



WARNING

This is a case under the
Child, Youth and Family
    Services Act, 2017
and subject to subsections 87(8) and 87(9) of this
    legislation.
These subsections and subsection 142(3) of
the
Child, Youth and Services Act, 2017
, which
deals with the
    consequences of failure to comply, read as follows:

87
(8)
Prohibition re identifying
    child
 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.

(9)
Prohibition
    re identifying person charged
 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.

142
(3)
Offences re publication
 A
    person who contravenes subsection 87(8) or 134(11) (publication of identifying
    information) or an order prohibiting publication made under clause 87(7)(
c
)
    or subsection 87(9), and a director, officer or employee of a corporation who
    authorizes, permits or concurs in such a contravention by the corporation, is
    guilty of an offence and on conviction is liable to a fine of not more than
    $10,000 or to imprisonment for a term of not more than three years, or to both.




COURT OF APPEAL FOR ONTARIO

CITATION: J.B. v. Ontario (Child and Youth Services), 2020
    ONCA 198

DATE: 20200311

DOCKET: C67040, C67041, C67042,
C67043, C67044 & C67045

van Rensburg, Benotto and Harvison Young JJ.A.

BETWEEN

J.B.

Plaintiff (Appellant)

and

Her Majesty the
    Queen in Right of Ontario as represented by the Minister of Child and Youth
    Services and the Minister of Health and Long-Term Care
,
Childrens Aid
    Society of the Regional Municipality of Waterloo
,
Hospital for Sick Children, Gideon Koren and Joey Gareri

Defendants (
Respondents
)

AND BETWEEN

Y.M.

Plaintiff (Appellant)

and

Her Majesty the Queen
    in Right of Ontario
,
The Catholic Children's Aid Society of Toronto
,
    The Hospital for Sick Children,
Child Protection Worker(s)
John Doe/Jane Doe
, Gideon Koren, Joey Gareri,
Viaguard Inc., also known as Accu-Metrics,
Harvey Tenenbaum and Kyle Tsui

Defendants (
Respondents
)

AND BETWEEN

C.T.

Plaintiff (Appellant)

and

Hospital
    for Sick Children, Gideon Koren, Joey Gareri,
The Children's Aid
Society of the Regional Municipality of Waterloo
,
The Children's Aid
Society of Hamilton
,
Child Protection Worker(s) John Doe/Jane Doe
,
and
Her Majesty the Queen in Right of Ontario

Defendants (
Respondents
)

AND
    BETWEEN

T.W.
, K.B. and K.-L.B.

Plaintiffs (
Appellant
)

and

Her
    Majesty the Queen in Right of Ontario
,
Family Youth and Child
Services of Muskoka
, The Hospital for Sick Children, Gideon Koren,
Joey Gareri, and Marilyn Smart

Defendants (
Respondents
)

AND
    BETWEEN

C.R.,
    C.H., J.H., and C.H.H. by his litigation guardian, C.R.

Plaintiffs (Appellants)

and

Her
    Majesty the Queen in Right of Ontario
,
Children's Aid Society of
the Regional Municipality of Waterloo
, Angela Brenner, Michael Buchnea,
    James Woodstock, The Hospital for Sick Children, Gideon Koren,
Joey Gareri, and Julia Klein

Defendants (
Respondents
)

AND
    BETWEEN

M.MD., D.W.
and
    B.W. by his litigation guardian M.MD.

Plaintiffs (
Appellants
)

and

The
    Children's Aid Society of the Niagara Region
,
Child Protection Worker(s)
    John Doe/Jane Doe
, The Hospital for Sick Children, Gideon Koren, Joey
    Gareri, and
Her Majesty the Queen in Right of Ontario

Defendants (
Respondents
)

Katherine Hensel and Kaelan Unrau, for the appellant J.B.

Julie Kirkpatrick, for the appellants Y.M., C.T., T.W.,
    C.R., and M.MD.

Jeremy Glick and Estée Garfin, for the respondent Her
    Majesty the Queen in Right of Ontario

Elizabeth Bowker and Ejona
    Xega, for the respondents Childrens Aid Society of the Regional Municipality
    of Waterloo, Catholic Childrens Aid Society of Toronto, Childrens Aid Society
    of Hamilton, Family Youth Child Services of Muskoka and Child Protection
    Worker(s) John Doe/Jane Doe

Heard: December 12, 2019

On appeal from the judgment of Justice Darla A. Wilson of
    the Superior Court of Justice, dated May 1, 2019, with reasons reported at 2019
    ONSC 2734.

Benotto J.A.:

[1]

The Motherisk Drug Testing Laboratory (MDTL), housed in the Hospital
    for Sick Children (SickKids) in Toronto, performed hair follicle testing for
    drug and alcohol abuse. It became evident that some of the test results, used
    in child protection proceedings, were flawed. At issue in this appeal is the
    potential liability of various Childrens Aid Societies (collectively, the
    CAS), the Ontario government (Ontario) and certain named workers arising
    from the unreliable test results.

[2]

Family members of children who were the subject of protection
    proceedings sued the CAS and Ontario for damages as a result of the faulty test
    results.
[1]
Six of those claims are the subject of this appeal.

[3]

The CAS and Ontario brought motions pursuant to r. 21 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194 requesting that the actions be
    dismissed because it was plain and obvious they could not succeed. Applying the
    Supreme Court of Canadas decision in
Syl Apps Secure Treatment Centre v.
    B.D.
, 2007 SCC 38, [2007] 3 S.C.R. 83, the motions judge concluded that
    the CAS owed a duty of care to the children, not to the parents or family
    members. She also dismissed the actions against Ontario on the basis it did not
    owe a duty of care to the parents, families or children investigated or
    apprehended by the CAS. The motions judge further found that while Ontario has
    a broad duty to the public at large in the establishment and operation of
    laboratories, Ontario has no liability for the MDTL testing in either its
    supervisory role over the CAS and the MDTL or as a result of various statutes
    governing the operations of hospitals and laboratories. She struck the
    additional actions against the CAS and Ontario after concluding that they were
    based on a duty of care that did not exist.

[4]

For the reasons that follow, I would dismiss the appeals.

FACTS

(1)

Background

[5]

The MDTL conducted hair follicle testing for suspected alcohol and drug
    abuse. These results were used in family and criminal cases as well as in child
    welfare investigations and proceedings. In response to concerns that the test
    results were flawed, Ontario inquired into the reliability of the MDTLs test
    results between 2005 and 2015. As a result, Ontario established the Motherisk
    Commission to perform an independent review of various cases and produce a
    report.

[6]

In each of the appeals, the family members  at least one of whom is a biological
    parent of a child apprehended by the CAS  allege that the local CAS relied on
    flawed MDTL test results, which led to the apprehension of children and either
    the temporary or permanent loss of a child.
[2]
While the
    motions judge considered r. 21 motions involving seven actions, only six of those
    claims are the subject of this appeal (the parties appealing are collectively
    referred to as the appellants). The claims underlying the grouped appeal may
    be briefly summarized as follows:

(a)

C.R., C.H., J.H. and C.H.H. (the C.R. action)

[7]

The CAS apprehended two of C.R.s biological children in 2007 and 2008
    following positive MDTL testing. Subsequent attempts to return the children to
    C.R.s care were unsuccessful. A final court order made the children Crown wards
    for the purposes of adoption.

(b)

Y.M. (the Y.M. action)

[8]

Y.M., a biological mother, underwent MDTL testing as part of child
    welfare proceedings that began in 2011. The test results were positive for drug
    and alcohol abuse. By court order, the biological father received custody of
    the child, with limited access by Y.M. to the child. The order was not
    appealed.

(c)

T.W., K.B. and K.-L.B. (the T.W. action)

[9]

T.W. is the mother of two children, who are also named plaintiffs in this
    action. As part of child welfare proceedings that began in 2009, T.W. underwent
    MDTL testing, which resulted in her having supervised access to her children. A
    final court order placed both children in the joint custody of T.W. and the
    childrens father.

(d)

M.MD., D.W. and B.W. (the M.MD. action)

[10]

M.MD. and D.W. are the parents of a child involved in a child welfare investigation
    between 2011 and 2012. Following MDTL testing, the CAS apprehended the child
    and placed him in the care of his biological father, D.W., with supervised
    access rights granted to M.MD.

(e)

C.T. (the C.T. action) and J.B. (the J.B. action)

[11]

Following MDTL testing in 2012, the CAS apprehended the biological child
    of C.T. and J.B., who self-identifies as a Cree man. By court order, the child
    became a Crown ward for the purposes of adoption, without access by either
    biological parent.

(2)

The Claims

[12]

The appellants claimed against the CAS and Ontario and sought damages
    for negligence, negligent investigation and supervision, negligent and/or
    intentional infliction of mental distress, bad faith, breach of fiduciary duty
    of care
[3]
,
    misfeasance in public office and breaches of s. 7 of the
Canadian Charter
    of Rights and Freedoms
, Part I of the
Constitution
    Act, 1982
, being Schedule B to the
Canada
    Act 1982
(U.K.), c. 11. They base these claims on the CASs negligent
    reliance on the faulty MDTL test results to apprehend children and on Ontarios
    negligent failure to prevent the use of faulty test results, as overseer of the
    CAS, SickKids and the MDTL.

(3)

Decision in the Superior Court of Justice

[13]

The CAS and Ontario brought r. 21 motions to strike the claims against
    them, with the exception of the claims brought by the children apprehended as a
    result of protection proceedings (K.B., K.L.-B. and B.W., collectively the
    child-plaintiffs). The motions judge determined that the family members claims
    disclosed no reasonable cause of action and were bound to fail. Relying on r.
    21, she dismissed the actions against the CAS and Ontario, with the exception
    of the child-plaintiffs claims against the CAS.

[14]

The child-plaintiffs actions against the CAS, as well as all of the
    plaintiffs (the appellants and the child-plaintiffs) claims against SickKids
    and the director and the manager of the MDTL, continue.

[15]

With respect to the negligence claims against the CAS, the motions judge
    relied on
Syl Apps
to find that
    the CAS does not owe a duty of care to family members (i.e., parents and
    siblings), because it owes a duty to the subject-children in child protection
    investigations
. In that case, Abella J. found that a treatment
    centre and its employees did not owe a duty of care to the family of a child
    apprehended by the CAS because the purpose of the
Child and Family Services
    Act
is to promote the best interests, protection and well-being of
    children: R.S.O. 1990, c. C.11, s. 1(1)

(
CFSA
).
[4]
As Abella J. explained, if the CAS also owed a duty to family members, there
    would be a genuine potential for serious and significant conflict with the
    service providers transcendent statutory duty to promote the best interests 
    of the children in their care:
Syl Apps
, at para. 41.

[16]

On the issue of Ontarios liability for negligence, the motions judge
    concluded that Ontario did not owe a private law duty of care either to the
    parents or siblings of children involved in child welfare proceedings, or to the
    children subject to child protection investigations. As the motions judge
    explained, while Ontario supervises the CAS, it cannot owe a private law duty
    of care to the children because it is not directly involved in the CASs
    investigations. By virtue of its supervisory role, Ontario is too far removed
    from the daily conduct of the CAS. Therefore, a relationship of proximity does
    not exist between Ontario and the children subject to child welfare
    investigations or proceedings, nor does a private law duty of care arise under
    statute.

[17]

Regarding the other claims against Ontario, the motions judge found that
    Ontario does not owe a private law duty of care to a particular individual
    arising from the operation of hospitals or laboratories under the
Public
    Hospitals Act
, R.S.O. 1990, c. P.40
(
PHA
)

or the
Laboratory and Specimen Collection Centre
    Licensing Act
, R.S.O. 1990, c. L.1
(
LSCCLA
). While Ontario owes a duty to the public at large, there is
    no relationship of proximity that would ground a duty of care to the appellants
    in these cases. Moreover, the
LSCCLA
provides immunity to Ontario for
    any act done in good faith in the execution of its duties, including actions
    grounded in negligence. On this basis, the motions judge struck the appellants
    claims against Ontario for the negligent supervision of the MDTL.

[18]

The motions judge found that Ontario does not owe a private law duty of
    care by virtue of striking the Motherisk Commission. The decision to establish
    the Motherisk Commission was discretionary and there were no statutory
    requirements for Ontario to approve or agree with the policies and procedures the
    Motherisk Commission developed.

[19]

The motions judge further found that Ontario was not responsible for the
    alleged
Charter
breaches, in part because many of the samples tested
    by the MDTL in the relevant cases were obtained pursuant to a court order. A
Charter
-based
    objection should have been made at the time of the order or the parties should
    have appealed the order. In substance, the s. 7
Charter
claims contain
    allegations of negligence dressed up as
Charter
breaches. These claims
    disclose no reasonable cause of action.

[20]

With respect to the additional claims by J.B., the motions judge rejected
    the fiduciary duty claim and found that any duty under s. 35(1) of the
Constitution
    Act, 1982
was owed to the child, not to the parent, for the reasons
    articulated in
Syl Apps
.

ISSUES ON APPEAL

[21]

The appellants allege that the motions judge
erred
    generally by
determining that it was plain and obvious that there was no
    reasonable cause of action against the CAS and/or Ontario. They also allege
    that she erred specifically by: (i) not conducting a thorough analysis
    according to the test set out in
Anns v. Merton London Borough Council
,
    [1978] A.C. 728, [1977] 2 W.L.R. 1024 (U.K. H.L.), (subsequently modified and
    applied by the Supreme Court in
Cooper v. Hobart
, 2001 SCC 79, [2001]
    3 S.C.R. 537) (the 
Anns
test); (ii) rejecting the claim for bad faith;
    (iii) striking the appellants
Charter
claims; and (iv) determining
    that certain claims were an abuse of process.

[22]

In addition, J.B. alleges that the motions judge erred in dismissing the
    claims for breach of fiduciary duty and breach of s.35(1) of the
Constitution
    Act, 1982
.

ANALYSIS

[23]

I address these issues in the following order:

1.

Rule 21 test to
    determine an issue before trial;

2.

Negligence claims
    against the CAS;

3.

Negligence claims
    against Ontario;

4.

The allegation of bad
    faith;

5.

Charter
claims against the CAS and Ontario;

6.

Additional claims raised
    by J.B.:

a.

Breach of fiduciary
    duty;

b.

Section 35(1) of the
Constitution
    Act, 1982
.

(1)

Rule 21 test to determine an issue before trial

[24]

On a r. 21 motion, a claim will be struck if it is plain and obvious
    that it has no prospect of success. In this case, if the facts pleaded  which
    are presumed to be true  are not sufficient to give rise to a duty of care,
    then the claims have no reasonable cause of action.

[25]

At the heart of r. 21 are the mutual aims of judicial economy and
    correctness. The power to strike claims that have no chance of success is an
    important tool that reduces the time and cost of litigation and frees up the
    courts time to resolve meritorious disputes. However, the court does not
    exercise this power lightly. Judges are ever-mindful that the law is fluid,
    evolving over time so that actions that yesterday were deemed hopeless may
    tomorrow succeed:
R. v. Imperial Tobacco Canada Ltd.,
2011 SCC 42,
    [2011] 3 S.C.R. 45, at para. 21.

[26]

Bearing these principles in mind, the court adopts a generous approach
    in its analysis of a claims reasonable prospect of success, err[ing] on the
    side of permitting a novel but arguable claim to proceed to trial:
Imperial
    Tobacco
, at para.  21. It is therefore essential that the facts
    underlying the claims are clearly pleaded so that the court may properly
    perform this exercise:
Imperial Tobacco
, at para. 22.

[27]

Even on the generous approach, the motions judge correctly struck the
    appellants claims for failure to disclose a reasonable cause of action. In
    reaching this determination, I approach the issues raised on appeal following
    the framework the Supreme Court established when it articulated the purpose and
    extent of r. 21 in
Imperial Tobacco
, at para. 21:

The court must  ask whether,
    assuming the facts pleaded are true, there is a reasonable prospect that the
    claim will succeed. The approach must be generous and err on the side of
    permitting a novel but arguable claim to proceed to trial.

(2)

Negligence claims against the CAS

[28]

The appellants claim that the CAS was negligent in relying on faulty MDTL
    test results and, as a result, they suffered damages when the CAS apprehended
    their children. The appellants base their claim on the premise that the CAS and
    Ontario owe a duty of care
to the

parents
of children
    involved in child protection investigations and proceedings.

[29]

However, both the statutory framework and jurisprudence governing child
    welfare proceedings make it clear that the negligence claims against the CAS
    cannot succeed.

[30]

The purpose of the
CFSA
(and
    of the new
CYFSA
)
is to promote the best interests, protection and well being of children: s.
    1(1). Indeed, the
CFSA
requires
the CAS to protect children. Section 15(3) enumerates the functions of the CAS
    and provides:

Functions of society

(3) The functions of a childrens aid society are to,

(a)
investigate allegations or evidence that
    children may be in need of protection
;

(b)
protect children where necessary
;

(c) provide guidance, counselling and other services
    to families for protecting children or for the prevention of circumstances
    requiring the protection of children;

(d) provide care for children assigned or committed
    to its care under this Act;

(e) supervise children assigned to its supervision
    under this Act;

(f) place children for adoption under Part VII; and

(g) perform any other
    duties given to it by this or any other Act. [Emphasis added. Citations
    omitted.]

[31]

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
    childs 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.

[32]

Syl Apps
is the leading authority on the duty of
    care in child protection matters. In
Syl Apps
,

the CAS apprehended a 14-year-old child and placed her in a foster home
    after she wrote a story at school alleging that her parents had physically and
    sexually abused her. No criminal charges were laid following a police
    investigation. After a subsequent transfer from foster care to several
    psychiatric facilities, the court found the girl to be a child in need of
    protection and ordered temporary wardship. Shortly thereafter, the court, with
    the girls consent, placed her in the care of a treatment centre and,
    eventually, made her a permanent ward of the Crown. Over three years later, some
    family members claimed against the CAS, the treatment centre and several of
    their respective employees for negligence and sought $40,000,000 in damages:
Syl
    Apps
, at paras. 3-12.

[33]

The familys claim turned on their assertion that the treatment centre had
    treated the child as if her parents had physically and sexually abused her,
    that this was negligent conduct, and that the negligence caused [her] not to
    return to her family, thereby depriving the family of a relationship with her:
Syl Apps
, at para. 12.

[34]

The motion judge struck the action for failure to disclose a reasonable
    cause of action. In doing so, he found that the treatment centre, the lawyer, various
    psychiatrists and the social worker involved in the childs care owed a duty of
    care only to the child and not to the childs family:
Syl Apps
, at
    paras. 14-16.

[35]

The family members appealed the order as it related to the treatment
    centre and social worker to this court. The appeal was allowed in a split
    decision. However, the Supreme Court reversed this courts decision and adopted
    Sharpe J.A.s dissenting reasons in concluding that the motion judge correctly
    struck the action as disclosing no reasonable cause of action.

[36]

Abella J., writing for the court, agreed that the potential for conflicting
    duties under child protection legislation negated a duty of care to the childs
    parents or family members:
Syl Apps
, at para. 20. Furthermore, she
    reiterated that to recognize such a legal duty to the family of a child in [the
    treatment centres] care, would pose a real risk that a secure treatment centre
    and its employees would have to compromise their overriding duty to the child:
Syl Apps
, at para. 20.

[37]

On this basis, Abella J. agreed with the motion judge that it was plain
    and obvious the action had no possibility of success, explaining at paras.
    20-21:

For the reasons that follow, I agree with the motions judge and
    with Sharpe J.A. that to recognize such a legal duty to the family of a child
    in their care, would pose a real risk that a secure treatment centre and its employees
    would have to compromise their overriding duty to the child. I also agree with
    Sharpe J.A. that the duty of care pertaining to the relationship between
    children in need of protection and those who are charged with their care should
    be clearly defined on a categorical basis, rather than being left in a fluid
    state to be resolved on a case-by-case basis (para. 74).

I would not, as a result,
    recognize such a new legal duty. It follows that, in my view it is plain and
    obvious that the statement of claim discloses no reasonable cause of action
    against these defendants.

[38]

In the present appeal, the appellants submit that the law is not settled
    on whether the same principles apply to the CAS and Ontario under child
    protection legislation. To support this view, the appellants suggest that
Syl
    Apps
applies to the limited, fact-specific context of the duty of care
    owed by a treatment centre and its employees.

[39]

I do not agree. The underlying ratio of
Syl Apps
is that where
    entities exist to protect and provide for childrens best interests, to avoid
    conflicting duties, they must only owe a duty of care to the children they
    serve.  On this point, there is no principled reason to differentiate between a
    treatment centre and the CAS. The potential for a conflict between the childs
    best interests and parental expectations was crucial to the Supreme Courts
    analysis in
Syl Apps
 the nature of the treatment centre and the
    allegations at issue were not determinative in this regard:
Syl Apps
,
    at para. 41. As Abella J. explained, when children become Crown wards or are
    placed in the care of the CAS, those entities assume a parents rights and
    responsibilities for that childs care:
Syl Apps
, at para. 42;
CFSA
,
    s. 63(1). Consequently, this duty creates an inherently adversarial
    relationship between parents and the state:
Syl Apps
, at para. 42.

[40]

In this context, a childs best interests must take precedence.
    Countervailing duties could potentially force service providers to choose
    between the childs best interests and parental expectations which may be
    unrealistic, unreasonable or unrealizable on the other:
Syl Apps
, at
    para. 50. Although the interests of children and parents may sometimes align,
    as Abella J. clarified, that does not reduce the concern that in many, if not
    most of the cases, conflict is inevitable:
Syl Apps
, at para. 43. Such
    a conflict between the interests of children and their parents would undermine
    and impede the CASs statutory obligation to act in the childs best interests
    by prioritizing the familys satisfaction in the long term:
Syl Apps
,
    at para. 43. As Abella J. cautioned, this tension would doubtless result in a
    chilling effect on social workers, who may hesitate to act in  the childs
    best interests and invite litigation  from the family:
Syl Apps
,
    at para. 50.

[41]

Furthermore, I do not agree with the appellants distinction between the
    child welfare investigation stage and proceeding stage (i.e., pre- and
    post-apprehension) to argue that the courts have not determined whether the CAS
    owes a duty of care to parents at the investigation stage.
Syl Apps
is
    clear: the duty at all stages is to the child.

[42]

The law is settled in this regard. First, the
CFSA
requires the
    CAS to investigate allegations  that children may be in need of protection and
    to protect children where necessary:
CFSA
, s. 15(3)(a)(b). Second,
    this court has already held that the CAS does not owe parents a duty of care
    either during the investigation or proceeding stage; holding otherwise would
    directly conflict with its statutory duty to act in the childs best interests:
H.A.G. v. Family and Childrens Services Niagara
, 2017 ONCA 861, leave
    to appeal refused, [2018] S.C.C.A. No. 181. In brief reasons, the court held as
    follows, at paras. 2 and 3:

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.

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.
[Emphasis added.]

[43]

The appellants submit that
H.A.G.
is not jurisprudential
    because it is an endorsement. I disagree. The decision is styled as Reasons
    for Decision.  In any event, as this court has held, the weight to be given
    to an endorsement will vary widely, depending on whether the general
    principles of law have already been established or if the court of first
    instance has already conducted the jurisprudential heavy lifting:
R. v.
    Martin
, 2016 ONCA 840, 134 O.R. (3d) 781, at para. 19. It is clear that the
    court  in
H.A.G.
, considered
Syl Apps
to have settled the law:
    the CAS owes a duty of care to the children, not the parents, [b]oth in the
    lead up to and following apprehension of the children:
H.A.G.
, at
    para. 3.

[44]

In addition, the appellants argue that the trial judge erred by
    evaluating their claim in an evidentiary vacuum. But as the Supreme Court
    made clear, there is no need for a case-specific factual inquiry where the duty
    of care does not exist:
Syl Apps
, at para. 20. In
Syl Apps
,

Abella J. agreed with the dissenting reasons of Sharpe J.A. and explained
    that it was desirable to define the duty of care pertaining to the
    relationship between children in need of protection and those who are charged
    with their care  on a categorical basis, rather than being left in a fluid
    state to be resolved on a case-by-case basis:
Syl Apps
, at para. 20. The
    motions judge properly struck this claim for failure to disclose a reasonable
    cause of action.

(3)

Negligence claims against Ontario

[45]

The appellants make several negligence-based claims against Ontario. First,
    they claim that Ontario was negligent in its supervisory role of the CAS.
    Second, one of the appellants, J.B., alleges that Ontario was negligent in its
    supervisory role of SickKids and the MDTL. Finally, they claim that Ontario
    owed a private law duty of care to the child-plaintiffs to ensure that the CAS
    obtained reliable evidence. They premise these allegations on the duty of care
    they assert Ontario owes them.

[46]

With respect to the first allegation, this claim cannot succeed for the
    same reasons that the CAS does not owe a duty of care to parents or family
    members. I agree with the motions judge that Ontarios duties arising from the
CFSA
are general duties to the public at large. Given the untenable conflict of
    interest that would arise if Ontario owed the appellants a duty of care, and
    the appellants failure to plead the necessary facts to establish a
    relationship previously recognized as giving rise to a
prima facie
duty
    of care, I accept the motions judges conclusion that Ontario does not owe the
    appellants a private law duty of care: see also
Taylor v. Canada (Attorney
    General)
, 2012 ONCA 479, 111 O.R. (3d) 161, at para. 73. The motions judge
    appropriately struck this claim for failure to disclose a reasonable cause of
    action.

[47]

The second claim also cannot succeed. The appellant, J.B., points to the
PHA
and the
LSCCLA
to claim that Ontario breached its duty of
    care by failing to determine that the MDTL tests were unreliable and should not
    be used in child welfare proceedings. Neither statute gives rise to duties to
    individuals.

[48]

The
PHA
requires that the Minister act in the public interest. The
    statutory framework of the
PHA
makes it clear that there is no
    proximity between Ontario and the parents of children that would give rise to a
    duty of care. The
PHA
does not give rise to a duty of care to parents.
    The Divisional Court affirmed this principle in
Mitchell Estate v. Ontario
, 2005, 71 O.R. (3d) 571 (Div. Ct.),
at
    para. 30:

The overall scheme of the relevant
    Acts confers a mandate on the Minister of Health to act in the broader public
    interest and does not create a duty of care to a particular patient.

[49]

Likewise, the claim pursuant to the
LSCCLA
also fails for several reasons. First, the
LSCCLA
does not apply to the services
    provided by the
MDTL
. The
LSCCLA
regulates clinical laboratories. The
MDTL
was a forensic laboratory. At the relevant time,
Ontario
    did not provide accreditation for or regulate labs that carried out forensic
    tests. In this respect, Ontarios regulatory powers do not give rise to a duty
    of care to the appellants.

[50]

More importantly, a relationship of
    proximity between Ontario and the appellants does not arise from the
LSCCLA
. Pursuant to the
LSCCLA
, the Minister owes a general duty to the public,
    which does not create a private law duty of care. Moreover, it bestows on the
    Director various powers related to licencing

laboratories
    for the benefit of the public at large. Adopting Sharpe J.A.s clarification on
    this point, the Supreme Court agreed that exercising discretionary powers in
    the public interest does not translate into a private law duty of care:
Imperial
    Tobacco
, at para. 50, citing
Eliopoulos Estate v. Ontario (Minister of
    Health and Long-Term Care)
, 2006, 82 O.R. (3d) 321 (C.A.), at para. 30,
    leave to appeal refused, [2006] S.C.C.A. No. 514.


[51]

The
LSCCLA
provides immunity from personal liability to the
    Minister or the Director or anyone acting under the authority of the Director
    for any act done in good faith in the execution or intended execution of his or
    her duty or for any alleged neglect or default in the execution in good faith
    of [that] duty:
LSCCLA
, s. 8. For these reasons, the motions judge
    correctly found that it was plain and obvious that the appellants claim
    against Ontario for negligent supervision of the MDTL had no chance of success.

[52]

I do not agree that Ontario owes a private law duty of care to the child-plaintiffs.
    The appellants brought this claim against two Ministers with responsibility for
    administering the
CFSA
, the
PHA
and the
LSCCLA
. They
    allege that the failure of Ontario to provide appropriate oversight was more
    striking following the report from the Goudge Inquiry,
[5]
which highlighted the damage caused by relying on flawed forensic evidence.

[53]

I agree with the motions judge that Ontario does not owe a
    private law duty of care to the children who were the subject of the CASs
    investigations. A statutory duty of care does not arise under the
CFSA
.
    In this case there is no relationship of proximity between Ontario and the
    child-plaintiffs sufficient to establish a duty of care. As already discussed,
    Ontario owes a general duty to the public and is too far removed from the daily
    operations of the CAS in child protection matters to give rise to a duty of
    care. The absence of direct involvement in the CASs affairs weakens the nexus
    between Ontario and the child-plaintiffs: see also
Odhavji Estate v.
    Woodhouse
, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 70.


[54]

Furthermore, the appellants claim fails at both stages of
    the
Anns
test. At the first stage of the
Anns
test, the court
    considers whether the claim advanced describes a relationship that is the same
    as or analogous to a relationship that courts have previously recognized as
    giving rise to a
prima facie
duty of care:
Taylor
, at para.
    73. If there is a
prima facie
duty of care, the court will proceed to
    the next stage of the analysis and consider whether there are residual policy
    considerations which justify denying liability:
Edwards v. Law Society of
    Upper Canada
, 2001 SCC 80, [2001] 3 S.C.R. 562, at para. 10. A duty of
    care does not exist  finding otherwise would create a conflict of interest
    between the CASs statutory duties to the child and parental expectations. This
    same residual policy concern makes the imposition of a duty of care unwise:
Syl
    Apps
, at para. 31.

[55]

The motions judge did not err in striking this claim after
    applying the
Anns
test and determining that, in this case, there was
    no relationship of proximity from which a duty of care could arise. The appellants
    reliance on Ontarios response to the Goudge Inquiry does not alter this
    conclusion.

(4)

The allegation of bad faith

[56]

Bad faith is not a stand-alone tort. As the Supreme Court clarified,
    The law does not recognize a stand-alone action for bad faith:
Alberta v.
    Elder Advocates of Alberta Society
, 2011 SCC 24, [2011] 2 S.C.R. 261, at para.
    78. Moreover, the Supreme Court determined that the allegation of bad faith,
    as pleaded, is bootstrapped to the duty of care claim, and cannot survive on
    its own when the plea of negligence is struck: at para. 77. The same analysis
    applies here.

[57]

An allegation of bad faith cannot alter the duty of care analysis when
    the claim would create a genuine conflict of interest. In this regard, the
    appellants are conflating the
duty of
    care
, which is necessary for the claim to succeed, with the
standard of care
, which may engage
    concepts of bad faith. Here, there is no duty of care to allow the
    consideration of bad faith. The motions judge was correct to strike the claim.

(5)

Charter
claims against the CAS and Ontario

[58]

The appellants allege that the CAS and Ontario breached their s. 7
Charter
rights by obtaining test results from the MDTL, which did not meet the
    requisite standards, and then using the unreliable test results to apprehend
    children.

[59]

Further, the appellants allege that Ontario breached their s. 7
Charter
rights by permitting the CAS to demand bodily samples for testing, use
    those unreliable test results in child protection proceedings and thereby cause
    consequent delay. In addition, the appellants claim that Ontario infringed
    their s. 7
Charter
rights through establishing the Motherisk
    Commission pursuant to the
Public Inquiries Act
, R.S.O. 1990, c. P.41
    and in the subsequent policies and procedures it adopted.

[60]

The basis for these claims - in my view - is also in negligence. As the
    motions judge noted, allegations of negligence cannot be dressed up as
Charter
breaches. The motions judge did not err in striking these claims for failure
    to disclose a reasonable cause of action.

[61]

I adopt the reasoning of the British Columbia Court of Appeal in
Quinn
    v. British Columbia
, 2018 BCCA 320, 15 B.C.L.R. (6th) 1, leave to appeal
    refused, [2018] S.C.C.A. No. 463. In
Quinn
, the parents claimed that
    the Director of Child, Family and Community Services violated their s. 7
Charter
rights by temporarily removing their children from the family home on the
    basis of an anonymous report that one of the children alleged that the parents
    were abusive. The children were eventually returned to the parents custody:
Quinn
,
    at paras. 9-15. The parents also alleged that the Province of British Columbia breached
    its fiduciary duty and the duty of care. The British Columbia Court of Appeal
    determined that the action had no possible chance of success, primarily because
    of the Supreme Courts decision in
Syl Apps
that there is no private
    law duty of care owed to parents in child apprehension cases. The British
    Columbia Court of Appeal elaborated on this point, at para. 64:

I agree with the Province that these types of allegations have
    no reasonable prospect of success in light of the reasoning in
Syl Apps
    Secure Treatment Centre v. B.D.
, 2007
    SCC 38
. In that decision, Abella J., writing for the Court,
    rejected the imposition of a private law duty of care on the [treatment centre]
     and one of its social workers in light of an allegation by the parents that
    the Centre and the social worker had been negligent in treating the child,
    which caused the child not to be returned to them. Justice Abella reasoned that
    a compelling policy reason for refusing to find proximity between the parents
    and the Centre was the overriding statutory focus on the best interests of the
    child:

[41]    The deciding factor for
    me, as in
Cooper
and
Edwards,
is the potential for
    conflicting duties: imposing a duty of care on the relationship between the
    family of a child in care and that childs court-ordered service providers
    creates a genuine potential for serious and significant conflict with the service
    providers transcendent statutory duty to promote the best interests,
    protection and well-being of the children in their care.

[62]

As in
Quinn
, here the appellants
Charter
claims are
    effectively a cloaked constitutional challenge to the
CFSA
and the
    child protection scheme:
Quinn
, at para. 68. The
CFSA
explicitly
    mandates the CAS to protect children. As already explained, the CAS only owes a
    statutory duty of care to the child, while Ontario owes no duty of care to
    either the children or family members involved in child protection proceedings.
    Regrettably, those statutory duties may require investigating the parents and
    addressing allegations of drug and alcohol use.

[63]

The
Charter
claim against Ontario for establishing the
    Motherisk Commission cannot succeed. Establishing the Motherisk Commission did
    not deprive the appellants of life, liberty or security of the person. Quite
    the opposite. Ontario created the Motherisk Commission to provide an array of
    assistance and support to individuals who were affected by the flawed MDTL test
    results: Order in Council, Motherisk Commission: 4/2016 (January 13, 2016). In
    addition, Ontario had no obligation to prescribe matters of policy and
    procedure for the Motherisk Commission. The Motherisk Commission exercised its
    discretion to implement policies and procedures that would achieve its
    objectives. Section 7 of the
Charter
does not obligate it to establish
specific
policies and procedures. In exercising
    its discretion, the Motherisk Commission had considerable latitude to adopt the
    approach it viewed as the most effective and efficient way to fulfil its
    mandate.

[64]

I agree with the motions judge that it was plain and obvious the
Charter
claims would not succeed.

[65]

The appellants raise on appeal for the first time that the CAS
    also breached their s. 8
Charter
rights by taking their hair for
    testing, which they say constituted an unreasonable search and seizure. It is
    inappropriate for this court to opine on issues not raised at first instance
    and without the benefit of the motions judges analysis:
R. v. Roach
,
    2009 ONCA 156, 246 O.A.C. 96, at para. 6;
Canadian Civil Liberties
    Association v. Canada
, 2019 ONCA 243, at paras. 148-49, leave to appeal
    granted, [2019] S.C.C.A. No. 96.

(6)

Additional claims raised by J.B.

[66]

J.B. is the father of a child apprehended by the Family and Childrens Services
    of the Waterloo Region (the CAS Waterloo). C.T. is the childs mother. Following
    MDTL hair follicle testing, the CAS Waterloo conducted an investigation and
    apprehended their child. The trial judge made the child a Crown ward without
    access for the purposes of adoption. The parents appealed the no access order
    and the first-instance appeal judge reversed the trial judges order. The CAS
    Waterloo appealed that decision to this court, which allowed the appeal and
    reinstated the trial judges no access order:
Childrens Aid Society of the
    Regional Municipality of Waterloo v. C.T.
, 2017 ONCA 931, leave to appeal
    refused, [2018] S.C.C.A. No. 51.

[67]

In addition to the issues the appellants raise on appeal (addressed
    above), J.B. also claims against the CAS Waterloo and Ontario on the basis of
    breach of fiduciary duty and for breach of treaty rights enshrined in s. 35(1)
    of the
Constitution Act, 1982
.

[68]

With respect to breach of fiduciary duty, J.B. submits that the CAS
    Waterloo owes him a fiduciary duty as an Indigenous parent because of the
    agencys role in administering a child welfare system that has caused
    tremendous intergenerational, collective, and individual harms to Indigenous
    children, families, and communities. He refers to the
Final Report of the

Truth and Reconciliation Commission
(
TRC
)
[6]

and the
National Inquiry into

Missing and Murdered Indigenous
    Women and Girls
(
MMIWG
)
[7]
to demonstrate the harms the child protection system
    has caused to Indigenous children and families and the role of the CAS Waterloo
    (and the CAS generally) in causing these harms.

J.B.
    submits that these harms give rise to a particular fiduciary duty of the CAS to
    Indigenous families.

[69]

J.B. further submits that, as an Indigenous person, Ontario had a
    specific, fiduciary duty to him to ensure that measures taken in child welfare
    proceeding[s]  were procedurally fair  in accordance with the requirements of
    the
CFSA
. In his pleadings, he alleged that the CAS Waterloo violated
    s. 37(4) of the
CFSA
and infringed s. 35(1) of the
Constitution
    Act, 1982
by giving no consideration to the role of extended family in
    Cree traditions, laws, customs and practices relating to child care.

(a)

Breach of fiduciary duty

[70]

The Crown owes a special responsibility to Indigenous people. However,
    here, there are no facts pleaded that would satisfy a claim for breach of
    fiduciary duty. J.B. did not plead any facts that could establish a fiduciary
    duty existed  he simply asserted that it did. Moreover, J.B. refers to
Guerin
    v. The Queen
, [1984] 2 S.C.R. 335 to
    argue that the law governing the Crowns fiduciary duty to Indigenous peoples
    is an emerging area, and that the special considerations in this case
    distinguish it from other decisions where the court held that there is no
    fiduciary duty to parents in the context of child protection proceedings.
    However,
Guerin
does
    not support this argument.

[71]

At issue in
Guerin
was
the nature of Indian title [to
    land] coupled with the discretion vested in the Crown, which gave rise to a
    fiduciary obligation: at p. 386. Furthermore, in the present appeal, the
CFSA
does not create a duty of loyalty to family members, but rather to the
    apprehended children. The same reasoning in
Syl Apps
regarding the
    duty of care and the potential for a conflict of interest apply here to bar a
    breach of fiduciary duty. There could, under these circumstances, be no
    undertaking on the part of the CAS Waterloo or Ontario to act in the best
    interests of J.B.

[72]

The appellants reliance on the
TRC
and the
MMIWG
raises the issue that the fiduciary duty ought to exist to repair past wrongs. However,
    the Supreme Court rejected these remedy based fiduciary relationships in
Lac

Minerals Ltd. v. International Corona Resources Ltd.
, [1989] 2 S.C.R. 574. As La Forest J., writing for
    the majority, explained, at p. 652
:

In my view, this third use of the
    term fiduciary, used as a conclusion to justify a result, reads
    equity backwards. It is a misuse of the term.

[73]

The motions judge correctly held that the claim against the CAS Waterloo
    and Ontario had no chance of success because there is no fiduciary duty between
    them and Indigenous parents or families  any duty would be owed to the
    Indigenous child.

(b)

Section 35(1) of the Constitution Act, 1982

[74]

I do not accept J.B.s submission that the motions judge erred in
    concluding that it was plain and obvious the CAS Waterloo and Ontario owed no
    duty to Indigenous parents pursuant to s. 35(1) of the
Constitution Act, 1982
.

[75]

Section 35(1) of the
Constitution Act, 1982
provides that the
    existing aboriginal and treaty rights of the aboriginal peoples of Canada are
    hereby recognized and affirmed. Moreover, s. 37(4) of the
CFSA
provides:

Where child an Indian or native person

Where a person is
    directed in this Part to make an order or determination in the best interests
    of a child and the child is an Indian or native person, the person shall take
    into consideration the importance, in recognition of the uniqueness of Indian and
    native culture, heritage and traditions, of preserving the childs cultural
    identity. [Citations omitted.]

[76]

In the context of child protection proceedings, any duty flowing from
    these provisions is owed to the child, not the parent, by virtue of the Supreme
    Courts decision in
Syl Apps
. This claim has no possibility of success.

(c)

Abuse of process

[77]

The appellants claim that the motion judge erred in concluding that their
    claims were a collateral attack on court orders and an abuse of process.  My
    conclusions above are dispositive of the appeal. It is therefore unnecessary to
    address the abuse of process claims.

CONCLUSION

[78]

I agree with the decision of the motions judge that it is plain and
    obvious that the appellants claims against the CASs and against Ontario cannot
    succeed for failure to disclose a reasonable cause of action.

[79]

I would dismiss the appeals.

[80]

No costs were requested, and I would order none.

Released: March 11, 2020

MLB

M.L. Benotto J.A.

I agree K. van
    Rensburg J.A.

I agree A. Harvison
    Young J.A.





[1]

There were other defendants as well who are not
    part of this appeal.



[2]
Some of the actions included children as plaintiffs. At present, the actions
    that involve child-plaintiffs are proceeding against the CAS. In addition, the
    appellants and the child-plaintiffs claims against SickKids and the MDTL are
    also proceeding.



[3]

The appellants, other than J.B., did not pursue this claim on
    appeal.



[4]

The
Child, Youth and Family Services Act, 2017
, S.O.
    2017, c. 14, Sch. 1 (
CYFSA
) was proclaimed into force on April 30,
    2018. For the purpose of this decision, I refer to the
CFSA
, which was
    in force during the relevant period of time at issue in this appeal. The
    content of the relevant sections in both the
CFSA
and
CYFSA
remain the same. While I rely on the
CFSA
, my reasons with respect to
    duty of care apply to the
CYFSA
as well.




[5]
Ontario. Inquiry into Pediatric Forensic Pathology in Ontario.
The Report of
    the Inquiry into Pediatric Forensic Pathology in Ontario
(Toronto: Queens
    Printer for Ontario, 2008).




[6]
Canada. Truth and Reconciliation Commission.
The Final Report of the Truth
    and Reconciliation Commission of Canada
, vol. 5,
Canadas Residential
    Schools: The Legacy
(Montreal: McGill-Queens University Press, 2015).



[7]

Canada. National Inquiry into Missing and Murdered Indigenous
    Women and Girls.
Reclaiming Power and Place: The Final Report of the
    National Inquiry into Missing and Murdered Indigenous Women and Girls
(Ottawa: Government of Canada, 2018).


