A.L. et al. v. Ontario (Minister of Community and Social Services), (2006) 218 O.A.C. 150 (CA)

• Judge: Sharpe, Armstrong and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 12, 2006
• Jurisdiction: Ontario
• Citations: (2006), 218 O.A.C. 150 (CA)

A.L. v. Ont. (2006), 218 O.A.C. 150 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. NO.072

A.L. and AE.L, a minor, by his Litigation Guardian A.L. (respondents/plaintiffs) v. Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community and Social Services (appellant/defendant)

(C44576)

Indexed As: A.L. et al. v. Ontario (Minister of Community and Social Services)

Ontario Court of Appeal

Sharpe, Armstrong and MacFarland, JJ.A.

November 24, 2006.

Summary:

The plaintiffs were a profoundly disabled child and his mother. The Province directed that no new Special Needs Agreements were to be entered into under s. 30 of the Child and Family Services Act. The plaintiffs alleged that this directive was part of a budget reduction strategy and that, in the absence of the Special Needs Agreement Program, parents unable to meet their disabled children's needs could only obtain assistance for them by surrendering custody to the Children's Aid Society. The plaintiffs alleged that this breached a statutory duty, a common law duty of care and parens patriae obligations, and that it was negligent. The plaintiffs moved for certification of their action as a class proceeding.

The Ontario Superior Court, in a decision reported at [2003] O.T.C. 539, dismissed the motion, on the basis that the allegations of negligence failed to disclose a cause of action. The plaintiffs appealed.

The Ontario Divisional Court, in a decision reported at 197 O.A.C. 287, allowed the appeal. The plaintiffs sought costs.

The Ontario Divisional Court, in a decision reported at 211 O.A.C. 247, awarded the plaintiffs costs fixed at $60,000. The Province appealed the decision on the merits.

The Ontario Court of Appeal allowed the appeal and set aside the order certifying the action as a class proceeding on the ground that the statement of claim failed to disclose a cause of action. As the Province did not seek costs, none were awarded.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Policies or "policy" decisions - The plaintiffs were a profoundly disabled child and his mother - The Province directed that no new Special Needs Agreements were to be entered into under s. 30 of the Child and Family Services Act - The plaintiffs alleged that this directive was part of a budget reduction strategy and that, in the absence of the Special Needs Agreement Program, parents unable to meet their disabled children's needs could only obtain assistance for them by surrendering custody to the Children's Aid Society - The plaintiffs alleged, inter alia, that the Province was negligent - The Ontario Court of Appeal held that the claim could not succeed - The court held, inter alia, that it was plain and obvious from the statute and the facts pleaded that the Province's decision to refuse to enter s. 30 agreements was a policy decision, as was their decision to terminate s. 30 agreements - See paragraphs 27 to 30.

Government Programs - Topic 5243

Health and social services - Handicapped or special needs persons - Funding for services - The plaintiffs were a profoundly disabled child and his mother - The Province directed that no new Special Needs Agreements were to be entered into under s. 30 of the Child and Family Services Act - The plaintiffs alleged that this directive was part of a budget reduction strategy and that, in the absence of the Special Needs Agreement Program, parents unable to meet their disabled children's needs could only obtain assistance for them by surrendering custody to the Children's Aid Society - The plaintiffs alleged, inter alia, that the Province was negligent - The Divisional Court referred to the parens patriae doctrine as the source for the Province's obligation to pay for the child's special needs, but cited no authority for the proposition - The Ontario Court of Appeal held that, apart from s. 30, the Province had no legal obligation to pay for the infant plaintiff's special needs - See paragraph 27.

Government Programs - Topic 5243

Health and social services - Handicapped or special needs persons - Funding for services - [See Crown - Topic 1645 , all Torts - Topic 77 and Torts - Topic 9162 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See third Torts - Topic 77 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - The plaintiffs were a profoundly disabled child and his mother - The Province directed that no new Special Needs Agreements were to be entered into under s. 30 of the Child and Family Services Act - The plaintiffs alleged that this directive was part of a budget reduction strategy and that, in the absence of the Special Needs Agreement Program, parents unable to meet their disabled children's needs could only obtain assistance for them by surrendering custody to the Children's Aid Society - The plaintiffs alleged, inter alia, that the Province was negligent - The Ontario Court of Appeal disagreed - The Minister was under no legal obligation to enter a s. 30 Special Needs Agreement and the plaintiffs had no legally enforceable right to insist that he do so - There was no proximity of relationship sufficient to give rise to a duty of care - Alternatively, residual policy considerations negatived the imposition of that duty - The allegation that the Minister acted improperly by terminating s. 30 agreements or by failing to provide adequate criteria or guidelines for their use could be addressed by way of declaratory action or a judicial review application - To recognize a private law duty of care would expose the Province to claims for substantial damages by many families and individuals who believed that they had not received adequate services - Recognizing a private law duty of care would represent an unwarranted and undesirable intrusion that could interfere with the sound administration of the Act - The Minister and the child welfare authorities had a difficult task and limited resources - Their priorities should be based on the general public interest, not the interests of particular individuals - See paragraphs 18 to 33.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - The plaintiffs were a profoundly disabled child and his mother - The Province directed that no new Special Needs Agreements were to be entered into under s. 30 of the Child and Family Services Act - The plaintiffs alleged that this directive was part of a budget reduction strategy and that, in the absence of the Special Needs Agreement Program, parents unable to meet their disabled children's needs could only obtain assistance for them by surrendering custody to the Children's Aid Society - The plaintiffs alleged, inter alia, that the Province was negligent - The Ontario Court of Appeal held that courts were not entirely powerless to review or control the Minister's exercise of the discretion conferred by s. 30 and it was not plain and obvious on the pleading that the plaintiffs would necessarily fail on their claim that the Minister was in breach of certain statutory duties, namely, failing to provide clear and consistent criteria for Special Needs Agreements and deciding to terminate their availability - However, since any duties or obligations contemplated by the statute were public in nature, they were not capable of giving rise to a private tort law duty of care or an action in negligence for damages - See paragraph 25.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - The plaintiffs were a profoundly disabled child and his mother - The Province directed that no new Special Needs Agreements were to be entered into under s. 30 of the Child and Family Services Act - The plaintiffs alleged that this directive was part of a budget reduction strategy and that, in the absence of the Special Needs Agreement Program, parents unable to meet their disabled children's needs could only obtain assistance for them by surrendering custody to the Children's Aid Society - The plaintiffs' amended statement of claim alleged negligence and misfeasance in public office - On appeal, the Ontario Court of Appeal set aside an order certifying the action as a class proceeding on the ground that the statement of claim did not plead facts capable of supporting a cause of action in either negligence or misfeasance in public office.

Torts - Topic 9151

Duty of care - Particular relationships - Claims against public officials, authorities or boards - General - [See first Torts - Topic 77 ].

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - The plaintiffs were a profoundly disabled child and his mother - The Province directed that no new Special Needs Agreements were to be entered into under s. 30 of the Child and Family Services Act - The plaintiffs alleged that this directive was part of a budget reduction strategy and that, in the absence of the Special Needs Agreement Program, parents unable to meet their disabled children's needs could only obtain assistance for them by surrendering custody to the Children's Aid Society - The plaintiffs alleged, inter alia, that the Province was negligent - The Divisional Court found that the plaintiffs had pleaded the factual elements of the tort of misfeasance in public office - The plaintiffs amended their statement of claim to assert a claim for misfeasance in public office - The Ontario Court of Appeal held that the misfeasance in public office claim essentially consisted of a general allegation that terminating s. 30 agreements was unlawful - Although this allegation gave rise to a public law claim which might form the basis for a judicial review application or an action for declaratory relief, it did not provide a foundation for a tort action for misfeasance in public office - See paragraphs 34 to 37.

Torts - Topic 9166

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Deprivation of statutory benefits - [See first Torts - Topic 77 ].

Cases Noticed:

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 5].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 17].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 18].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268, appld. [para. 17].

Wynberg et al. v. Ontario (2006), 213 O.A.C. 48; 269 D.L.R.(4th) 435 (C.A.), refd to. [para. 24].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388, refd to. [para. 24].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1; 112 D.L.R.(4th) 1; 19 C.C.L.T.(2d) 268, refd to. [para. 28].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201, refd to. [para. 29].

Eliopoulos et al. v. Ontario (Minister of Health and Long-Term Care) (2006), 217 O.A.C. 69 (C.A.), refd to. [para. 33].

Three Rivers District Council v. Bank of England (No. 3), [2000] 2 W.L.R. 1220; 257 N.R. 1 (H.L.), refd to. [para. 35].

Roncarelli v. Duplessis, [1959] S.C.R. 121, dist. [para. 37].

Statutes Noticed:

Child and Family Services Act, R.S.O. 1990, c. C-11, sect. 30 [para. 6].

Counsel:

Dennis W. Brown Q.C., Michele Smith, Malliha Wilson and Lise G. Favreau, for the appellant;

Won J. Kim, Victoria Paris, J. Adam Dewar and Megan B. McPhee, for the respondents.

This appeal was heard on September 12, 2006 by Sharpe, Armstrong and MacFarland, JJ.A., of the Ontario Court of Appeal. Sharpe, J.A., delivered the following decision for the court on November 24, 2006.