



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.




WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject
    to this section, no person shall publish the name of a young person, or any
    other information related to a young person, if it would identify the young
    person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the
    information relates to a young person who has received an adult sentence;

(b) in a case where the
    information relates to a young person who has received a youth sentence for a
    violent offence and the youth justice court has ordered a lifting of the
    publication ban under subsection 75(2); and

(c) in a case where the
    publication of the information is made in the course of the administration of
    justice, if it is not the purpose of the publication to make the information
    known in the community.

(3) A young person
    referred to in subsection (1) may, after he or she attains the age of eighteen
    years, publish or cause to be published information that would identify him or
    her as having been dealt with under this Act or the
Young Offenders Act
,
    chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is
    not in custody pursuant to either Act at the time of the publication.

111(1)          Subject
    to this section, no person shall publish the name of a child or young person,
    or any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having
    appeared as a witness in connection with, an offence committed or alleged to
    have been committed by a young person.

138(1)          Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985,

(a) is guilty of an
    indictable offence and liable to imprisonment for a term not exceeding two
    years; or

(b)  is guilty of an
    offence punishable on summary conviction.




The court released its judgment in this matter to
    counsel and the appellant only, on May 8, 2020, after an
in camera
hearing. The court has received submissions from counsel who reviewed the
    unredacted judgment. The court has determined that the attached redacted version
    of the reasons should be released to the public. The full reasons along with
    the rest of the Court of Appeal file remain under seal.

COURT OF APPEAL FOR
    ONTARIO

CITATION: M.E. v. R., 2020 ONCA 289

DATE: 20200623

DOCKET: C67498

Lauwers, Hourigan and Fairburn
    JJ.A.

BETWEEN

M.E.

Plaintiffs (
Appellant
)

and

Her
    Majesty the Queen in Right of Ontario
,

Childrens
    Aid Society of Toronto
and

Durham Childrens Aid Society

Defendants (
Respondents
)

The appellant, acting in person

Domenico Polla, for the respondent Her
    Majesty the Queen in Right of Ontario

Scott C. Hutchison, for the respondents
    Childrens Aid Society of Toronto, Giovanna Asaro and Ada Lee (contempt appeal)

Giovanna Asaro, for the respondent
    Childrens Aid Society of Toronto (summary judgment appeal)

Heard: February 28, 2020

On appeal from the orders of Justice Paul B. Schabas of the Superior
    Court of Justice, dated September 23, 2019, with reasons reported at 2019 ONSC 5138
    and 2019 ONSC 5141.

REASONS
    FOR DECISION

[1]

The appellant started the underlying action in 2016. It revolves largely
    around the disclosure of certain records concerning the appellant by the Childrens
    Aid Society of Toronto. The statement of claim makes a number of claims, and
    the respondents moved for summary judgment. The appellant also brought a motion
    for contempt.

[2]

The factual context starts with the appellants sexual abuse as a
    child
, which the motion judge characterized as
    an historical sexual assault on her by [a relative]. The [relative]
was convicted of two counts of sexual assault, one count of sexual interference,
    and sentenced.

[3]

Previously, when the appellant was a ward of the Society, she was
    sentenced for offences under the
Young Offenders Act
, R.S.C. 1985, c. Y-1.
The Societys file
    contained a pre-disposition report prepared for the sentencing, which the
    Society had received in its capacity as parent.

[4]

In 2013, the appellant requested the Society send information to the
    Criminal Injuries Compensation Board to support her claim
under the
Compensation for Victims of
    Crime Act
, R.S.O. 1990, c. C.24 for
    compensation for the sexual assault.
She later discovered that the
    file the Society had disclosed to the Board contained the sensitive
    pre-disposition report and information about her youth criminal offences.

[5]

The motion judge
    observed that the appellants real grievance is that she was unaware that the
    pre-disposition report was in the Societys file and is upset that it was
    disclosed, along with the fact that she faced youth criminal justice
    proceedings as a teenager. The appellant gave us the same impression.

[6]

The appellant believes that she is representing the
    interests of many people who are similarly situated and whose records are too
    accessible and disclosable.

[7]

The appellants distress at this disclosure sets the background for the
    two appeals before this court. The first relates to the motion judges dismissal
    of the appellants action in its entirety, with reasons reported at 2019 ONSC
    5138. The second relates to the motion judges dismissal of the appellants
    contempt motion against the Society, Giovanna Asaro, and Ada Lee, with reasons
    reported at 2019 ONSC 5141.

[8]

We address the contempt appeal before the summary judgment appeal.

Jurisdiction over the Contempt Appeal

[9]

Counsel for the respondents in the contempt appeal argued that the order
    dismissing the appellants contempt motion was interlocutory and could only be
    appealed to the Divisional Court, with leave, not to this court:
The
Catalyst
    Capital Group Inc. v. Moyse
, 2015 ONCA 784, 127 O.R. (3d) 625, at
    para. 12;
Chirico v. Szalas
, 2016 ONCA 586, 132 O.R. (3d) 738, at
    paras. 43-48.

[10]

We
    disagree. The appellants motion for contempt and the respondents motion to
    dismiss the action were heard on the same day by the same judge, and the
    reasons in both were released on the same day. These are not separate
    proceedings. The motion judge himself recognized in the contempt reasons that:
    The motion arises out of, and overlaps with, relief sought by the plaintiff in
    this action. The appeals are intimately related and are better viewed as one
    proceeding that was dismissed by the motion judge in a judgment that is final
    and appealable to this court.

The Contempt Appeal

[11]

On the contempt appeal, the appellant repeated the arguments
    she made to the motion judge.
He dismissed
    the contempt motion, on the basis that to be in contempt of court, a person or
    institution must disobey a court order:
Rogacki v. Belz
(2003), 67 O.R. (3d) 330 (C.A.), at para. 17. There
    were no court orders disobeyed in this case.

[12]

Before he dismissed the contempt motion, the motion
    judge considered each of the appellants three contempt complaints carefully.
The
    first complaint is that the Society transmitted parts of her file to the Board
    in 2013
, at the appellants request, in
    order to support her claim for compensation for the sexual assaults she
    suffered.

[13]

The motion judge
    observed that the particular document to which the appellant objects most
    strongly, the pre-disposition report, contained the very information the
    appellant needed in order to be successful in her claim before the Board. In
    his view, the Societys conduct could not be characterized as contempt on its
    part but is better understood as an effort to be helpful to the appellant. The
    motion judge also found that the Societys action in sending her file to the
    appellants paralegal was similarly not contemptuous.

[14]

The appellants second complaint is that Ms. Asaro and Ms.
    Lee were contemptuous in serving the Societys statement of defence in the action
    underlying this appeal on her children because it referred to historical proceedings
    involving the appellant under the
Young Offenders Act.
By serving the statement of defence in this action, the
    appellant argues that the Society contemptuously provided the private
    information about the appellants past to her adult children, who are also
    named as plaintiffs.

[15]

The service of the
    statement of defence on the plaintiffs was not contemptuous but was obligatory
    under r. 16 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. The motion judge noted that
    the court proceedings are subject to a sealing order to protect the appellants
    privacy.

[16]

The appellants third
    contempt complaint is that Ms. Asaro contemptuously failed to personally attend
    before the Ontario Court of Justice in a proceeding respecting the appellants
    youth court records. Some context is needed to explain this complaint. The
    Society brought an application under ss. 119 and 123 of the
Youth
    Criminal Justice Act
, S.C. 2002, c. 1
    in order to be permitted to produce the appellants child-in-care file in this
    action. The motion judge did not find that Ms. Asaro had been ordered to
    appear in the Ontario Court of Justice for argument on the return of the
    Societys application. He also noted that Ms. Asaro could not appear because
    she had sworn an affidavit to be used in the argument before the Ontario Court
    of Justice on the disposition of the youth court record.

[17]

The Ontario Court judge who heard the application
    granted the parties involved in this lawsuit access to the Societys file in
    order to ensure the full and fair adjudication and disposition of the issues
    in that proceeding. He was alive to the privacy issue and added a condition
    that the parties not disclose the records or any information therein to anyone
    who does not have a direct interest in this civil proceeding. His order also
provided:

3. At the conclusion of the court litigation
    and any appeal period, the records of the proceedings under the Young Offenders
    Act, including charges and dispositions pertaining to [the appellant] shall be
    eradicated.

[18]

The appellant has not
    identified any factual or legal error in the motion judges reasons for
    decision on the contempt motion. We agree with the motion judges reasons on
    contempt.

The Summary Judgment Appeal

[19]

The
    four causes of action the appellant raised in her amended statement of claim
    were set out by the motion judge in his summary judgment reasons:

1.

negligence and breach of fiduciary duty, arising
    from wrongful diagnosis of, and reliance on, "mental health
    pathologies", and the failure to act on sexual abuse complaints (Claim,
    paras. 15-29);

2.

defamation arising from the inclusion and
    distribution of the wrongful diagnoses and other allegedly false statements
    contained in the file (Claim, paras. 33-35, 40 and 41);

3.

breach of privacy, harassment and breach of
    fiduciary duty arising from wrongful disclosure of [the appellants [Childrens
    Aid Society] file (Claim, paras. 36-41); and

4.

wrongful disclosure of the appellant's youth criminal proceedings
    ([Claim], paras. 33, 35 and 42).

[20]

The
    motion judge analyzed each of these claims in detail. He found that: [c]ertain
    of the pleaded causes of action do not exist in law. Others are unsupported by
    the evidence on this motion and there are no genuine issues requiring a trial.

[21]

There
    is no reason to repeat the motion judges analysis. It was compassionately
    expressed. The appellant does not claim that the motion judge made any factual
    errors. Apart from the motion judges analysis regarding the disclosure regime
    under the
Young Offenders Act
and the
Youth Criminal Justice Act
,
    we do not discern any legal errors.

[22]

There
    is one point on which the motion judge arguably erred. This relates to the
    effect of s. 38 of the
Young Offenders Act
and the Societys obligations
    under it.

The Effect of s. 38 of the
Young Offenders
    Act


[23]

The appellant disputes both the provision of the
    pre-disposition report to the Society and its subsequent transmission by the
    Society. She argues that the Society breached s. 38 of the
Young Offenders
    Act
by providing the pre-disposition report to third parties. In the
    appellants view, s. 38 of the
Young Offenders Act
required the destruction of the pre-disposition
    report wherever it was found, including any copies sent to the Society.
The
Young Offenders Act
has since been replaced with the
Youth
    Criminal Justice Act
. Section 138(1) of the
Youth Criminal Justice Act
makes it an offence to publish the identity of an offender, contrary to s. 38(1)
    (identity not to be published) of the
Young Offenders Act
.

[24]

The Society received a
    copy of the pre-disposition report because it was acting in the capacity of the
    appellants parent at the time of the youth court proceedings:
Young
    Offenders Act
, s. 44.1(1)(d); see also
Youth Criminal Justice Act
, s. 119(1)(e). While the Society complied with its statutory
    obligations in its indefinite retention of the appellants child-in-care file,
    the appellant argues and pleads that the Society wrongfully disclosed the pre-disposition
    report to the Board.

[25]

This argument gives rise
    to several issues.
The first is
    whether
the appellants youth
    record, which includes the pre-disposition report, was subject to a presumption
    of non-disclosure:
Young Offenders Act
, ss. 45(1), 45(3); see also the
Youth
    Criminal Justice Act
, ss. 119(2), 128(2).

[26]

The
    second issue concerns the relationship between the disclosure regimes under the
Young Offenders
Act and the
Youth Criminal Justice Act
and which applies in these
    circumstances.

[27]

The third
    issue is whether the Society is exempt from the operation of the disclosure
    regime under these statutes.

[28]

The
    fourth issue is whether the Society was obliged to seek judicial authorization permitting
    it to disclose the pre-disposition report to the Board, even if
the appellant had arguably requested the Society to
    disclose information to the Board. The
Board requested the Society to provide a
letter summarizing
: (a)
    the findings from their investigation of the allegations; (b) any psychological
    assessments they have for [the appellant] in their files. The appellant copied
    this passage almost verbatim in her letter to the Society asking it to please
    forward the information the Board is requesting  and to provide
her
with a copy of [her] file.
She also attached a copy of the Boards
    letter in her correspondence to the Society.
However,
    the Society provided copies of several documents from the appellants file to
    the Board, not the summary the Board requested.

[29]

The fifth issue is
    whether any breaches by the Society give rise to civil liability to the
    appellant for damages.

[30]

The motion judge did not
    engage fully with these issues and they were not fully argued before this
    court. The motion judge said, at para. 48:

Finally, there is the disclosure of the [pre-disposition
    report] which [the appellant] alleges is in breach of the
Young Offenders
    Act
and the
Youth Criminal Justice Act
. There are two distinct
    reasons which lead me to dismiss this claim. First, to the extent [that] such
    disclosure
may have been in breach of legislation, it ought to have been
    pursued as an offence under that legislation
. Second, it
is not clear
that possession or disclosure of the [pre-disposition report], which was
    properly provided to [the Society] as [the appellants] parent between 1990 and
    1993,
is a breach of either the
Young Offenders Act
, which was in
    force at the time the report was prepared and obtained by [the Society], or the
    current
Youth Criminal Justice Act
. While there are detailed rules
    about youth court records,
the obligations do not clearly apply
where
    copies of a document, which also happen to be filed in youth court, are held by
    third parties. [Emphasis added.]

[31]

As
    for the first reason for dismissing the claim, we do not accept that just
    because disclosure may constitute an offence under a legislative scheme, that
    this precludes pursuing the matter in an action. As for the second reason given
    for dismissing the claim, it revolves around a lack of clarity  it is not
    clear  as to the effect of the statute on the retention and disclosure of the
    subject material.

[32]

Accordingly,
    the culminating issue of whether the Society is liable in damages to the
    appellant for this allegedly wrongful disclosure is left to be decided.

[33]

We allow the appeal from
    the summary judgment motion in part. We leave it to the parties to decide how
    best to proceed under the
Rules of Civil Procedure
. We otherwise dismiss the appeal.

[34]

The
    parties may make written costs submissions on the appeal and with respect to
    the costs of the motion for summary judgment. Submissions will be limited to
    five pages, exclusive of any bill of costs, on a two-week turnaround from the
    date this decision is released. The appellant will make her submissions first.
    After the respondents file their costs submissions, the appellant may make
    reply submissions, limited to two pages.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.

Fairburn
    J.A.


