2017 ONSC 3407, 2017 ONSC 3407

CITATION: Aspden v. Family and Children’s Services Niagara, 2017 ONSC 3407 COURT FILE NO.: 2846/14 DATE: 2017/06/02 SUPERIOR COURT OF JUSTICE – ONTARIO RE: Tamara Aspden, Brad Aspden, Jacob Aspden by his Litigation Guardian Tamara Aspden and Ethan Aspden by hisLitigation Guardian Tamara Aspden Plaintiffs (Respondents) AND: Family and Children’s Services Niagara, Heidi Payne, Defendants (Appellants) And: the Regional Municipality of Niagara Police Services Board, and Phil Gavin (not party to the leave motion) BEFORE: Morissette J. COUNSEL: O. Sabo, counsel, for the plaintiffs (respondents) Carole G.

Jenkins, counsel, for the defendants (appellants), Family and Children’s Services Niagara and Heidi Payne HEARD: In writing ENDORSEMENT Introduction [1] The Family and Children’s Services Niagara (FACS), and Heidi Payne seek leave to appeal from the order of Madam Justice Leitchdated June 30, 2015.

The motion judge dismissed the appellants’ motion to strike the respondents’ (plaintiffs) claims on the basis thatshe could not, at this stage, conclude that there is no chance that the plaintiffs might succeed. [2] The appellants had brought a motion seeking to strike the claims of the plaintiffs on the basis that the claim disclosed no reasonablecause of action and no duty of care was owed by FACS to the parents. Test for Leave to Appeal [3] The test for granting leave to appeal under r. 62.02(4) is well-settled.

It is recognized that leave should not be easily granted and thetest to be met is a very strict one. There are two alternate bases upon which leave may be granted.

Both branches involve a two-part testand, in each case, both requirements of the two-part test must be met before leave may be granted. [4] Under r. 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario orelsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal begranted.” A “conflicting decision” must be with respect to a matter of principle and not merely a situation in which a different result wasreached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), (ON SC), 7 O.R. (3d)542 (Div.

Ct.). [5] Under r. 62.02(4) (b), the moving party must establish that there is reason to doubt the correctness of the order in question and thatthe proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judgegranting leave be satisfied that the decision in question was actually wrong – that part of the test is satisfied if the judge granting leavefinds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., (ONSC), [2003] O.J. No. 3442 (S.C.J.); Ash v.

Lloyd’s Corp. (1992), (ON SC), 8 O.R. (3d) 282 (Gen. Div.). In addition,the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions ofgeneral or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd.(1986), (ON SC), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), (ON SC),65 O.R. (2d) 110 (Div. Ct.).

Position of the parties: [6] The appellants submit that the motion judge erred in dismissing the motion; that leave ought to be granted because there areconflicting decisions and it is desirable that leave to appeal be granted. The appellants further submit that there is good reason to doubtthe correctness of the motion judge’s decision and the proposed appeal involves matters of importance beyond the interests of the parties. [7] The respondents submit that this is a unique case and there are no conflicting decisions.

They further submit that there is no reasonto doubt the correctness of her decision and this appeal does not involve matters of importance but rather is specific to the unique facts of

this action and these litigants. Analysis [ 8 ] In assessing whether or not there are conflicting decisions, the nature of the plaintiffs’ action is important. The plaintiffs allege that, while FACS was investigating the alleged abuse of one of their children by a third party child, the FACS worker’s notes named the abuser child as the brother of the victim, rather than the third party. They allege that FACS and its employee were negligent. [ 9 ] In this case, the parents were never under investigation. The appellants at no time apprehended either of the children nor were they ever in the care of the appellants.

In other words, the children were never “in the care of” a Children’s Aid Society. [ 10 ] The appellants submit that the Syl Apps [1] decision stands for the proposition that a Children’s Aid Society owes no duty of care to parents and only owes a duty of care to children who come to its attention or are in its care. [ 11 ] In the authorities cited by the appellants, the parents were under investigation; and/or the children were removed from the home and put in the care of the Children’s Aid Society due to alleged or suspected misconduct.

In those cases, there is real or potential conflict between the Society’s mandate to put the children first, and the parents. [ 12 ] The motion judge found that neither factor exists in this case. The allegations in this pleading are not in the context of an inter- family abuse case which might put the parents and FACS in conflict, as the authorities referred to by the appellants suggest.

Rather, the motion judge concluded that the allegations are that FACS acted outside of its child protection mandate. [ 13 ] There is no conflicting decision where the court applies established legal principles appropriate to the facts but exercises its discretion differently or distinguishes the facts appropriately. [ 14 ] In my view, it was open for the motion judge to distinguish this case from the authorities cited.

She applied the correct legal principles in a thoroughly reasoned decision. [ 15 ] There is no reason to doubt the correctness of the motion judge’s application of the legal analysis in Syl Apps and the Anns/Cooper [2] analysis to these facts. She could not, at this stage, conclude that on these facts, there is no chance that the plaintiff’s might succeed. [ 16 ] It is helpful to remember what McLaughlin C.J. said in Imperial Tobacco [3] : “the motion to strike is a tool that must be used with care. The law is not static and unchanging.

Actions that yesterday were deemed hopeless may tomorrow succeed… The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.” [ 17 ] The motion is dismissed. The appellants have not satisfied either r. 62.02(4) (

a) or (b). “Justice J. N. Morissette” Justice J.N. Morissette Date: June 2, 2017