouver, British Columbia, for the intervenor.
This appeal was heard on April 26, 2007, by McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.. of the Supreme Court of Canada. Abella, J., delivered the following decision for the court, in both official languages, on July 27, 2007.
