S.D PLAINTIFF And: Eastern Regional Integrated HEALTH Authority First DEFENDANT And: Child, Youth v. Family Services, 2021 NLSC 100

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : S.D. v. Eastern Regional Integrated Health Authority 2021 NLSC 100 Date : July 15, 2021 Docket : 200901T1808 Between: S.D PLAINTIFF And: Eastern Regional Integrated HEALTH Authority First DEFENDANT And: Child, Youth and Family Services Second DEFENDANT Restriction on Publication: There is a Publication Ban pursuant to

section 55 of the Children, Youth and Families Act on the names and any other identifying information of the children referred to herein, as well as the name of their parent. Before: Justice Sandra R. Chaytor Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 7, 2021 Date of Judgment: July 15, 2021

Summary: The Plaintiff sought to amend a Statement of Claim for a second time. The proposed amended pleading was based in negligence and breach of fiduciary duty. The Court found that the proposed amendment failed to raise a triable issue as in the circumstances of child protection, no duty of care was owed to the Plaintiff by the Defendants nor did the Defendants stand in a fiduciary relationship with the Plaintiff. The Court further found that the amended pleading was embarrassing and lacked proper particulars.

Held: The Application was dismissed with costs to the Defendants on a Column 5 basis. Appearances: Gregory A. French, Q.C. Appearing on behalf of the Plaintiff G. John Samms Appearing on behalf of the Defendants Authorities Cited: CASES CONSIDERED: Butler v. Kloster Cruise Ltd. (1992), (NL SC), 98 Nfld. & P.E.I.R. 138, 311 A.P.R. 138(Nfld. S.C.(T.D.)); Petten v. E.Y.E. Marine Consultants (1994), (NL SC), 120 Nfld. & P.E.I.R. 313, 373 A.P.R. 313(Nfld. S.C. (T.D)); Baumhour v. Williams, (NS CA), [1977] 22 N.S.R. (2d) 564, 2 A.C.W.S. (C.A.); Harness HorseOwners Assn. of Halifax (County) v.

Sussex Racetracks Inc. (1989), (NS CA), 94 N.S.R. (2d) 449, 247 A.P.R. 449(S.C.(App.Div)); Hunt v. T & N. plc, (SCC), [1990] 2 S.C.R. 959; Knight v. Imperial Tobacco Canada Ltd., 2011 SCC42; Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19; D.(B.) v. Children’s Aid Society of Halton (Region), 2007 SCC 38; Perez v.Galambos, 2009 SCC 48; C.(D.) v. Children’s Aid Society of Cape Breton Victoria, 2008 NSSC 196, aff’d., 2009 NSCA 73; S.(C.H.) v.Alberta (Director of Child Welfare), 2010 ABCA 15; Dempsey v. Envision Credit Union, 2006 BCSC 750; Lundrigan v. Short, 2000CarswellNfld 242, N.J.

No. 239 (S.C. (T.D.)); Lacroix v. Macdonald and Hoffe Appraisals Ltd., 2015 NLTD(G) 85; Young v Young, (SCC), [1993] 4 S.C.R. 3; Petten v. E.Y.E. Marine Consultants (1998), (NL SC), 179 Nfld. &P.E.I.R. 94, 546 A.P.R. 94 (Nfld. S.C. (T.D)) STATUTES CONSIDERED: Child, Youth and Family Services Act, S.N.L. 1998, c. C-12.1; Children and Youth Care and ProtectionAct, S.N.L. 2010

Chapter C-12.2; Children, Youth and Family Act, S.N.L 2018

Chapter C-12.3 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D. REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION AND BACKGROUND [1] It has been over 11 years since the Plaintiff, a then self-represented litigant, filed a handwritten Statement of Claim in thisaction on April 13, 2009.

In it she alleged various wrongs had been inflicted upon her by the Defendants including having been:assaulted by an access worker employed by Eastern Regional Integrated Health Authority; intimidated, harassed and discriminatedagainst by social workers employed with the then Child, Youth and Family Services (now Child and Youth Services); and negligentlyprescribed medications which contributed to her losing custody of her two children. [2] The Defence for both Defendants was filed promptly on April 24, 2009.

Over three years later, on December 12, 2012, thePublic Trustee was appointed as guardian ad litem of the Plaintiff. Some five years later, the Plaintiff brought an application to amendthe Statement of Claim. That application was dismissed by Whalen C.J. on January 24, 2019 on the basis that the proposed amendmentrelating to the Defendants’ conduct had not been pleaded with sufficient particularity and was embarrassing.

The Court determined atthat time that the combined effect of these deficiencies left the proposed amended pleading fundamentally flawed and the Defendants tospeculate regarding the factual basis of the claim.[1] [3] Following dismissal of the first application to amend, discoveries were held including examinations of social workers.Plaintiff’s counsel then determined a further application to amend the Statement of Claim would be necessary. Accordingly, the Plaintiffnow brings this application seeking leave to amend the Statement of Claim pursuant to Rule 15.01(1)(

c) of the Rules of the SupremeCourt, 1986, S.N.L. 1986, c.42, Sch. D. The Defendants oppose the application primarily on the basis that the proposed AmendedStatement of Claim does not raise a triable issue. [4] As the first application seeking to amend was not successful, the Statement of Claim that remains before the Court is the

handwritten pleading prepared by the Plaintiff while she was self-represented. The proposed Amended Statement of Claim is attached to the application. It omits the original allegations of assault, intimidation, harassment, discrimination, and negligence in prescription of medications. Beyond the first three paragraphs (which identify the parties), the proposed amendments encompass the entirety of the pleading. The proposed amended paragraphs are as follows: 4.

At all material times, the Second Defendant (CYFS), was under the responsibility of the First Defendant, and will be referred collectively herein as “the Defendants.” 5. The Public Trustee was appointed the Plaintiff’s guardian ad litem by an Order of Justice Marshall dated December 12, 2012. 6.

At all material times, and from a period beginning in or about June 2000 the Plaintiff was a “client” of the Defendants with respect to issues of custody and access to her [two] children [who are now 20 and 18 years of age]… [2] The Plaintiff had an active “file” with the Defendants since June 2000, except for a short period when the file was closed from Nov. 20, 2000, and reopened in December 2000. 7. The Plaintiffs’ [sic] children reside with the Plaintiffs’ parents in a Child Welfare Allowance Arrangement . 8. The Plaintiffs [sic] states that the Defendants had a duty and obligations to the Plaintiff.

The Defendants have breached their duties and obligations to the Plaintiff, by refusing to permit custody and access to the Plaintiff’s children even when the Plaintiff complied with the Defendants’ stated requirements. 9. The Plaintiff repeats the foregoing and states that as a result the Defendants are liable to the Plaintiff for breach of fiduciary duty, negligence, misfeasance of public office and/or abuse of authority [3] . 10. The Plaintiff states that a duty exists at common law to take reasonable steps to avoid causing foreseeable mental injury [to] another party.

The Plaintiff states the Defendants are liable to the Plaintiff for the negligent infliction of mental injury or psychiatric damage . 11. The Plaintiff states that as a result the Plaintiff has suffered injury including depression, anxiety, sleeplessness, fatigue, headaches, loss of enjoyment of life, and damages to her self-esteem and her emotional well-being. 12. The Plaintiff therefore claims against the Defendant:

a) Non-pecuniary general damages;

b) Special damages, to be assessed at trial;

c) Interest pursuant to the Judgment Interest Act , RSNL 1990, c. J-2 , as amended ;

d) Costs ;

e) Such further relief that this Court may order . [ 5 ] The issue to be determined is whether the Plaintiff should be granted leave to amend the Statement of Claim as proposed. [ 6 ] For the reasons that follow, the application is dismissed with costs to the Defendants. analysis [ 7 ] Rule 15.02 provides in relevant part: 15.02.

(1) If an amendment does not include the addition, deletion, substitution or correction of the name of a party to a proceeding, a party may amend a pleading filed by that party other than an order: …

(

c) at any time with leave of the Court on such terms as it thinks just.

(2) The Court may allow an amendment notwithstanding the effect of the amendment will be to add or substitute a new cause ofaction, if the new cause of action arises out of the same or substantially the same facts as the original cause of action. [8] In Butler v. Kloster Cruise Ltd. (1992), (NL SC), 98 Nfld. & P.E.I.R. 138, 311 A.P.R. 138 (Nfld. S.C.(T.D.)), the Court, at paragraph 12, noted that the power to amend a pleading is discretionary and in deciding whether it should exerciseits discretion, four principles are to be applied.

To be allowed, an amendment must: (1) not cause injustice to the other side; (2) raise atriable issue; (3) not be embarrassing, and (4) be pleaded with particularity. [9] In Petten v. E.Y.E.

Marine Consultants (1994), (NL SC), 120 Nfld. & P.E.I.R. 313, 373 A.P.R. 313 (Nfld.S.C. (T.D)) at paragraph 92, the Court elaborated on the test set out in Butler by explaining that even in a situation where the proposedamendment would not cause injustice to the other side, before allowing the amendment the Court must be satisfied that the amendmentwould comply with the other rules of pleading pursuant to Rule 14. [10] The purpose behind analyzing an application to amend a pleading through the prism of these four principles is to ensure thatthe proposed amendment complies with other rules of pleading and therefore would not be vulnerable to a subsequent application thatcould lead to the striking of the pleading on other grounds.

Would permitting the amendment cause injustice to the Defendants? [11] The law with respect to the first principle is that leave to amend will be granted when the applicant is acting bona fide and noinjury is done to the other party which cannot be compensated by costs or otherwise [Butler at para. 16 citing Baumhour v. Williams, (NS CA), [1977] 22 N.S.R. (2d) 564, 2 A.C.W.S. (C.A.); and Harness Horse Owners Assn. of Halifax (County) v.Sussex Racetracks Inc. (1989), (NS CA), 94 N.S.R. (2d) 449, 247 A.P.R. 449 (S.C.(App. Div))]. [12] I am unable to conclude that the Plaintiff is not acting bona fide.

Furthermore, although this litigation has been prolonged todate and this is the second attempt at amending the Statement of Claim, I am not able to conclude that the Defendants would suffer anyharm that could not be compensated by costs should leave to amend be granted. As such, the Plaintiff has met the first prong of the test. [13] However, the inquiry does not end there.

Even if an amendment will not cause injustice to the responding parties, beforeallowing an amendment the Court must be satisfied that the amendment complies with the other rules of pleading encapsulated by thesecond, third and fourth prongs of the Butler test.

Does the Amended Statement of Claim raise a triable issue? [14] Both parties submit that the key issue to be determined on this application is whether the proposed Amended Statement ofClaim raises a triable issue. [15] The Plaintiff’s purported causes of action as set out in the proposed Amended Statement of Claim are: negligence, breach offiduciary duty, and misfeasance in public office and/or abuse of authority.

On the hearing of the application, counsel for the Plaintiffconfirmed that the Plaintiff was not asserting misfeasance in public office or abuse of authority as she is not alleging deliberate orunlawful conduct. The only causes of action that she is seeking to advance are negligence or breach of fiduciary duty. In the Plaintiff’ssupplemental brief, it is stated, “the basis of the claim really grounds in negligence.” In this decision I will deal with both negligence andbreach of fiduciary duty as possible causes of action as put forward by Plaintiff’s counsel in oral submissions.

Preliminary Issue [16] Let me begin by addressing a point that the Court raised with the parties which arises from the first application to amend. Atparagraph 27 of that decision, Whalen C.J. in dealing with the triable issue principle stated: The Defendants have conceded this point. Given the low threshold to be met, I am satisfied that the amendments relating to this issuedisclose a reasonable cause of action.

Insofar as the proposed pleading on the second application to amend is similar to that of the first application in terms of the allegationsand issues (except for the wrongful dismissal claim which the Plaintiff is not pursuing), the Court asked counsel to address what, if any,impact the ruling in the first application to amend may have on the Court’s determination of the triable issue principle in the currentapplication. [17] Counsel for the Defendants submitted that on the first application the triable issue principle was not argued.

At that time, theDefendants believed that the alleged wrongful dismissal claim could raise a triable issue, so they chose not to argue the triable issueprinciple with respect to any of the potential causes of action. Instead their argument concentrated on contesting the proposedamendment on the basis of the third and fourth Butler principles – being that the pleading was embarrassing and lacked sufficientparticulars.

Counsel for the Plaintiff agreed that the triable issue principle was not litigated on the first application and, in fact, in thePlaintiff’s supplemental brief, it is submitted that this is the primary issue to be determined on the current application.

[18] It is clear from the parties’ submissions that the primary issue in the current application before the Court is whether there was aduty of care owed to the Plaintiff by the Defendants which could give rise to a triable issue. This issue was not litigated in the firstapplication. As such, I am satisfied that there is no legal impediment to the triable issue principle being determined by the Court on thisapplication.

The Test [19] In Petten, at paragraph 98, Green J., in referencing the triable issue principle stated that the party seeking an amendment mustpass the threshold requirement of being able to show that the amendment discloses a reasonable cause of action. He cautioned, however,that at this stage the Court must not try the merits of the claim. The threshold test is low being the same as that which is applied when anapplication is taken under Rule 14.24 to strike out a pleading because no cause of action is disclosed. The Court referred to the test as setout by the Supreme Court of Canada in Hunt v.

T & N. plc, (SCC), [1990] 2 S.C.R. 959 which has become known as the“plain and obvious” test. Is it plain and obvious that the proposed pleading discloses no reasonable claim and that it is certain to fail? [20] The test to be applied on an application to strike a pleading for disclosing no reasonable cause of action, has been more recentlyrevisited by the Supreme Court of Canada in two decisions. The first is Knight v.

Imperial Tobacco Canada Ltd., 2011 SCC 42 in whichthe Court, at paragraph 21, stressed the importance of taking a generous approach and erring on the side of permitting a novel butarguable claim to proceed to trial. This approach recognizes that the law is not static and unchanging and that actions that yesterday weredeemed hopeless may tomorrow succeed. [21] On the other hand, in the second and more recent case of Atlantic Lottery Corp. Inc. v.

Babstock, 2020 SCC 19, the SupremeCourt of Canada confirmed the importance of applications to strike as a tool in the promotion of timely and affordable access to the civiljustice system. Brown J., writing for the majority stated at paragraph 18 that, where possible courts should resolve legal disputespromptly, rather than referring them to a full trial.

This includes resolving questions of law by striking claims that have no reasonablechance of success. [22] Against this legal framework, in assessing whether there is a triable issue, I must examine the elements of the purported causesof action to determine whether the proposed Amended Statement of Claim discloses a reasonable cause of action.

The Basis of the Claim [23] The allegations of negligence and breach of fiduciary duty on which the proposed Amended Statement of Claim is based arisein the context of the Plaintiff having been a “client” of the Defendants with respect to issues of custody and access of her childrenbeginning in 2000 (paragraph 6 of the proposed pleading). In paragraph 7 of the proposed Amended Statement of Claim, it is stated thatthe Plaintiff’s children reside with her parents in a “Child Welfare Allowance Arrangement”. Paragraph 8 states: “the Defendants had aduty and obligations to the Plaintiff.

The Defendants have breached their duties and obligations to the Plaintiff by refusing to permitcustody and access to the Plaintiff’s children even when the Plaintiff complied with the Defendants’ stated requirements.” Paragraph 9then states that “The Plaintiff repeats the foregoing and states that as a result the Defendants are liable to the Plaintiff for breach offiduciary duty [and] negligence.” The Claim in Negligence [24] It is trite tort law that to establish negligence, the Plaintiff must show that (1) the Defendants owed her a duty of care; (2) theDefendants breached that duty of care; and (3) the breach resulted in damages to the Plaintiff. [25] The Defendants contend that the Plaintiff will not be able to get beyond the first element, as no duty, fiduciary or otherwise, isowed in the context of child protection proceedings, by the Defendants to the Plaintiff as a parent of children who are the subject of childprotection proceedings. [26] In D.(B.) v.

Children’s Aid Society of Halton (Region), 2007 SCC 38, a teenager was apprehended by a Children’s Aid Societyand ultimately became a permanent ward of the Crown. The wardship order included a provision that any contact with her family was tobe at the teenager’s discretion. The teenager’s family unsuccessfully appealed the wardship order and subsequently brought a civil actionagainst a centre that treated the teenager and a social worker[4] seeking damages for negligence in their dealings with the family.

Theplaintiffs claimed the teenager would have been re-integrated with the family had it not been for the actions of the defendants. Thedefendants successfully brought an application to strike the claim on the basis that it failed to disclose a reasonable cause of action. TheCourt of Appeal overturned the trial judge. In doing so it found that the duty of care asserted by the family was novel and that it was notplain and obvious that the claim would fail.

Upon further appeal, the Supreme Court of Canada dismissed the action and found there wasno reasonable cause of action because there was no legal duty of care owed by the defendants to the family. [27] In D.(B.), at paragraphs 24 and 34, the Supreme Court of Canada reiterated what is required to establish that a defendant owes aduty of care to a plaintiff: (1) the harm complained of must have been reasonably foreseeable, (2) there must have been sufficientproximity between the parties such that it would be fair and just to impose a duty of care, and (3) there must be no residual policy reasonsfor declining to impose such a duty. [28] It was conceded in D.(B.) that the first part of test was met – it was reasonably foreseeable that the actions of the defendantswould harm the family.

The decision concentrated on the second branch of the test – proximity. The family had asserted that itsexpectations and reliance on the defendants was based on the child protection legislation and court orders made in the case. TheSupreme Court of Canada concluded that there was no proximity of relationship such as to establish a duty of care to the family of

children in care. In so concluding, the court expressed concern for the potential for conflicting duties on the part of those responsible for the care of the children.

At paragraph 41, the court stated that: imposing a duty of care on the relationship between the family of a child in care and that child’s 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. [ 29 ] Further at paragraph 50, the court emphasized the untenable position that would be inflicted upon those working in the area of child protection, if they were to owe a duty of care to the parents of the children in care: If a corresponding duty is also imposed with respect to the parents, service providers will be torn between the child’s interests on the one hand, and parental expectations which may be unrealistic, unreasonable or unrealizable on the other.

This tension creates the potential for a chilling effect on social workers, who may hesitate to act in pursuit of the child’s best interests for fear that their approach could attract criticism – and litigation – from the family.

They should not have to weigh what is best for the child on the scale with what would make the family happiest, finding themselves choosing between aggressive protection of the child and a lawsuit from the family [ 30 ] In D.(B.) the Supreme Court of Canada reminded us that the primacy of the best interests of the child over parental rights in the child protection context is an axiomatic proposition in the jurisprudence (paragraph 44). The dominance of the child’s best interest is enshrined in child protection legislation in this province.

The legislation in force at the time of the origination of the Plaintiff’s allegations in 2000 and continuing up to the time that the Statement of Claim was issued in this action in 2009, was the Child, Youth and Family Services Act , S.N.L. 1998, c. C-12.1 (“the 1998 Act ”).

Section 7(

a) of the 1998 Act stated that the overriding and paramount consideration in any decision made under it shall be the best interests of the child. [ 31 ] Assuming that the Plaintiff’s allegations are intended to cover actions or omissions of the Defendants beyond the date of the institution of her action, similar provisions are found in the subsequent equivalent legislation. Section 9(1) of the Children and Youth Care and Protection Act, S.N.L. 2010

Chapter C-12.2 (“the 2010 Act ”) and section 9(1) of Children, Youth and Family Act , S.N.L 2018

Chapter C-12.3 (“the 2018 Act ”) contain the following identical language, “This Act shall be interpreted and administered in accordance with the principle that the overriding and paramount consideration in a decision made under this Act shall be the best interests of the child or youth.” [ 32 ] In D.(B.) , the family had argued that the Defendants did not comply with the terms of the court order which stated that attempts would be made to reintegrate the family where possible.

In this case, the Plaintiff seeks to differentiate her circumstances from that of D. (B.) in that she submits that the Defendants were not operating under a court order when they “moved the goal posts” in terms of what was expected of her to be able to have custody or access to her children. The non-existence of a court order is not mentioned in the proposed Amended Statement of Claim nor does it provide the background as to the circumstances that led to the Defendants being placed in a position to control the custody and access of the Plaintiff’s children.

It is clear, however, from the proposed Amended Statement of Claim, that the factual underpinning of the Plaintiff’s action is her relationship with the Defendants in the context of the Defendants controlling the custody and access to her children and that her claim against them is based in negligence and breach of fiduciary duty. There is no assertion that the Defendants were not legally entitled to direct the care, custody or access of the children.

Furthermore, the Defendants submitted that the allegations against them arise in the exercise of child protection duties and this has not been contested by the Plaintiff. [ 33 ] As long as the Defendants had responsibility for the care, custody, and control of the Plaintiff’s children pursuant to the child protection legislation, they had a statutory mandate to make decisions with the children’s best interests being paramount. They cannot be laden with a separate duty to the Plaintiff that could potentially conflict with that statutory obligation.

Instead they must be unencumbered in carrying out their mandate to the children to the fullest extent possible. As such, I conclude that D.(B.) is applicable to this case. In D.(B.) the issue of whether a duty of care arises in these circumstances was litigated and determined. There was no duty of care owed by the Defendants to the Plaintiff. Therefore, the proposed Amended Statement of Claim does not disclose a reasonable cause of action in negligence.

If there were a relationship between the parties outside of the child protection or intervention context on which the action is intended to be based, it has not been articulated in the proposed Amended Statement of Claim so as to give rise to a triable issue in negligence. Breach of Fiduciary Duty [ 34 ] The proposed Amended Statement of Claim is also based on breach of fiduciary duty. To establish this cause of action, the Plaintiff must first establish that the Defendants owed her a fiduciary duty.

A fiduciary duty has, at its core, an undertaking of loyalty on the part of the fiduciary to act in the best interests of the beneficiary ( Perez v. Galambos , 2009 SCCC 48 at para. 69). [ 35 ] The issue of whether a fiduciary duty is owed by child protection officials to a parent of a child in care has been addressed in other cases and found not to exist. In C.(D.) v. Children’s Aid Society of Cape Breton Victoria , 2008 NSSC 196 , (aff’d., 2009 NSCA 73 ) [5] , a baby was apprehended at birth.

Within weeks of the apprehension, a hearing was held at which the defendant acknowledged awareness that the plaintiff was the baby’s father and that there were no concerns regarding his ability to parent. The baby was placed in the care of his father under the supervision of the defendant. The father commenced a civil action seeking damages against the defendant including a claim for breach of fiduciary duty. The defendant was successful in bringing an application to strike the pleading.

The court determined that the claim was not viable because the defendant did not stand in a fiduciary relationship with the father. [ 36 ] S. (C.H.) v. Alberta (Director of Child Welfare) , 2010 ABCA 15 , is also of assistance in considering the viability of a claim based on breach of fiduciary duty in these circumstances. In that case the Alberta Director of Child Welfare obtained a temporary guardianship order regarding three children but failed to adhere to the legislative requirement to file a care plan and maintained custody of the children beyond the date on which the order purportedly lapsed.

The care plan was described by the court as a means to help parents know what they must do to regain custody. The mother initiated a civil action on her own behalf and as litigation guardian of the children against the Director based in several causes of action including breach of fiduciary duty. The Director brought an application to strike the pleading. The Alberta Court of Appeal agreed with the applications judge in holding that the mother’s claim against the

Director for breach of fiduciary duty was bound to fail. The court found there was nothing in the pleadings or at law to suggest that the Director had undertaken to act in the best interest of parents or other family members. [ 37 ] In this case, assuming the facts as alleged are true, the proposed Amended Statement of Claim states that the Plaintiff was a “client” of the Defendants with respect to the custody and access of her children and that the Plaintiff has had an active “file” with the Defendants since June 2000.

The pleading lacks material facts of the so-called client relationship and how it could amount to a fiduciary relationship between the parties. It does however clearly state that the relationship was with respect to the custody and access of the Plaintiff’s children. The legislated mandate for the Defendants in such circumstances is to give overriding and paramount consideration to the best interests of the children in their decision-making. This is incompatible with the existence of a duty of loyalty on the part of the Defendants to act in the best interests of the Plaintiff.

Therefore there is no basis for a claim founded on breach of fiduciary duty. The Defendants’ duty was to the children. They did not stand in a fiduciary relationship with the Plaintiff. There is no triable issue with respect to a claim for breach of fiduciary duty. Conclusion on Triable Issue [ 38 ] Although the threshold the Plaintiff has to meet to establish a triable issue is low, and I am to take a generous approach, I conclude that threshold has not been met. The proposed Amended Statement of Claim based in negligence and breach of fiduciary duty has no reasonable chance of success against the Defendants.

This is because there is no duty of care or fiduciary duty owed to the Plaintiff by the Defendants in these circumstances. [ 39 ] I find that the proposed Amended Statement of Claim discloses no reasonable cause of action in negligence or breach of fiduciary duty and therefore the Plaintiff has not met the triable issue prong of the Butler test. The application for leave to amend is dismissed on this basis.

Although this is not something that can be cured by any additional particulars, I will nonetheless briefly deal with the third and fourth principles – whether the proposed amended pleading is embarrassing and whether it is pleaded with proper particularity. Is the Amended Statement of Claim embarrassing? [ 40 ] As noted by Whalen C.J. at paragraph 14 of the decision dealing with the first application to amend in this action, the term “embarrassing” is used to capture a broad range of material defects in a pleading or proposed amendment.

Pleadings have been found to be embarrassing if they "fail to state a real issue between the parties in an intelligible way" [ Dempsey v. Envision Credit Union , 2006 BCSC 750 , at para. 86 ; see also Lundrigan v. Short , 2000 CarswellNfld 242 , N.J. No. 239 (S.C. (T.D.)), per Russell, J., at para. 4].

Other cases have found that a proposed amendment would be embarrassing where it, "brings forward a claim that the plaintiff is not entitled to make use of", "leaves out particular facts which would give the defendant the knowledge of what the basis of the plaintiff's case is and on which the plaintiff will have to rely at trial in order to make out a case", or "does not comply with the minimum requirements of the rules of pleading" in some way [ Petten , at para. 97]. In Lacroix v.

Macdonald and Hoffe Appraisals Ltd. , 2015 NLTD(G) 85, at paragraph 25, the Court stated that pleadings will be embarrassing where the opposing party will be left to speculate as to the legal and factual basis for the claim. [ 41 ] The Defendants contend that the proposed Amended Statement of Claim is embarrassing because they are unable to determine the factual basis of the Plaintiff’s claim.

They state they can only speculate that the Plaintiff claims they acted in their statutory functions as it relates to child protection and that the Plaintiff has apparently suffered due to their child protection decisions. [ 42 ] I have already determined that no duty of care or fiduciary duty was owed by the Defendants to the Plaintiff in the circumstances of this case as pleaded in the proposed Amended Statement of Claim. However, if that determination is not correct, I agree with the Defendants that the proposed Amended Statement of Claim is embarrassing.

Although paragraph 9 of the proposed Amended Statement of Claim identifies the causes of action on which the action is intended to be based, it does not plead the elements of each of those causes of action and provide the material facts on which those causes of action are based.

For example, with respect to the claim based in negligence, the pleading fails to articulate the particulars of the duty allegedly owed; how it is alleged the duty was breached; the authority by which the alleged requirements were imposed on the Plaintiff; the particulars of those requirements including time lines; and how the Defendants’ refusal to permit the Plaintiff custody and access to her children was actionable. These issues also pertain to the purported cause of action based on breach of fiduciary duty.

In particular, the Plaintiff has failed to articulate the material facts that would support the contention that the Defendants stood in a fiduciary relationship with her. As such, the Amended Statement of Claim leaves out the particular facts which would give the Defendant the knowledge of what the basis of the Plaintiff’s case is and on which the Plaintiff will have to rely at trial in order to make out a case. [ 43 ] I conclude that the proposed Amended Statement of Claim is embarrassing and therefore fails to meet the third prong of the Butler test.

Is the Amended Statement of Claim pleaded with proper particularity? [ 44 ] In Petten, at paragraph 100, the Court in discussing the fourth prong of the Butler test stated that the party seeking an amendment ought to be “scrupulous” in presenting the amendment in such a way that all reasonable particulars are provided so as the other side is able to respond properly without the need of seeking further particulars. [ 45 ] Except for paragraph 9 of the proposed Amended Statement of Claim (which identifies the purported causes of actions), the pleading is remarkably similar to the portion of the first proposed amended pleading dealing with the Plaintiff’s allegations against the Defendants regarding custody and access of her children.

For example, paragraph 8 of the proposed Amended Statement of Claim is similar to paragraph 9 of the first proposed amended pleading except the first pleading gave particular examples of how the Defendants allegedly breached their duties to the Plaintiff whereas the proposed amended pleading currently before the Court states broadly that the Defendants breached their duties and obligations by refusing to permit custody and access even when the Plaintiff complied with the Defendants’ stated requirements.

In this respect, it appears the first amended pleading was more particularized than what is currently before the Court.

[46] In the first application to amend, the Court determined that the proposed amended pleading was embarrassing largely becauseit lacked sufficient particularity. Whalen C.J. stated at paragraphs 32 and 33 of his decision that many of the allegations were conclusorystatements that failed to detail the facts underlying each of them. The proposed Amended Statement of Claim in this application remainsdeficient in this respect as well.

To allow this amendment would leave the Defendants to speculate as to the factual basis of the Plaintiff’sclaim or require the Defendants to take further steps, such as serving a Demand for Particulars, to be able to properly respond. Thus theamended pleading also fails in respect of the particularity requirement, the fourth prong of the Butler test. Costs [47] The Defendants seek solicitor-client costs.

They submit that the conduct of the Plaintiff in advancing another application toamend the Statement of Claim, which manifests the same problems that resulted in the rejection of the first application to amend,requires rebuke from the Court. They also contend that the protracted nature of this litigation adds to the necessity for rebuke. [48] In Young v Young, (SCC), [1993] 4 S.C.R. 3, the Supreme Court of Canada stated that solicitor-client costs arerare and are generally awarded where there has been reprehensible, scandalous, or outrageous conduct on the part of one of the parties.

The fact that an application has little merit is, in itself, no basis for awarding solicitor-client costs. [49] In Petten v. E.Y.E.

Marine Consultants (1998), (NL SC), 179 Nfld. & P.E.I.R. 94, 546 A.P.R. 94 (Nfld.S.C. (T.D.)), at paragraph 80, the Court stated that the awarding of solicitor-client costs serves both a compensatory and punitivefunction and that the awarding of such costs may be justified where there is a causal relationship between the misconduct deservingreproof or rebuke by one party and the special costs incurred for which additional indemnification is sought by another. [50] I accept the Defendants’ submission as to the similarity in the proposed amended pleadings in both applications and therepeated issues with respect to the lack of particulars.

In this respect the Defendants have twice been required to respond to applicationswith similar deficiencies. However the key issue that both parties submitted needed to be addressed in this application was whether atriable issue exists. This issue was not previously litigated. As such, I am unable to conclude that the Plaintiff’s conduct in bringing thisapplication is such as to warrant an award for solicitor-client costs. However, I am satisfied that the circumstances do merit an awardabove that of Column 3. The Defendants shall have their costs on a Column 5 basis.

summary and Disposition [51] The Application to amend the Statement of Claim is dismissed with costs to the Defendants on a Column 5 basis. [52] It is further ordered that pursuant to

section 55 of the Children, Youth and Families Act, S.N.L 2018

Chapter C-12.3, a personshall not publish or make public information that has the effect of identifying the parent or the children who are the subject matter ofanything referenced in this decision. _____________________________ Sandra R. Chaytor Justice [1] Other proposed amendments relating to an alleged wrongful dismissal of the Plaintiff were found not to arise out of the same orsubstantially the same transaction referenced in the original Statement of Claim and therefore were not permitted pursuant to Rule15.02(2).