L.L.A. v. Children's Aid Society of Cape Breton-Victoria

L.L.A. v. Children's Aid Society of Cape Breton-Victoria Court Supreme Court Date 2008-03-11 Citation 2008 NSSC 73 Docket SN 207956 Judge/Registrar/Adjudicator Coady, Kevin (Honourable Justice) (SC) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: L.L.A. v. Children’s Aid Society of Cape Breton-Victoria, 2008 NSSC 73 Date: 20080311 Docket: SN 207956 Registry: Sydney Between: L. L. A. Plaintiff and The Children’s Aid Society of Cape Breton-Victoria, and Marie Boone, Dave Brown, Wendy Campbell, Donna Dalrymple, Paul MacDonald, Melissa Nearing, Alana Brown, Angus MacMillan, Suzanne Campbell, Dena Yakimchuck, and Bob Crosby Defendants Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Justice Kevin Coady Heard: February 18, 2008, in Sydney, Nova Scotia Decision: March 11, 2008 Counsel: L. L. A., self-represented Ralph Ripley, for Bob Crosby Christopher Conohan, for The Children’s Aid Society of Cape Breton - Victoria, Dena Yakimchuck, Alana Brown, Marie Boone, Wendy Campbell, Melissa Nearing Colin Piercey, for Dave Brown, Donna Dalrymple, Paul MacDonald, Agnes MacMillan, Suzanne Campbell By the Court: [1] The plaintiff L. L. A. has a long history of child protection proceedings involving herself, and in later years, several of her children. On September 25, 2003 she commenced this legal action against the defendant agency, its social workers and its legal counsel. She seeks six million dollars in damages for negligence, abuse of position, abuse of process, malicious prosecution, failing fiduciary duty, defamation of character and child endangerment. [2] Defences were filed in October, 2003. The defendant agency filed a demand for particulars on January 12, 2004 and no particulars have been provided. In 2007 lists of documents were exchanged. Discovery examinations have not been held. [3] All defendants have filed applications pursuant to Civil Procedure Rule 14.25 for an order striking the plaintiff’s statement of claim in its entirety. Rule 14.25 provides as follows: “14.25(1) The court may at any stage of a proceeding order any pleading, affidavit or statement of facts, or anything therein, to be struck out or amended on the ground that, a) it discloses no reasonable cause of action or defence . . . and may order the proceeding to be stayed or dismissed or judgment to be entered accordingly. (2) Unless the court otherwise orders, no evidence shall be admissible by affidavit or otherwise, on an application under paragraph 1(a). [4] The defendants are grouped into three. Legal counsel, Mr. Crosby, is represented by Mr. Ripley. Social workers Brown, Dalrymple, MacDonald, MacMillan and Campbell are represented by Mr. Piercey. The agency and social workers Boone, Nearing, Brown, Campbell and Yakimchuck are represented by Mr. Conohan. [5] On the morning of this hearing Mr. Conohan had not filed an application on behalf of his clients. I determined that an application was required and permitted Mr. Conohan to file during the submissions of the other defendants. I directed that a copy be provided to Ms. A.. Mr. Conohan’s application was in all respects identical to the applications of Mr. Piercey and Mr. Ripley. I dispensed with the notice requirement pursuant to Civil Procedure Rule 37.05(3)(b) allowing all defendants to proceed with their application. [6] I am not concerned that the exercise of my discretion, as described above, caused any prejudice to Ms. A.. She was not taken by surprise and no new issue or argument emerged from the late filing. It would not have been in anyone’s interest to hear this application twice. [7] The striking of pleadings was the subject of Hunt v. Carey Canada Inc. (1990), 74 D.L.R. (4th) 321 (S.C.C.) Wilson, J. at page 355 references the words of Estey, J. in A-G Canada v. Inuit Tapirisat of Canada (1980), 115 D.L.R. (3d) 1 “As I have said, all the facts pleaded in the statement of claim must be deemed to have been proven. On a motion such as this a court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that “the case is beyond doubt”:” [8] Wilson, J. referenced her comments in Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 at page 551: “The law then would appear to be clear. The facts pleaded are to be taken as proved. When so taken, the question is: do they disclose a reasonable cause of action, i.e., a cause of action “with some chance of success” (Drummond-Jackson v. British Medical Ass’n, [1970] 1 All E.R. 1094) or, as Le Dain J. put it in Dowson v. The Queen (1981), 124 D.L.R. (3d) 260 at p. 268, 37 N.R. 127 (sub nom. Dowson v. Government of Canada) (F.C.A.), at p. 138, is it “plain and obvious that the action cannot succeed”?” [9] The test in these applications is settled. I must start by assuming that the facts as stated in the Statement of Claim can be proven. I can only strike the Statement of Claim if it is “plain and obvious” that it discloses no reasonable cause of action. I accept that this is a very onerous test. In Dumont v. Canada (Attorney General)[1990] 1 S.C.R. 279 “plain and obvious” was compared to beyond a reasonable doubt. [10] I accept the authority laid down by Freeman, J.A. in American Home Assurance v. Brett Pontiac Buick GMC (1992), 116 N.S.R. (2d) 319. He stated that a claim will be struck out only if on its face it is “obviously unsustainable”. See also Vladi Private Islands Limited v. Haase et al (1990), 96 N.S.R. (2nd) 323. CLAIM AGAINST ROBERT CROSBY: [11] Mr. Crosby acted as legal counsel for the defendant agency in protection proceedings involving the plaintiff’s children. He, at no time, represented Ms. A.. It is Mr. Crosby’s position that he does not owe a duty of care to Ms. A.. He further denies any liability under the other stated heads of damages. [12] In George Cluthe Manufacturing Co. Ltd. v. ZTW Properties Inc. et al (1995), 23 O.R. (3d) 370, the court stated at page 380: “The plea of negligence is not valid in law and should be struck out. There is no authority to support the proposition that a litigant, or his solicitor, owes a duty of care to an opposing party. Ordinarily, to state the obvious, the interests of opposing litigants are in conflict. I adopt the following statements in English authorities cited by Mr. Rolls: The proposition that a duty of care is owed by one litigant to another and can be superimposed on the checks and safeguards that the legal system itself provides is, to my mind, conceptually odd.” [13] In Brignolio v. Desmarais 1995 CarswellOnt 4761 an action against an opposing solicitor was struck and Justice Lane stated at paragraph 8 of his decision: “There are further authorities discussed by the court. It is quite clear, in my view, that because of the absence of a duty to the opposite party and for reasons of public policy inherent in the nature of the adversary process, an action in negligence against the solicitor for one’s adversary in litigation is not tenable in the law of Ontario. For this reason, I conclude that this present action, so far as it refers to negligence, is not tenable and must be struck out.” [14] This case also stands for the authority that a solicitors ethical duty is not owed to the opposite party in litigation, and as such, one cannot bring an action based upon it. This authority was endorsed in this court in Rent v. Gillis (1991), 108 N.S.R. (2d) 389. [15] I agree with Mr. Crosby’s counsel that the Statement of Claim does not disclose facts but rather very vague allegations and claims. The other damage headings have no application to Mr. Crosby. He was never in a position to have these impacts. There is no assertion that he acted in any way, other than within his professional mandate. The action against Mr. Crosby is obviously unsustainable. It is plain and obvious that the Statement of Claim discloses no reasonable cause of action and is bound to fail. [16] There will be an order striking the Statement of Claim against Mr. Crosby. CLAIMS AGAINST REMAINING DEFENDANTS: [17] The mainstay of Ms. A. claim is rooted in the tort of negligence. There are five elements required to succeed in negligence. They are (1) a duty of care, (2) standard of care, (3) causation of damages, (4) remoteness and (5) actual damages suffered. [18] Ms. A. seeks damages in relation to her children and also in relation to her own wardship with the defendant agency. I will address the former first. [19] The law is well settled on this point. The Supreme Court of Canada in Syl Apps Secure Treatment Centre v. B.D. (2007), S.C.C. 38 found that there is no duty of care owed to the families of children who have been taken into care by child protection agencies. The court concluded that “if there is no legally recognized duty of care to the family owed by the defendants, there is no legal justification for a protracted and expensive trial”. Abella J. stated: 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”. [20] The use of the words “categorical approach” indicates a blanket immunity for care providers performing their statutorily defined responsibilities. Abella J. stated further: 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 child’s 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. [21] The plaintiff argued that D.B. v. Children’s Aid Society of Durham Region, [1994] O.J. No. 643 distinguishes the authority in Syl Apps. It is noted that this case pre-dates Syl Apps by 11 years. I have carefully reviewed this decision and I conclude that it does not apply to this action and does not erode the strong authority in Syl Apps. I am satisfied that the plaintiff’s claim in negligence cannot succeed. [22] I agree with the defendants counsel that there is no cause of action for abuse of position or child endangerment. [23] Ms. A. pleads that the agency and its workers were guilty of an abuse of process. In K. (H.V.) v. Children’s Aid Society of Haldimand-Norfolk, 2003 CarswellOnt 1487 the court stated that to establish abuse of process the plaintiff’s would have to plead facts establishing such abuse. I have reviewed the Statement of Claim and cannot find any such pleadings. The plaintiff does not allege activities outside of the defendant agency and workers statutory mandate. She certainly alleges shortcomings in the exercise of those duties but does not allege improper extraneous behaviour. [24] In K.(H.V.) v. Children’s Aid Society of Haldimand-Norfold, supra, Himel J. stated that abuse of process required two essential elements. The following appears at paragraph 22: In John G. Fleming, The Law of Torts, Ninth Edition (The Law Book Co. Ltd., Sydney: 1998) at 687-688, Professor Fleming wrote as follows: Unlike malicious prosecution the gist of this tort lies not in the wrongful procurement of legal process or the wrongful launching of criminal proceedings, but in the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to serve. Although usually committed by plaintiffs, the tort may equally consists in an abusive defence. It involves the notion that the proceedings were “merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the court is asked to adjudicate”. It is therefore immaterial whether the suit thus commenced was founded on reasonable cause or even terminated in favour of the instigator: the improper purpose is the gravamen of liability. In addition to the improper purpose, there must be some overt act or threat, distinct from the proceedings themselves, in furtherance of that purpose, such as in the above mentioned case the extortion accompanying the capias. Were it otherwise, any legal process could be challenged on account of its “hidden agenda”. Thus, again in the seminal case, the fact that the mortgagee’s underlying action falsely alleged that the debt was due would not have been sufficient. It is not a tort merely to present a dishonest claim or defence, because such would not have a purpose other than that for which it was designed, that is for promoting, however dishonestly, one’s cause before the court. In a claim for abuse of process, a plaintiff must plead that: (1) the original process was initiated for an improper and collateral purpose and (2) that there existed some overt act or threat, separate and distinct from the proceedings themselves but related to the improper purpose: Dooley v. C.N. Weber Ltd., supra. Where a defendant merely employs regular legal process to its proper conclusion, no liability will be found: Toronto Dominion Bank v. Kopman (2000), 46 O.R. (3d) 773 (Ont. Div. Ct.), at 775. [25] This case also addressed the claim of malicious prosecutions. Himel J. stated at paragraph 24: In Nelles v. Ontario (1989), 60 D.L.R. (4th) 609 (S.C.C.), the court set out the elements of a claim for malicious prosecution at 615: (A) the proceedings must have been initiated by the defendant; (B) the proceedings must have been terminated in favour of the plaintiff; (C) the plaintiff must show that the proceedings were instituted without reasonable cause, and (D) the defendant was actuated by malice. [26] I find no facts pleaded which establish the cause of action of malicious prosecution. [27] Ms. A. also pleads a breach of fiduciary duty. In order for such an action to succeed there would have to be a fiduciary relationship between the parties. The principles to be applied in determining whether a fiduciary relationship exists were discussed in Hodgkinson v. Simms, [1994] 3. S.C.R. 377 at page 408: This conceptual approach to fiduciary duties was given analytical structure in the dissenting reasons of Wilson J. in Frame v. Smith, [1987] 2 S.C.R. 99 at 136, who there proposed a three-step analysis to guide the courts in identifying new fiduciary relationships. She stated that relationships in which a fiduciary obligation has been imposed are marked by the following three characteristics: (1) scope for the exercise of some discretion or power; (2) that power or discretion can be exercised unilaterally so as to affect the beneficiary’s legal or practical interests; and, (3) a peculiar vulnerability to the exercise of that discretion or power. Although the majority held on the facts that there was no fiduciary obligation, Wilson J.’s mode of analysis has been followed as a “rough and ready guide” in identifying new categories of fiduciary relationships: see LAC Minerals, supra, per Sopinka J., at p. 599, and per La Forest J., at p. 646; Canson, supra at p. 543; M. (K.) V. M. (H.), supra, at pp. 63-64. Wilson J.’s guidelines constitute indicia that help recognize a fiduciary relationship rather than ingredients that define it. [28] I can not conclude that the defendant agency and it’s employees were ever in a position of owing a fiduciary duty to Ms. A.. She was at no time in a position of dependance or vulnerability. Further, the fact of court involvement in the child protection proceedings precludes dependance or vulnerability. There is nothing in Ms. A.’s pleadings to support such a claim. [29] Ms. A. also pleads defamation of character. I take that to be her character. Himel J. in K. (H.V.) v. Children’s Aid Society of Haldimand-Norfolk, supra, stated: “In an action for defamation, the pleading must set out with particularity: (a) the alleged defamation, and (b) when, where, how, by whom and to whom it was made ...” [30] I agree with the applicant’s that there are no facts alleged in the Statement of Claim that meet these requirements. [31] I can find no basis to distinguish between the agency and its employee’s in this proceeding. [32] Ms. A.’s claims are primarily focused on the defendant’s actions involving her children. However, she does include herself as an aggrieved person. I am satisfied that this aspect of her claim is not caught by the authority in Syl Apps Secure Treatment Centre v. B.D., supra. [33] The Statement of Claim for the most part, seeks damages for Ms. A. in her role as mother of the affected children. She seeks damages in her own right at paragraph 9 where she states: “The agency left the plaintiff as a younger child in a situation of abuse. The defendant after being informed of abuse situations in relation to the plaintiff left the plaintiff in the abusive situation.” [34] I am assuming that the defendant she references is the agency. Ms. A. does not establish any link between her own wardship and the defendant Crosby or any of the defendant social workers. [35] The Statement of Claim fails to provide any factual basis to support the alleged “situation of abuse”. Hunt v. Carey Canada Inc., supra directs that I proceed on the assumption that the facts contained in the Statement of Claim are true. The Statement of Claim does not disclose facts, only a bald assertion termed a “situation of abuse”. [36] I see these pleadings as akin to those in Martini v. Nova Scotia (Minister of Community Services), 2000 CarswellNS 92. The Nova Scotia Court of Appeal supported Chief Justice Kennedy’s finding that the Statement of Claim failed to disclose a cause of action because “it fails to plead specific material facts.” [37] I am satisfied that it is plain and obvious that Ms. A.’s claims against the agency and it’s social workers cannot succeed. The Statement of Claim discloses no reasonable cause of action. All three applications are granted. J.