DD v Calgary Counselling Centre, 2017 ABQB 95

Court of Queen’s Bench of Alberta Citation: DD v Calgary Counselling Centre, 2017 ABQB 95 Date: 20170213 Docket: 1301 02611 Registry: Calgary Between: DD Plaintiff/Respondent - and - Calgary Counselling Centre and Jennifer Eld Defendants/Applicants Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2 . No one may publish the name or photograph of a child, or of the child's parent or guardian, in a way that reveals that the child is receiving, or has received, intervention services. Identification Ban – By Court order of Madam Justice C. Dario filed February 13, 2017, no one may publish the names of or information respecting the plaintiff or any family member in any manner that identifies them in connection with this action. NOTE: This judgment is intended to comply with the restrictions so that it may be published. FILE SEALED: By Court order of Madam Justice C.

Dario filed February 13, 2017, all documents filed in this action must be sealed in the court file, except for judgments and orders of the Court. _______________________________________________________ Reasons for Judgment of the

Honourable Madam Justice C. Dario _______________________________________________________ Appeal from the Decision by J.T. Prowse, Master in Chambers, Master in Chambers Dated the 2 nd day of November, 2015 ( 2015 ABQB 696 , Docket: 1301 02611) [ 1 ] The appellants, Jennifer Eld and Calgary Counselling Centre, appeal the decision of Master Prowse dated November 2, 2015, in which he dismissed their application for

summary judgment to dismiss the respondent, Mrs. D’s claim. [ 2 ] In the action, Mrs. D seeks damages for Ms. Eld’s negligence, negligent misrepresentation and defamation that are alleged to have arisen from: (1) counselling services Ms. Eld provided to the respondent and her family, and (2) reports made by Ms. Eld to Child and Family Services (“CFS”) while Ms. Eld was employed by the Calgary Counselling Centre. Mrs. D’s claim against the Calgary Counselling Centre is for negligence and vicarious liability in respect of Ms. Eld’s actions. [ 3 ] Mrs. D’s position is that Ms.

Eld’s reports were a material factor considered in investigations by CFS, and subsequently resulted in Mrs. D being removed from the family home and losing all custody rights and access to the children, other than supervised visits. She alleges that Ms. Eld’s reports caused the CFS investigation to be predisposed to conclude she was a bad mother. [ 4 ] The Appellants sought

summary judgment before a Master dismissing Mrs. D’s claim on the basis that their statutory and other defences would defeat the claim. They appeal the dismissal of their

summary judgment application, asserting that the Master failed to place sufficient weight on section 4(4) of the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 (the “ CYFEA ”), which states that no action lies against a person who has made a report to CFS, believing a child is in need of intervention, unless the reporting is done maliciously or without reasonable and probable grounds for the belief. They also argue that the Master did not sufficiently consider that qualified privilege provides an absolute defence to the defamation claim in this case.

Finally, the Appellants submit that the Master did not take into account that there was no causal connection between Ms. Eld’s alleged wrongful acts and the estrangement between the Respondent and her children. Background [ 5 ] Mr. D and Mrs. D have three children, born in March 1995, December 1997 and July 2005. They have been involved in protracted high conflict family litigation. [ 6 ] On May 1, 2009, Mr. D and Mrs. D had a domestic violence incident. On May 4, 2009, Mr. D obtained an interim ex parte order from the Court granting him primary care of the children, with weekend access to Mrs.

D; however, the parties continued to live together after this Order was issued, with Mrs. D leaving the matrimonial property when there was discord in the home. The interim ex parte order was confirmed in court on May 8, 2009. [ 7 ] Later that month, in response to the domestic violence incident, Mr. D and Mrs. D attended marital counselling with Ms. Eld at the Calgary Counselling Centre. Between May and August 2009, Ms. Eld counselled both Mr. D and Mrs. D. During that time, Mrs. D disclosed some history of depression and other mental health issues. In August 2009, Mrs.

D was assessed by a psychiatrist with the Calgary Counselling Centre, who made no mental health diagnosis except that Mrs. D was suffering from some depression. After that assessment, Mrs. D withdrew from further joint counselling sessions with Ms. Eld. At that time, Ms. Eld determined it was not necessary to make an official report to CFS regarding this family. [ 8 ] Mr. D, however, continued to communicate with Ms. Eld, including sending her letters containing allegations about Mrs. D, one of which was 27 pages long. He later had individual counselling sessions with Ms.

Eld, as did the two older children, without Mrs. D’s knowledge or participation. [ 9 ] Six months after joint counselling ceased, between February and October 2010, Ms. Eld made certain unwritten reports to CFS regarding the danger Mrs. D posed to the children. Mrs. D asserts that these reports were primarily based on untested and untrue statements made by Mr. D to Ms. Eld, including assertions that Mrs. D was mentally unstable and suffering from possible paranoia, anxiety, depression and Obsessive-Compulsive Disorder. Ms. Eld also reported that it was known that Mrs.

D was emotionally and physically abusive to the children. On the evidence before me, it does not appear that Ms. Eld independently verified any of these allegations, which were made to her by Mr. D, other than through statements made during, and conclusions she may have drawn from, her past counselling of Mrs. D jointly with Mr. D. [ 10 ] Much of the CFS file is redacted and it is not possible in all cases to ascertain whether the statements made are reported as allegations of Mr. D, a party to a high conflict divorce, or as statements of fact by Ms. Eld, a counselor who at one point counselled both Mr.

D and Mrs. D. In parts of the redacted CFS file, however, it appears that Ms. Eld reports certain concerns as fact, rather than as Mr. D’s allegations. At the same time, it is not always clear in the reports that Ms. Eld was no longer counselling Mrs. D at that time. Mrs. D contends these positional reports were misleading to CFS as they appeared to be an independent or objective corroboration of the facts as

alleged by Mr. D. [ 11 ] Ms. Eld’s reports to CFS also included statements that Mrs. D had been diagnosed in the past with, and may continue to have, Borderline Personality Disorder. This later statement was a conclusion Ms. Eld drew from use of the DSM IV diagnostic tool. Ms. Eld was not qualified to administer, nor did she properly administer, this tool, and she was subsequently professionally disciplined for her use of it, as is explained more fully below. As indicated in the CFS record, Ms. Eld applied the diagnostic tool without Mrs. D present and based her analysis only on Mr.

D’s responses to questions regarding Mrs. D. This was done even though Ms. Eld was fully aware of the high conflict nature of Mr. D’s and Mrs. D’s relationship. [ 12 ] The D family was investigated by CFS on five occasions. Ms. Eld’s communications coincided with two of these investigations: January 2010 and August 2010. [ 13 ] On December 2, 2010, Mr. D obtained an ex parte child support order, a sole custody order limiting Mrs. D to supervised access, and exclusive possession order for the matrimonial home. Mrs.

D was removed from the matrimonial home and lost most of her parental and guardianship rights. [ 14 ] Following a Practice Note 7 Report prepared for the Court by a parenting expert in July 2011, Mrs. D regained overnight access to her youngest child, but not to the older children. [ 15 ] On June 15, 2012, the Alberta College of Social Workers (the “College”), the governing body for Ms. Eld’s profession, held a hearing into Ms. Eld’s conduct. Subsequently, Ms. Eld was professionally disciplined. The College found Ms.

Eld had worked beyond her competence with respect to the use of the DSM IV diagnostic tool in assessing Mrs. D, and that she breached client confidentiality by sharing her views on this possible diagnosis with CFS without her client’s permission. Ms. Eld made her diagnosis and reported to CFS that Mrs. D had a Borderline Personality Disorder, even though Ms. Eld was aware that a psychiatrist with the Calgary Counselling Centre had previously found Mrs. D to have depression, but no other diagnosis. The College also found that Ms. Eld failed to screen for the possibility that Mrs.

D was subjected to domestic violence (although there has been no finding that Mrs. D was a victim of domestic violence). These breaches were considered unprofessional conduct, and Ms. Eld was reprimanded. [ 16 ] On February 20, 2013, the statutory director of the CYFEA reviewed Ms. Eld’s reports at Mrs. D’s request, and directed that “an addendum be placed in the CFS file to indicate that Ms. Eld’s statements and accusations are untrue and not to be relied on”. [ 17 ] Mrs.

D asserts that around January 13, 2016, CFS reversed their opinion about her abilities as a parent, and have approved her as the sole caregiver for Mr. D’s 14-year old special needs son, whom he fathered with one of Mrs. D’s sisters. This child has lived with Mrs. D since August 2015. [ 18 ] In the course of their family litigation, Mr. D and Mrs. D have had several parenting regimes. The regime in place since 2010 was modified in May 2013 to a joint custody order and shared parenting of the youngest child. On January 20, 2016, the Court ordered that Mrs.

D be granted sole parenting of, and access to, the youngest child (and last remaining minor) of the D family. Pursuant to that order, Mr. D was precluded from access to this child, other than limited communications monitored by the Court and the child’s counsel. [ 19 ] The damages Mrs.

D claims in this litigation relate to what she states were erroneous communications to CFS containing defamatory statements, which resulted in an investigation by CFS, loss of parental and guardianship rights of her children, irreversible damage to the relationship with her children, damage to her reputation, and consequent emotional stress and anxiety, among other things. Findings of the Master [ 20 ] The decision of Master Prowse dismissing the

summary judgment application is reported at DD v Calgary Counselling Centre , 2015 ABQB 696 . The Master found that there was nothing in the evidence to suggest Ms. Eld acted out of malice. Regarding the statutory defence in section 4(4) of the CYFEA , however, he held at paragraph 8 that: If Ms. Eld had simply reported to CFS that these parents, involved in a high conflict relationship, were making allegations against each other of child abuse, and left it up to CFS to determine which if any of those allegations were true, then likely no action would lie against Ms. Eld. … [ 21 ] The Master found that Mrs.

D would in that instance be protected by section 4(4) of the CYFEA . Given the manner of Ms. Eld’s reporting, however, he questioned whether or not Ms. Eld had reasonable and probable grounds for making these reports to CFS, and concluded this was a matter that must be tested at trial. [ 22 ] The Master found that the Appellants failed to meet the onus of proof required for

summary judgment. He concluded that the record was insufficient to adjudicate the issue of reasonable and probable cause under section 4(4) of the CYFEA . Further, he could not conclude that this defence was so compelling that it had a high likelihood of success. In his decision, the Master highlighted some of the factors that could be considered by a trial judge in deciding whether Ms. Eld had reasonable and probable grounds to make a report with CFS, including the following at paragraph 15: • While acting as joint counsellor to Mrs. D and Mr. D, Ms. Eld did not disclose to Mrs.

D that her husband had made various allegations of child abuse against her. Why did Ms. Eld not raise these allegations with Mrs. D and discuss them with her? • Why did Ms. Eld report Mr. D’s allegation of abuse against his spouse, but did not report Mrs. D’s allegations of child abuse against him? • Why did Ms. Eld wait until February of 2010 to report suspected child abuse against Mrs. D when she had not reported child abuse during the time when the couple was undergoing joint counselling with her between May and August of 2009? Ms. Eld only made a

report to CFS when Mr. D approached her for individual counselling in February of 2010, and brought forward renewed allegations of child abuse at that time. • When making a report to CFS in March of 2010, why did Ms. Eld not advise CFS that CCC’s [the Calgary Counselling Centre’s] psychiatrist had examined Mrs. D in August of 2009 and concluded that the only problem suffered by Mrs. D was depression? Instead Ms. Eld made the following report to CFS without mentioning the recent diagnosis by CCC’s psychiatrist: [Mrs. D] has a long history of mental health. She has been seeing psychiatry for twenty years.

There is no psychiatrist at this time. [Mrs. D] was seeing Dr. Brooks at Foothills Outpatient Services from 1990 - 1992. She had attempted self-harm in 1990. [Ms. Eld] feels there are probably diagnosis (probably by Dr. Brooks) for obsession, depression, anxiety, paranoia, and memory concerns. Bi-polar has also been mentioned – ‘hearing things’. [Mrs. D] is probably on medication. (errors in original) • Why did Ms. Eld, in that same report of March 2010 raise the prospect that Mrs. D suffered from Borderline Personality Disorder? Here is the relevant quotation from CFS’s file: [Ms. Eld] felt that [Mrs.

D] might have a Borderline Personality Disorder amongst other diagnosis. [Mr. D] informs that [Mrs. D] had been diagnosed with BDP in the past. [Ms. Eld] went through the criteria in the DSM with [Mr. D] for BPD. [Mr. D] checked off all of the criteria for BPD. (errors in original) With respect to the above quote, Ms. Eld was ultimately disciplined by her professional association and signed a consent order admitting “that [she] had acted inappropriately in making use of the DSM-IV and in telling CFS that [Mrs.

D] demonstrated symptoms of Borderline Personality Disorder without diagnostic training in mental disorders”. [ 23 ] The Master found further evidence was required at trial to evaluate these considerations. I s sues [ 24 ] As a preliminary issue, should the additional evidence sought to be relied upon by each of the Appellant and Respondent be admitted? [ 25 ] Did the Master err in declining to grant

summary judgment dismissing Mrs. D’s claim? Specifically:

a) Does either qualified privilege or the statutory provisions of the CYFEA provide an absolute defence to the Respondent’s claims in this case?

b) Have the Appellants established that there is no causal connection between Ms. Eld’s alleged misconduct and the damage asserted by the Respondent, namely, estrangement between the Respondent and her children? Analysis 1. Should the additional evidence be admitted for the purpose of this appeal? [ 26 ] Rule 6.14(3) of the Alberta Rules of Court , Alta Reg 124/2010 (the “ Rules ”) establishes that the test for admission of additional evidence on an appeal of a Master’s decision is whether the evidence is relevant and material.

This test has been applied in a broad manner, tending towards permitting evidence in rather than excluding it: Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 at para 16 ; Boyd v Cook , 2013 ABCA 266 at para 5 . [ 27 ] In this case, the additional evidence the Appellants seek to be admitted is a March 7, 2016 affidavit sworn March 7, 2016 by HD, the eldest daughter of Mr. D and Mrs. D (the “HD Affidavit”). The HD Affidavit addresses Mrs. D’s behaviours and HD’s recollections of the domestic situation prior to when Mrs. D was removed from the D home.

The affiant is adamant in her affidavit that her negative views of her mother predated Ms. Eld’s intervention, and that it was her mother’s inability to accept responsibility for her actions prior to her mother leaving the home that damaged their relationship. [ 28 ] The Appellants argue that the statements in the HD Affidavit negate any causal connection between Ms. Eld’s actions and the severing of the relationship between Mrs. D and her children. As the source is from one of the children, now an adult, the Appellants argue this information is highly relevant and material to the

summary judgment application. [ 29 ] Mrs. D also seeks to file additional evidence in response to the HD Affidavit. Mrs. D swore an affidavit on March 22, 2016 (the “DD Responding Affidavit”), in which she disclaims much of the HD Affidavit as mis-recollections of past events, and states that the HD Affidavit is largely unreliable due to Mr. D’s extreme alienation of the children against her. [ 30 ] Mrs. D argues that the HD Affidavit cannot be relied upon and is untrue; it is, therefore, not relevant.

The Respondent points to the Court’s Order of January 20, 2016 (confirmed in March 2016), in which she was granted primary decision making for, sole parenting of, and access to, the last remaining minor of the D family, while Mr. D was precluded from any access. Mrs. D states that this is consistent with a concern that the children have experienced extreme alienation as a result of their father’s efforts, and that HD’s statements are not reliable. [ 31 ] I acknowledge that in a case such as this, where the basis of the damages claimed is the consequent destruction to Mrs.

D’s relationship with her children, the Court must be alive to the possibility of alienation of the children and the consequent questions around reliability of their affidavit (or viva voce ) evidence. Reliability, however, may be addressed by the weight given to the evidence, not its

admissibility. If the evidence is relevant and material, it is to be admitted. [ 32 ] Both of these affidavits meet the lax test for additional evidence and will be admitted, subject to my determination of the weight to be given to the evidence. 2. Did the Master err in declining to grant

summary judgment dismissing Mrs. D’s claim? A. Standard of Review [ 33 ] The standard of review for this appeal from a Master’s decision is correctness, which is also sometimes called “non- deferential” or an “appeal de novo ”: Bahcheli at paras 3, 30 . The Appellants bear the onus of establishing that the relief sought should be granted. “An appeal from a decision of a Master is heard de novo ”: Cruickshank v University of Lethbridge , 2010 ABQB 186 at para 2 . B.

Summary Judgment [ 34 ] The Appellants are the defendants in the action. They apply for

summary dismissal of the action against them, pursuant to Rule 7.3 of the Rules , which permits a party to apply for

summary judgment on the basis that there is no merit to a claim. [ 35 ] The Supreme Court of Canada has directed that “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims”: Hryniak v Mauldin , 2014 SCC 7 (“ Hryniak ”) at para 5 . Applying proportionality, the court is urged, where possible, to give

summary remedies: 1214777 Alberta Ltd v 480955 Alberta Ltd , 2014 ABQB 301 (Master) (“ 1214777 ”) at para 18. [ 36 ] Hryniak was adopted by the Alberta Court of Appeal in Windsor v Canadian Pacific Railway Ltd , 2014 ABCA 108 (“ Windsor ”). The Court of Appeal explained that

summary judgment is appropriate “where there is no genuine issue requiring a trial”, where a fair and just disposition can be made on the existing record: at para 13. [ 37 ] Hence, this Court must examine the record to see if a disposition that is fair and just to all parties can be made on the existing record, or if there is any issue of merit that genuinely requires a trial, bearing in mind the proportionality between the nature of the claim and damages sought to the cost of a full trial. [ 38 ] The starting point is whether it is essential for the court to see the witnesses in order to resolve the dispute: 1214777 at para 17.

If so, the matter must go to trial. If not, the court must analyse the evidence to decide whether a

summary determination can be made. In analysing the evidence, the following considerations paraphrased from paragraph 17 of 1214777 are instructive: 1. The court is to presume that the best evidence from both sides is before it and make its determination based on that evidence, rather than what evidence may subsequently be produced; consequently, the court must treat

summary judgment applications with due caution; 2. The court is to ask whether a negative inference can be drawn from the absence of evidence on certain points; 3. The court should consider the admissibility of the evidence at this stage; 4. Next, the court should ask whether there is a conflict in the evidence and, if so, whether the conflict has been resolved on cross examination, or whether the evidence giving rise to the conflict is purely self-serving and is otherwise unsupported; 5.

The court will next examine the evidence and consider whether the issue can be fairly decided on the factual record before the court; and 6. Finally, having performed that evidentiary exercise, a defendant will be entitled to judgment if the plaintiff cannot prove an essential element of its cause of action, or if the defendant has a complete defence. [ 39 ] The onus on a

summary judgment application is with the applicant (in this case, the Appellants) to establish that there is no genuine issue for trial: 1214777 at para 18. C. Affidavit Evidence [ 40 ] There is much conflicting affidavit evidence contained in the parties’ affidavits, including the affidavits admitted as additional evidence on this appeal. Both the Respondent and the Appellants allege that the other is relying on hearsay evidence, particularly on the issue of causation.

The affidavits filed as additional evidence also conflict, and the opposing parties each argue that the affidavit filed by the other is unreliable. Hearsay Evidence [ 41 ] The Appellants argue Mrs. D’s affidavit filed in response to the original application for

summary dismissal (the “DD Affidavit”) contains hearsay, as well as opinion and innuendo evidence. The Respondent argues that the affidavit of Dr. Robbie Babins- Wagner, Chief Executive Officer of the Calgary Counselling Centre, filed in support of the original application (the “Babins-Wagner Affidavit”), is hearsay. The Babins-Wagner Affidavit attaches as an exhibit the 522-page CFS file, and provides summarizing commentary as well as opinion evidence.

[ 42 ] Rule 13.18(3) of the Rules requires an applicant to provide evidence of matters within the personal knowledge of the affiant, not evidence based on hearsay:

(3) If an affidavit is used in support of an application that may dispose of all or part of a claim, the affidavit must be sworn on the basis of the personal knowledge of the person swearing the affidavit. [ 43 ] The rule does not address what evidence a respondent may rely upon in responding to a

summary judgment application, including whether hearsay evidence is admissible. The applicant and the respondent are in different positions: if granted, a

summary judgment application leads to a final order, while the dismissal of a

summary judgment application does not. Hearsay may be necessary in response to an application for

summary judgment if the evidence is not within the personal knowledge of the respondent: Condominium Plan 9320022 v Acta General Inc , 2004 ABQB 932 at paras 19-20 . The expectation is that other witnesses will be called at trial in place of the hearsay evidence. [ 44 ] Thus, although Mrs. D is relying on hearsay evidence to respond to certain of the Appellants’ arguments, such hearsay statements have some probative value limited to this

summary judgment application and are permitted. I will assess the appropriate weight to place on such evidence. In contrast, the Appellants will not be entitled to rely upon any hearsay evidence for this application. To the extent the Babins-Wagner Affidavit attaches relevant documents, it is allowed. I will consider the relevant documents, however, I attach no weight to the document summaries contained in the Babins-Wagner Affidavit, as I have found some of the summaries to leave out information that provides important context and I am able to review the documents directly.

To the extent that certain statements in both the Babins-Wagner Affidavit and the DD Affidavit are opinion, draw conclusions or are speculative, those statements will be given little or no weight: McDonald v Brookfield Asset Management Inc. , 2016 ABCA 375 (“ McDonald ”) at para 18 . D. Basis for

Summary Judgment [ 45 ] The Appellants rely on two arguments for

summary dismissal. First, they argue that there is a complete defence to all of Mrs. D’s claims. Specifically, they argue that section 4(4) of the CYFEA precludes liability for claims against the party making the report, and qualified privilege precludes liability for defamation. Second, they argue that the Respondent cannot make out all of the elements of her claims, and in particular, that Mrs. D will not be able to establish a causal connection between Ms. Eld’s actions and the damages claimed by Mrs. D. [ 46 ] In her action, Mrs.

D also includes other causes of action within her claims of negligence and defamation, including negligent misrepresentation. Neither party made specific mention of these additional claims in their submissions, but they are part of the action that the Appellants seek to have dismissed. Other than as globally addressed in the discussion of causal connection below, I will not separately address these causes of action further in this decision.

Complete Defence to Claim [ 47 ] Turning to the first issue, the Appellants state that the Master failed to place sufficient weight on the statutory provisions of the CYFEA as a defence to the action, and further, did not sufficiently consider that qualified privilege provides an absolute defence to the defamation claim by the Respondent in this case.

i) Statutory Protection [ 48 ]

Section 4 of the CYFEA contains an obligation: 4(1) Any person who has reasonable and probable grounds to believe that a child is in need of intervention shall forthwith report the matter to a director. [ 49 ] This obligation applies even where “the information on which the belief is founded is confidential and its disclosure is prohibited under any other Act”: ss 4(2). If the person who believed intervention was required is registered under

an Act regulating a profession or occupation prescribed in the regulations, failure to comply with

section 4 can result in an offence punishable by a fine, and in default of payment, by imprisonment of up to 6 months: ss 4(5) and (6). [ 50 ] To protect such individuals from the ramifications of making such a report, the CYFEA states in section 4(4) that no action lies against the person making such a report, unless the reporting is done maliciously or without reasonable and probable grounds for the belief. [ 51 ] It is significant that the legislative protection does not apply if either condition is met – if reporting is done maliciously or without reasonable and probable grounds for the belief.

This differs from similar legislation in other jurisdictions that employ the conjunctive term “and” to require both conditions to be satisfied before the statutory protection is lost. Thus, the case law may vary from jurisdiction to jurisdiction on this point. (See, for example, G(

R) v Christison , [1996] SJ No 702 (QB) , where the Saskatchewan Court of Queen’s Bench considered the statutory privilege set out in

section 12 of The Child and Family Services Act , SS 1989-90, c C-7.2.) [ 52 ] In his decision, the Master accepted that Ms. Eld had a basis to make some form of report, although the reporting in each instance was not specifically reviewed. The Master took issue with the content of the reports, and the omission of other information that perhaps should have been reported to provide a more balanced or complete report. [ 53 ] Mrs. D’s argument, as I understand it, is that Ms. Eld’s reports were made maliciously, and in a manner that exceeded that for which she had reasonable and probable grounds.

As a result, she argues that the Appellants cannot rely on this section. In addition, Mrs. D states Ms. Eld made half a dozen reports to CFS against Mrs. D (that included providing detailed medical information dating back to the 1990s). Mrs. D argues that this is over-reporting, although I note that at least some of the reports were initiated by CFS requests. [ 54 ] The Appellants submit that once there are reasonable and probable grounds to believe a child is in need of intervention, the

entirety of the report is covered by the statutory protection of section 4(4) .

They argue that the Court should not retrospectively transect the tone and content of what may have been communicated, particularly since these reports are typically done over the phone and the “evidence” of the content of such reports is whatever is contained in the informant’s and recipient’s notes and past recollections. [ 55 ] The Appellants also state that where a person is in a profession or occupation governed under the CYFEA , the informant is typically operating under time constraints and with some urgency, and does not have the luxury of time to carefully craft the content of the report.

Once the report is made, it is the job of CFS to then investigate, which includes obtaining collateral information from a variety of sources. The Appellants argue CFS conducted this investigation in this instance. [ 56 ] The Appellants submit there cannot be an obligation on the Court to determine whether the specific language chosen garners protection as opposed to whether the report is protected. If the standard is that high, they argue, then it would be an impossible standard to meet and the protection of the statute would be meaningless.

This would impact on the public policy of encouraging individuals to report where there is a reasonable and probable basis to do so for the protection of children, and create a dangerous chilling effect. Leading Case [ 57 ] The leading authority on the issue of this type of statutory protection is the Supreme Court of Canada decision in Young v Bella , 2006 SCC 3 (“ Young ”). In that case, a university professor reviewed a paper on sexual assault submitted by a student, which contained, as an appendix, a document providing a first-hand account from a victim of sexual abuse repeating the cycle as an adult.

The student failed to include a reference to the textbook from which she obtained this document, and the professor misunderstood it to be the student’s autobiographical statement. As a result of the professor’s misunderstanding, a report was made to Child Protection Services, and the student’s name was placed on the Child Abuse Registry.

Further, the suggestion that she was a suspected child abuser was reported to the RCMP and discussed amongst professors and social workers. [ 58 ] In Young , the SCC found that the defendants did not have any reasonable cause for their suspicions about the plaintiff, both because the appendix attached to the study was not information about a child who was in danger or in need of protection from the plaintiff, and also because the basis for making the report was far too speculative.

The SCC concluded that the informant in that case acted on nothing more than speculation and conjecture in making his report, and there was no reasonable cause for making a report at all: at paras 32, 34. [ 59 ] The SCC held that, pursuant to the applicable statute (the Newfoundland Child Welfare Act , RSN 1990, c C-12, s 38), there is an immediate obligation to report when an informant has information that a child may be in danger or in need of protection (in contrast with the CYFEA in Alberta, which requires reporting where there are reasonable and probable grounds that a child is in need of intervention).

Further, the language considered in Young suggests there is no duty on the informant to investigate the information before reporting to ensure it is accurate: at para 49. [ 60 ] At the same time, the SCC held, however, that the public policy objective of protecting children must still be balanced with concern for third parties who may be “adversely affected by irresponsible reports”: at para 50. To balance these competing interests, the applicable Newfoundland statutory provision includes language that informants who make reports “maliciously or without reasonable cause” are not protected by the statute.

The requirement for “reasonable cause” strikes “an appropriate balance between the protection of children, the protection of third parties against unfounded allegations, and the protection of informants”: at para 2. [ 61 ] With respect to establishing a duty of care as part of a claim in negligence, the SCC in Young found that proximity between the parties pertained not just to the filing of the report; rather it was grounded in the relationship between the professors and student, a relationship that “created mutual rights and responsibilities.” Arguably, the relationship of client (or former client) and counsellor in the present case would also create certain rights and responsibilities that could impact upon a finding of negligence.

Application to Present Case [ 62 ] There are similarities between the fact scenario in Young and the facts in the present case. The informant, Ms. Eld, had a relationship with Mrs. D that gave rise to rights and obligations. There are also differences that distinguish Young , where there was no child potentially in danger. In contrast, here Ms. Eld provided information relating to children who potentially were in danger or in need of protection from Mrs. D.

Also, in the present case, it is not disputed that some form of report was appropriate, or even statutorily mandated, while in Young , there was no basis for making a report. In Young , the SCC addressed whether a report was required at all, while it is the nature and content of the report that is in question on this appeal. [ 63 ] In Young , the SCC affirms that where there are reasonable and probable grounds for the belief that a child is in need of intervention, informants have no obligation to investigate the truth of those grounds and must immediately report such information to the authorities: at para 49.

There is a difference, however, between having no obligation to investigate and having an obligation not to mislead, misstate or overstate in the report provided. [ 64 ] The Appellants’ position - that once the requirement for a report is captured by the statutory protection, the Court should not look further at the statements made - is problematic. To accept that the Court should not look into a report further if it is protected by section 4(4) would mean that if there is any basis for a report, it is irrelevant what is contained in the report.

This is so even if the content of the report goes well beyond, or is unrelated to, the justifiable reasons for making the report. That could result in too broad a protection for the person making the report, to the detriment of the person against whom the report is being made. [ 65 ] Although in his decision the Master suggested that Ms. Eld only had the obligation to advise of an issue, and leave CFS to investigate from there, merely reporting that there is an issue without providing details needed for the CFS to conduct an investigation does not necessarily satisfy the public interest objective.

It may be that the CFS representatives will be better able to assess the situation the more specific information they are provided. The court must bear in mind the ultimate objective of the reporting obligation in assessing how broad a scope of protection the statute provides. Some context or specificity regarding the perceived risk is helpful in my

view and ought not to be discouraged. [ 66 ] To the extent that Ms. Eld did not properly characterize the source of her reports, Ms. Eld may have inappropriately lent credence to the assertions of one of the parties to the high conflict family dispute. This is reflected for example in comments from Paul Zahayko, a Calgary and area assessor for CFS, that CFS had concerns about Mrs. D’s emotional state and that a “non-family third party confirmed concerns” about Mrs. D’s involvement with the children. For the purpose of this

summary judgment application and based on the evidence before me, that third party is presumed to be Ms. Eld. [ 67 ] Accurate characterization of the source of information is especially important when, as here, it is included in a report from a professional whose opinions may carry more weight with agencies and the courts, and who are presumed to be objective.

Although it may be necessary in high conflict divorce cases to report to CFS, the informant should be aware that information received from one of the parties may be biased, and should take care in how such information is communicated. [ 68 ] Pursuant to section 4(4) of the CYFEA , Ms. Eld had no obligation to confirm that Mr. D’s allegations were true prior to her reporting them to CFS provided they constituted reasonable and probable grounds for making a report.

That does not necessarily give her impunity, however, to adopt his statements as truth and report them as facts to CFS, or to leave out material information or assertions of the other party (particularly where she was in a prior counselling relationship with Mrs. D); such a message communicated to CFS is potentially misleading. [ 69 ] To enjoy statutory protection, the content of the report must be tied to the reasonable and probable grounds forming the basis of the concern.

Where the report is materially misleading compared to the information in the informant’s possession, it cannot be said that the informant had a reasonable and probable basis to make such report. A report can be “materially misleading” if the informant: (1) was materially inaccurate in communicating the information in his possession; (2) withheld certain information where for example, there are two or more versions of events told to the informant; or (3) did not properly attribute the source of the information (for example, stating as fact what is merely an allegation of another party).

There may be other ways in which a report can be materially misleading.

The informant has no obligation, however, to investigate or verify the information that gives rise to reasonable and probable grounds for concern; the protection will still apply even if the information reported later turns out to be false as long as the informant’s report is not materially misleading as to the information known by the informant at the time. [ 70 ] In the context of the information in the possession of the informant, only the portions of the report that are not materially misleading (again, based on the information in the informant’s possession) enjoy the protection of the statute.

Small missteps in reporting will not result in a loss of the statutory protection. The misstatements must mislead CFS in a material way to expose the informant to a claim. Any analysis of the contents of the report cannot be so minute that it would have a chilling effect on reporting, or would place an informant in the untenable position of legally being required to make a report which could then expose them to liability. [ 71 ] In the present case, there is no dispute that there was a basis to make some type of a report to CFS, given the level of conflict and behaviours reported to Ms. Eld by Mr. D.

Was there a reasonable and probable basis for Ms. Eld to report that she felt Mrs. D might have Borderline Personality Disorder, amongst other diagnoses? It is unlikely. Do other statements of Ms. Eld fall outside of the reasonable and probable grounds protection? Possibly. In reporting some of Mr. D’s concerns as fact, rather than attributing them to him, were Ms. Eld’s reports misleading? On the basis of the record before me, some appear to be. [ 72 ] Although the record is highly redacted, the following are some examples of statements that give the Court pause: • As previously stated, Ms.

Eld’s communications appear at some points to be statements of fact rather than allegations of one party. For example, one CFS record dated February 2, 2010, which appears to be a report from Ms. Eld states “Mrs. D is very unstable and she becomes hostile; and makes poor choices.” That same report states “Mum has depression, anxiety, and there are concerns about paranoia. She Dr. shops, but has no psychiatrist of record.” It also states “There are no concerns about drugs or alcohol.” The latter comment can be contrasted with Mrs. D’s statements raised in counselling regarding Mr.

D’s overuse of prescription medication, supported by receipts of medication produced confirming Mr. D is a habitual user of prescribed OxyContin and fentanyl. • While the CFS file contains comments from Ms. Eld regarding Mrs. D’s mental state and possible symptoms, other markers of stability do not appear to be mentioned in her reports, notably, that Mrs. D held a full-time employment position with the federal government for approximately 30 years at the time of the reports. Mr. D’s employment history, if any, over the same period is similarly not addressed. • In another communication on March 2010, Ms.

Eld is recorded as having said: “The children have been exposed to the mother’s outbursts. The mother makes bad choices when she is angry. She had the kids in the vehicle in 2006 when the brakes weren’t safe.” In that report, it states “the mother has accused [Mr. D] of trying to choke her.” This suggests a distinction between Ms. Eld’s presentation of Mrs. D’s allegations compared to those of Mr. D. Further, it is not clear from the CFS record that Ms. Eld was not at the time of these communications in a counselling relationship with Mrs.

D, although that is noted in a record dated September 22, 2010 to a different caseworker. • The March 2010 communication is recorded as including the following comment: [Ms. Eld] felt that Mrs. D might have a Borderline Personality Disorder amongst other diagnosis. [Mr. D] informs that Mrs. D had been diagnosed with BDP in the past. [Ms. Eld] went through the criteria in the DSM with [Mr. D] for BPD. [Mr. D] checked off all of the criteria for BPD. The August 2009 assessment by the psychiatrist, in which Mrs. D is found to have some depression and otherwise no diagnosis, is not mentioned. Ms.

Eld was aware of that assessment. These communications all occurred well after counseling with Mrs. D had ceased. [ 73 ] Some of the evidence relating to Ms. Eld’s communications with CFS may be inaccurately recorded by CFS caseworkers, as

the communications were made over the telephone. This is an obstacle that Mrs. D, as plaintiff, will have to overcome to convince atrial judge on a balance of probabilities that whatever was said during the communications made more than five years ago is sufficientlyascertainable now so as to substantiate her claim. [74] It is possible that Ms. Eld will be able to establish at trial that the reports she made fall within the protection of section 4(4) ofthe CYFEA, and that in the context, the communications she made were appropriate and reasonable.

At this stage in the proceedings andbased on the record before me, however, I am unable to come to that conclusion. Further, Ms. Eld admits that some of thecommunications she had with CFS with respect to Mrs. D were in response to CFS contacting her and not due to her making a “report”. A trial judge may need to determine whether responses to independent inquiries from CFS fall within the protection of s.4(4) of theCYFEA. I find there are triable issues and, as a result the Appellants have not made out a case for

summary judgment dismissing theRespondent’s claims based on this statutory protection. ii) Qualified Privilege as Defence to Defamation Claim [75] The Appellants next argue that the Master erred in failing to consider the defence of qualified privilege. Qualified privilegecan defeat a claim of defamation, but it is not a defence to Mrs. D’s negligence claim. Thus, even had the Master considered thisargument, it alone would not have been sufficient to obtain

summary judgment in the action in its entirety. [76] The essence of the defence of qualified privilege lies in the recognition at law that it may be necessary in the public interestfor certain information to be shared in certain circumstances, usually where there is a legal, social or moral duty to communicate theinformation and a reciprocal interest in receiving it: Grant v Torstar Corp, 2009 SCC 61(“Grant”) at para 34; Hill v Church ofScientology of Toronto, (SCC), [1995] 2 SCR 1130 (“Hill”) at para 143 (citing Lord Atkinson in Adam v Ward, [1917]AC 309 (HL), at 334). [77] Qualified privilege is conditional.

It attaches to the occasion upon which the communication is made, and not to thecommunication itself. Qualified privilege can be defeated if it can be shown the defendant acted with malice: Grant, at para 30. Malicemay be spite or ill-will, or it may be ““any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interestwhich the occasion created”: Hill, at para 145. [78] Although much case law focuses on the issue of malice, there are other bases upon which qualified privilege may be defeated,including when the limits of the duty are exceeded: Hill, at para 146.

In Hill, the SCC explained that “…the information communicatedmust be reasonably appropriate in the context of the circumstances existing on the occasion when that information was given”: at para147. [79] This Court has concluded that qualified privilege can also be lost through over-publication. Over-publication may occur whenthe defamatory words are published beyond the privileged occasion to too broad an audience, or “defamatory words can be excessive,and go beyond what is required for the qualified occasion”: Hill v Johnston, 2006 ABQB 212 at para 17.

As explained by Raymond EBrown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2d ed, loose-leaf (Toronto, Ont:Carswell, 2011) (“Brown”) at 13-603 – 13-604: [The party reporting] must not exceed that which is required to allow him to perform his duties or protect the interests involved. Therefore, a “judge has to consider the nature of the duty or right or interest and to rule whether or not the defendant has publishedsomething beyond what was germane and reasonably appropriate to the occasion, or has given to it a publicity incommensurate to theoccasion”. [80] In

summary, privilege may be defeated by express or indirect malice, or by any indirect motive or ulterior purpose thatconflicts with the sense of duty or the mutual interest that the occasion created: Hill at para 145; Pope v O’Halloran, 2005 ABCA 263 atpara 25. Malice may also be established by showing that the defendant spoke dishonestly, or with knowing or reckless disregard for thetruth: Hill at para 145.

In addition to malice, qualified privilege may be defeated where there is over-publication, either to too broad anaudience or by including excessive defamatory statements beyond what is required by the occasion. [81] In this matter, Mrs. D argues that the Appellants cannot rely on qualified privilege, as Ms. Eld provided more informationabout Mrs. D than was necessary or reasonably appropriate in the circumstances. She argues that this over-publication defeats thatdefence. Application to Present Case [82] In the circumstances of this case, the parties do not dispute that Ms.

Eld was obligated to make a report, and CFS wasobligated to receive it. There is prima facie an instance of qualified privilege that defeats Mrs. D’s defamation claim. [83] While qualified privilege applies, the Respondent asserts that Ms. Eld’s actions demonstrate malice, defeating qualifiedprivilege. In particular, she points to notations written in Ms. Eld’s notes during an early session of Mr. D’s and Mrs. D’s couplescounselling session to call CFS. Ms. Eld later explained to the College investigator that this was for “future planning”. In opposition toMrs.

D’s argument that there was malice, the Appellants point to Mrs. D’s own statements, along with those of numerous otherindividuals, that Ms. Eld was duped by Mr. D into believing his statements and taking his side. I find the evidence that Ms. Eld actedwith express malice in this case is razor thin. [84] It may be possible for Mrs. D to argue that some of Ms. Eld’s statements were made with a reckless disregard for the truth,comprising indirect malice, although the burden falls upon Mrs. D, to establish this element: Jordan v Alberta Law EnforcementResponse Teams Ltd, 2013 ABQB 330 (“Jordan v ALERT”) at para 41.

Indicia of malice are described in Jordan v ALERT as the“nature, character and relevance of the words used or from evidence as to the behaviour, motive and knowledge of the defendant whenpublishing them”, and “by the constant repetition of the same or similar remarks”: Jordan v ALERT at para 41, citing Raymond Brown,The Law of Defamation in Canada, Vol 2 (Toronto, Ont: Carswell, 1987) at 919, 946 in ATU v ICTU, (1997) (AB

KB), 195 AR 161 at paras 71-73. To succeed in such an argument, Mrs. D would need to establish more than just a failure to investigatethe allegations as, pursuant to the CYFEA, Ms. Eld is not required to investigate; that is CFS’s obligation. On the record before me onthis appeal, Mrs.

D would not meet the burden to establish indirect (or direct) malice. [85] In this case, the central issue in my view is whether the limits of the duty or interest have been exceeded through over-publication, and whether the statements were reasonably appropriate in the context of the circumstances existing on the occasion,thereby defeating the defence of qualified privilege. In other words, were the statements made by Ms. Eld germane and reasonablyappropriate in the circumstances?

If not, to the extent they are defamatory, they will not be protected by the privilege. [86] In the present case, I am satisfied there is a genuine issue for trial as to whether some of the statements may have gone beyondwhat was appropriate in the context, or may have exceeded the limits of the duty or interest. These include some of the concernsidentified by the Master and set out fully in paragraph 22 above, including where Ms. Eld filed what might be characterized as amisleading report in March 2010 regarding Mrs. D’s psychiatric diagnoses. [87] Further, although Ms.

Eld may have had a basis, or indeed an obligation, to report the concerns raised by Mr. D, the manner inwhich they were stated may have similarly gone beyond what was appropriate or been misleading, particularly in the circumstance of ahigh conflict divorce. Rather than reporting that there were concerns raised by one party, Ms.

Eld’s reports appear to have, on at leastone occasion, adopted the concerns as her conclusions or statements of fact. [88] I am aware of some cases that may support a contrary finding, such as McLoughlin v Kutasy, (SCC), [1979]2 SCR 311 at paras 17 and 23, citing Adam v Ward at 339, where the Supreme Court of Canada held that qualified privilege extends toprotect statements made even though the language used is violently or excessively strong, if having regard to all the circumstances of thecase, the person making the report might have honestly and on reasonable grounds believed that what he wrote or said was true.

In thepresent case, however, it is not an issue of excessively strong language used in place of something more mild. The issue is the use ofpotentially misleading language, where a counsellor working regularly with high conflict situations may have reported one of the parties’perspectives as statements of fact and the other as mere allegations, or not at all, without any verification. [89] For these reasons, I find the Appellants have not made out the case for

summary dismissal of the defamation claim on thebasis of qualified privilege. Ms. Eld and the Calgary Counselling Centre may indeed succeed in making out a qualified privilege defencethat Mrs. D cannot defeat at trial. On the record before me at this time, however, I am not satisfied that there was no over-publication. Causation/Proximate Cause [90] The Appellants submit that even if the court finds there is a triable issue on liability, the Respondent has failed to establish acausal connection between the claims as alleged and the damage asserted by her, namely, estrangement between Mrs. D and herchildren.

On this basis, the Appellants argue that Mrs. D’s claims (other than defamation) may be dispensed with by way of

summaryjudgment. If the Appellants can establish there is no causal connection between Ms. Eld’s conduct and the harm suffered by Mrs. D,however, this would not dispose of the defamation action. “When defamation is proved, damage shall be presumed”: Defamation Act,RSA 2000, c D-7, s 2(2). Therefore, establishing a causal connection is not necessary for damages in a defamation claim. [91] With respect to negligence, at trial, Mrs. D would be required to establish not only that Ms. Eld was negligent, but that Ms.Eld’s negligent acts caused her damages: Clements v Clements, 2012 SCC 32 at para 8.

For the purpose of this analysis, it is assumedthat negligence has been established. [92] The Appellants argue that causation cannot be established between Ms. Eld’s reports and the damages Mrs. D alleges for thefollowing five reasons: 1. The Appellants point to various other people who were interviewed as part of the CFS investigation, with a list of individuals setout in the Babins-Wagner Affidavit. They argue that these other reports formed or confirmed the basis upon which CFS made itsconclusions, and further that the obligation of CFS to conduct its own review and make its own determination, defeats Mrs.

D’s ability toestablish a causal connection between Ms. Eld’s reports and CFS’s ultimate determination. The Appellants note that Mrs. D has notbrought an action against CFS in respect of its investigation pertaining to the D children. 2. The Appellants point out that CFS had been involved with this family previously in 2006 and 2009. They argue that this family hada history of issues that engaged CFS that preceded Ms. Eld’s involvement, reflecting pre-existing estrangement or problems betweenMrs. D and her children. 3.

The Appellants point to a Practice Note 7 Report prepared in July 2011, which indicated that the youngest child missed Mrs. Dgreatly and felt safe with her, while the older children had much less desire to spend time with Mrs. D and felt her behavior was primarilyto blame for the status of their relationship. The Appellants contend, therefore, that the relationship issues between Mrs. D and herchildren were not caused by Ms. Eld’s reports, but by other long-standing issues. 4. The Appellants argue that the Tribunal appointed by the College in Ms.

Eld’s disciplinary proceeding did not find a causalrelationship between Ms. Eld sharing inappropriate diagnostic impressions with CFS and the difficulties Mrs. D later faced in relation tocustody and access. 5. The Appellants state that all Mrs. D was required to do was to obtain a report from her current counsellor to confirm she wassuitable for unsupervised access and/or joint parenting.

Had she done so, the Appellants argue, her access to her children would havebeen restored. [93] I will deal with each argument in turn. [94] First, the Appellants point to various other persons who were interviewed as part of the CFS investigation, with a list ofindividuals set out in the Babins-Wagner Affidavit. Upon receiving a report, it is the obligation of CFS to conduct an investigation to

obtain information from other sources to determine whether a child is in need of intervention; it does not assume that a report is sufficient. It is clear in this case that CFS obtained information from many third party sources in an attempt to corroborate the claims. The Appellants argue that Eld’s reports were subsequently investigated before the CFS took any action, the inference being these other sources raised sufficient concerns to base or confirm CFS’s position regarding the D children. Further, the obligation of CFS to conduct its own review and make its own determination defeats Mrs.

D’s ability to establish a causal connection between Ms. Eld’s reports and CFS’s ultimate determination. This is a compelling argument. [ 95 ] In response, Mrs. D argues that Ms. Eld’s reports caused CFS to have an inaccurate negative view of her, which affected the method or outcome of their investigation, triggering the December 2, 2010 order, in which she lost custody and access rights to her children. She relies on the unredacted portions of the CFS reports and the direction from the Director of CFS, who indicated that Ms. Eld’s comments were to be disregarded. Related to causation, Mrs.

D further points to Ms. Eld’s acknowledgement in her affidavit sworn April 29, 2015 that the February 2010 CFS investigation appears to have been initiated by her call reporting concerns raised by Mr. D over the several days preceding the call. Mrs. D also relies upon Mr. D’s counsel’s submissions in the December 2010 court application that Mr. D needed to obtain exclusive possession of the matrimonial home and sole custody of the children, and suggested that CFS would likely apprehend the children if Mr. D did not obtain the order.

These examples are factors to consider in establishing causation. [ 96 ] The CFS file is heavily redacted. Given the statutory framework surrounding such redaction in

section 126.1 of the CYFEA , where only the Minister may direct the release of certain information, I draw no adverse inferences against either party for failing to provide a less redacted or unredacted file. [ 97 ] Although many other individuals were interviewed, of the information in the CFS file that is not redacted, there are some examples that suggest more information on the nature of the reports of these other parties is necessary to assess how the CFS came to its conclusions, and whether Ms. Eld’s reports played a causal role. For example, one referenced report is of Dr.

Stanzeliet who responded to an allegation that Mrs. D was keeping her 6-year old daughter in diapers. Her statement was that “[w]hile she had not seen Mrs. D in years and could not comment on Mrs. D specifically, she would have concerns with anyone keeping a 6-year old in diapers.” She went on to specify reasons why a child aged 6 would continue to use diapers. To me, this part of the report has little probative value unless the fact of Mrs. D keeping her child in diapers is first independently established.

As much of the information on the file is redacted, it is not possible to get a full sense of whether the reports of others are similarly in response to statements made by Ms. Eld in response to Mr. D’s prompting. There is not even an indication whether any of Ms. Eld’s reports have been redacted in the CFS file before me. There are several references in the CFS report to numerous professionals involved not being concerned with Mr. D’s care of the children, and to uncorroborated allegations by Mrs. D of Mr. D’s sexual abuse of the children.

The details of these reports and findings have not however been provided to the Court. [ 98 ] Without the above details, it is difficult to ascertain the impact of Ms. Eld’s reports. It is possible that with a less redacted CFS file in the Court’s possession, the Appellants could establish no genuine issue for trial on the issue of causation. With this information, it may be possible to establish that had Ms. Eld provided services and made reports in a manner that was not negligent, the same outcome would have resulted in terms of Mrs. D’s relationship with her children. In such case, Mrs.

D would fail in establishing that but for Ms. Eld’s negligence, the damages as alleged would not have occurred. Based on the heavily redacted CFS file before me, however, there are too many redacted entries to be able to properly make such assessment. Therefore, I am not satisfied there is no genuine issue for trial in this regard.

While the trial judge will likely also only be able to review the redacted CFS file, there may be some greater scope to call witnesses to provide additional evidence relating to the reports. [ 99 ] The Appellants next point out that CFS had been involved in with this family previously, in 2006 and 2009, before Ms. Eld’s first report in 2010. In reviewing the CFS file, however, it indicates that the 2006 investigation was closed as the “family had connected to the appropriate resources for therapeutic and counselling services”. In 2006, both parents appeared to be considered the source of the conflict.

Although this is evidence of pre-existing matrimonial problems, it is not apparent that the 2006 intervention was a causal factor in the December 2, 2010 order or the estrangement between Mrs. D and her children. [ 100 ] The May 1, 2009 domestic violence incident alleging violence by Mrs. D against the children triggered another CFS investigation, again before Ms. Eld’s first report in 2010. On May 4, 2009, prior to the commencement of counselling with Ms. Eld, Mr. D obtained an ex parte court order for primary parenting. That order was confirmed on May 8, 2009.

The Appellants state that this is partial evidence that the acts of Ms. Eld were not the proximate cause of the decisions made by CFS or the courts; it is not possible for Mrs. D to establish a causal link between Ms. Eld’s involvement and the subsequent court order arising out of the May 2009 instance. [ 101 ] It is not clear from the CFS file whether Ms. Eld was the party that subsequently confirmed reports that Mrs. D slapped one of the D children in the May 1 domestic violence incident.

Even though the May 4 and 8, 2009 court orders were obtained prior to CFS’s investigation and therefore before this confirmatory report, the orders did not grant exclusive possession of the home, and Mrs. D continued to live in the matrimonial home with the family after these orders were granted. She would leave the matrimonial home temporarily if there was a high conflict incident. [ 102 ] The D family was investigated by CFS again in January 2010, August 2010 and February 2011. Ms. Eld’s reports coincided with the January 2010 and the August 2010 investigations, including Ms.

Eld’s reports on February 9, March 11, and August 23, 2010. [ 103 ] The May 2009 orders do not relate to Ms. Eld’s reports, but of relevance is the Court’s subsequent determination to grant sole custody of the children and exclusive possession of the home to Mr. D on December 2, 2010. In reviewing the transcripts of the ex parte proceeding, although Ms. Eld is not mentioned, the entire proceeding appears to have been premised on what Mr. D’s counsel suggests will be CFS’s action if Mr. D does not obtain the requested sole custody order. The CFS file supports the assertions of Mr.

D’s counsel, as it indicates that “the file will close at this time as [Mr. D] has been granted court orders which protect the children at this time”. [ 104 ] Based on the evidence above, it appears that there is some merit to Mrs. D’s claim that the December 2, 2010 court order was based upon the CFS’s investigation of, and involvement with, the D family. The extent to which the CFS position was causally connected to Ms. Eld’s reports is a genuine issue for trial.

[ 105 ] Third, the Appellants point to a Practice Note 7 Report prepared in July 2011, which indicated that the youngest child missed Mrs. D greatly and felt safe with her; while the older children had much less desire to spend time with Mrs. D and felt her behavior was primarily to blame for the status of their relationship. The Appellants argue that the relationship issues between Mrs. D and her children were not caused by Ms. Eld’s reports. [ 106 ] Mrs.

D argues that the comments in the Practice Note 7 Report with respect to the two older children demonstrated flaws in the procedure and revealed an attempt on the part of Mr. D to manipulate the outcome of the mother and child assessment. This is not an accurate reflection of the report, however. Regarding the two older children, the assessor provides an overview of their experiences, opinions and views. Some of these views and the conclusions that can be drawn from them do not reflect positively on either parent.

The report reveals that there are specific issues with the mother’s engagement with the older two children that cause these children to feel a greater sense of consistency and predictability with their father. Their preference not to have visitation (or at least not unsupervised visitation) with their mother is clear. That said, child preferences are only one factor the courts take into account in determining custody and access issues. The comments of the children occurred when they were in the exclusive care of their father, although the report drew no conclusion on alienation.

In any event, the claim regarding the youngest child still survives. [ 107 ] With respect to the views of the children, as stated above, I have allowed two affidavits to be filed as additional evidence on this appeal – the HD Affidavit sworn March 7, 2016 and, in response, the March 22, 2016 DD Responding Affidavit. The affidavits conflict and the opposing parties each argue that the affidavit filed by the other is unreliable, and therefore should be given little or no weight. [ 108 ] The fundamental question in a

summary judgment application is whether it is essential for the court to see the witnesses in order to resolve the dispute: 1214777 at para 17. If so, the matter must go to trial. If not, conflicts in the evidence can still defeat a

summary judgment application. In evaluating conflicting evidence on a

summary judgment application, the Court should consider “whether the conflict has been resolved on cross examination, or whether the evidence giving rise to the conflict is purely self-serving and is otherwise unsupported”: 1214777 at para 17. [ 109 ] In this case, the Appellants argue that the DD Responding Affidavit filed in reply to the HD Affidavit is purely self-serving. While that may be the case, I find it is not unsupported. Another affidavit filed by Mrs. D is the affidavit of JR, another one of her sisters, sworn June 25, 2015 and filed with the Court in 2015.

It similarly paints a different picture of the home environment and contrasts with the assertions made by HD. Also, I find that the removal of Mr. D’s access to the youngest child (even supervised), in addition to the contradicting affidavit evidence of others, including JR, raise questions about the reliability of the HD Affidavit in light of the alienation claim. [ 110 ] The additional evidence submitted on this issue conflicts and has not been resolved by cross-examination.

Given the basis of the claim, it is doubtful that the conflict could be resolved on cross-examination. [ 111 ] As the intent of submitting the HD Affidavit is to disclaim any causal connection between the acts of Ms. Eld and the loss of relationship between the Respondent and her children, I also must consider that the views of HD are of hers alone and may not speak to the impact – if any – that Ms.

Eld’s actions ultimately may have had on the other two D children. [ 112 ] As a result of all of these considerations, I am not able to place much weight on the HD Affidavit for the purpose of defeating the causality element on this

summary dismissal application. [ 113 ] I also dispose of the last two points. The Appellants argue that the Tribunal did not find a causal relationship between the sharing of inappropriate diagnostic impressions by Ms. Eld with CFS and the difficulties Mrs. D later faced in relation to custody and access and, therefore, neither should I. Mrs. D argues, however, that the Tribunal was concerned only with the professional behaviour of its member, and not with the contents of the CFS file that contained its notes regarding Ms. Eld’s reports.

I find the Tribunal’s determinations on causation are not binding in this action; it is the role of this Court to consider on all the evidence before it whether there is a causal connection. [ 114 ] Finally, the Appellants state that all Mrs. D was required to do was to obtain a report from her current counsellor to confirm she was suitable for unsupervised access and/or joint parenting in order to have her access restored. They have produced a lawyer’s letter from the family litigation to this effect. They state it was Mrs.

D’s inability to obtain such a report that resulted in her prolonged separation from her children. There is no evidence before this Court as to whether Mrs. D’s counsellor was in a position to make a report of this nature, or that it would have the effect of restoring unsupervised access. There is no court order before this Court in the family litigation confirming that access would indeed be restored upon receipt of a report from Mrs. D’s counsellor.

As a result, it is not possible to make a determination on this point based on the record before me. [ 115 ] Had the Appellants been able to satisfy me of some of the following, I may have found that there is no causal connection between Ms. Eld’s negligent acts and the damages alleged: 1) that the CFS investigation, subsequent to Ms. Eld’s reports, were not tainted by or based primarily on Ms. Eld’s reports (i.e. information provided by others to CFS, apart from Ms. Eld’s negligent reports, were sufficient for CFS to take the same position regarding the D family); 2) that if the CFS relied primarily on Ms.

Eld’s reports, this was due exclusively to a failure of CFS in the manner of its investigation, and not due to Ms. Eld’s actions; 3) that the resulting CFS investigation and its position regarding Mrs. D did not cause Mrs. D to lose custody of her children on December 2, 2010; and 4) that the relationship between Mrs. D and her children was damaged by something other than Mrs. D’s loss of custody of her children on December 2, 2010, or other consequences of Ms.

Eld’s intervention. [ 116 ] There is, however, not enough evidence before the court to establish any or enough of these points to determine that but for Ms.

Eld’s negligent acts (again, assumed for this part of the analysis), the same alleged damage to Mrs. D’s relationship with her children would have occurred. [ 117 ] In conclusion, the Appellants must establish there is no genuine issue for trial. An application for

summary judgment dismissing an action can successfully be resisted without proving there is merit to the case on the balance of probabilities: McDonald at para 13 . On this application, the Court does not have sufficient information to conclude there is no causal connection, given the conflicting affidavit evidence and the need to hear from other witnesses, in part as a result of the large amount of redaction in the CFS file. There are enough questions raised in the redacted file that I find the facts and argument as laid out are not sufficient for

summary judgment to be granted. [ 118 ] I caution Mrs. D that although I have found Ms. Eld and the Calgary Counselling Centre have not satisfied me there is no genuine issue for trial regarding causation, at trial, she will have to establish causation on a balance of probabilities. As the plaintiff, she will bear the burden of proof.

Summary [ 119 ] The Appellants have failed to meet the test for

summary judgment. I uphold the Master’s decision dismissing the

summary dismissal application for the reasons set out above. [ 120 ] The issue of costs shall be addressed in a separate attendance before me. Heard on the 26 th day of July, 2016 and the 3 rd day of January, 2017. Dated at the City of Calgary, Alberta this 13 th day of February, 2017. C. Dario J.C.Q.B.A. Appearances: DD Plaintiff/Respondent - Self-Represented Litigant David J. Corrigan, Q.C. for the Defendants/Applicants