Case information

Charter of Rights — Fundamental justice — Torts — Duty of care — Child protection — Children and family members suing for damages as a result of faulty results of hair follicle testing for drug and alcohol used in child protection proceedings — Children’s aid societies named as defendants bringing motions to strike family members’ claims against them — Ontario Crown named as defendants bringing motion to strike children and family members’ claims against them — Courts below allowing motions — Whether Court of Appeal correctly applied test for striking a pleading — Whether Court of Appeal erred in finding that where entities exist to protect a child’s best interests, they must only owe a duty of care to the child they serve — Whether Court of Appeal erred in finding that a relationship of proximity did not exist as between Ontario Crown and applicants — Whether Court of Appeal erred in finding that children and their parents do not have common protected interests under s. 7 of the Charter — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01.

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(PUBLICATION BAN IN CASE)

The Motherisk Drug Testing Laboratory, housed in the Hospital for Sick Children, performed hair follicle testing for drug and alcohol abuse which were used in child protection proceedings. It became evident that some of the test results were flawed. The applicants are family members and children who were the subject of protection proceedings who sued for damages as a result of the faulty test results. The defendants in the applicants’ actions included the relevant Children’s Aid Societies and Her Majesty the Queen in Right of Ontario (“Ontario Crown”), who brought motions pursuant to r. 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requesting that the family members’ actions against them be dismissed because it was plain and obvious they could not succeed. The Ontario Crown also sought to strike the children’s claims against it. The case management judge allowed the motions to strike. She concluded that the Children’s Aid Societies and the Ontario Crown did not owe a duty of care to the children’s family members and that the Ontario Crown did not owe a duty of care to any of the applicants. The Court of Appeal dismissed the applicants’ appeals.