



WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH
PROVIDES:

45(7)  The court may make an order,

(a) excluding a particular media representative
from all or part of a hearing;

(b) excluding all media representatives from all
or a part of a hearing; or

(c) prohibiting the publication of a report of the
hearing or a specified part of the hearing,

where the court is of the opinion that the presence
of the media representative or representatives or the publication of the
report, as the case may be, would cause emotional harm to a child who is a
witness at or a participant in the hearing or is the subject of the proceeding.

45(8)
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
childs parent or foster parent or a member of the childs family.

45(9)
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.





COURT OF APPEAL FOR ONTARIO

CITATION: H.A.G. v. Family and Children's Services Niagara,
2017 ONCA 861 DATE: 20171109

DOCKET: C63675

Sharpe, Rouleau and Fairburn JJ.A.

BETWEEN

H.A.G.

Plaintiff (Appellant)

and

Family and Childrens Services Niagara, Dyan
Pariak

Defendants (Respondents)

H.A.G., acting in person

Carole Jenkins, for the respondents

Heard: November 2, 2017

On appeal from the order of Justice Kenneth G. Hood of
the Superior Court of Justice, dated March 22, 2017.

REASONS FOR DECISION



[1]

The appellant commenced a claim against the
Family and Childrens Services Niagara and one of its employees, claiming
damages for the intentional infliction of mental suffering, negligence, and
punitive damages. This is an appeal from an order made pursuant to r.
21.01(1)(b) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
dismissing all claims in negligence as disclosing no reasonable cause of action
and all claims against the employee.

[2]

Relying upon
Syl Apps Secure Treatment
Centre v. B.D.
, 2007 SCC 38, [2007] 3 S.C.R. 83, the motion judge
concluded that the respondents sole duty of care was to the children, and not
the parents. As such, the claim in negligence could not proceed. The appellant
maintains that the motion judge erred by failing to distinguish
Syl Apps
from this case, including on the basis that the respondents negligent actions
at least partially pre-dated the apprehension of the children.

[3]

We see no error in the motion judges approach
or the conclusion reached. Both in the lead up to and following apprehension of
the children, the respondents duty of care was to the children and not the
parents. We agree with the motion judge that in the circumstances of this case
there could be no duty of care to the appellant because of the clear conflict
that would arise when considering the respondents duties to the children.

[4]

The appellant also maintains that the motion
judge erred in finding that s. 15(6) of the
Child and Family Services Act
,
R.S.O. 1990, c. C. 11 (CFSA), provided immunity to the named employee. We disagree.
The motion judge specifically reviewed the factual allegations set out in the
statement of claim pertaining to the employee. We agree with his determination
that while the pleadings may address allegations of negligence against the
employee, they do no more than that. As such, the dismissal of the claim in
negligence made it unnecessary to consider the application of s. 15(6) of the
CFSA. To the extent that it was necessary to consider the application of this
provision that provides immunity to employees for acts done in good faith in
the execution of a persons duty, there are no facts supporting an allegation
that the employee acted in anything other than good faith. Therefore, the
immunity provision applies.

[5]

As accepted by the respondents on appeal, the
appellant is not without resort to the other aspects of her claim. Only the
claims in negligence and against the individual employee have been struck. Her
pleadings otherwise remain intact. Without commenting on the merit of the
ongoing claim, we note that the appellant is still able to pursue her claim for
the intentional infliction of mental suffering by the respondent, the Family
and Childrens Services Niagara.

[6]

The appeal is dismissed.

[7]

We award costs to the respondents fixed in the
amount of $4,000 inclusive of disbursements and HST.

Robert J. Sharpe
J.A.

Paul
Rouleau J.A.

Fairburn
J.A.




