COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Quinn v. British Columbia, |
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2018 BCCA 320 |
Date: 20180816
Docket: CA44461
Between:
Desmond Quinn, Pham Thi Trang, M.Q., an Infant by her Guardian Ad Litem Desmond Quinn and B.Q., an Infant by her Guardian Ad Litem Desmond Quinn
Respondents
(Plaintiffs)
And
Her Majesty the Queen in Right of the Province of British Columbia
Appellant
(Defendant)
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Before: |
The Honourable Madam Justice D. Smith The Honourable Madam Justice Stromberg-Stein The Honourable Madam Justice Dickson |
On appeal from: An order of the Supreme of British Columbia, dated April 28, 2017 (Quinn v. British Columbia, 2017 BCSC 692, Victoria Docket 14-0664).
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Counsel for the Appellant: |
D. Suntjens |
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Counsel for the Respondents: |
B.R. Morahan |
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Place and Date of Hearing: |
Victoria, British Columbia May 28, 2018 |
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Place and Date of Judgment: |
Vancouver, British Columbia August 16, 2016 |
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Written Reasons by: |
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The Honourable Madam Justice D. Smith |
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Concurred in by: |
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The Honourable Madam Justice Stromberg-Stein |
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The Honourable Madam Justice Dickson |
Summary:
The Province appeals from the order of a chambers judge declining to strike the Respondents’ claim pursuant to R. 9-5(1)(a) as disclosing no reasonable cause of action and pursuant to R. 9-5(1)(d) as constituting an abuse of process. The claim is for Charter damages for breaches of the parents’ s. 7 Charter rights, which they allege resulted from the conduct of the Director of Child, Family and Community Services in removing their children from their custody. The chambers judge concluded that: (i) it was not plain and obvious that the Respondents had no reasonable cause of action; (ii) their action did not amount to an abuse of process; or alternatively (iii) their action was not unnecessary or vexatious.
Held: Appeal allowed. The chambers judge erred in not dismissing the Respondents’ claim as having no reasonable prospect of success, due to the existence of both private law and public law remedies that are adequate alternatives to the unique public law remedy of awarding Charter damages. The judge further erred in failing to dismiss the Respondents’ claim as an abuse of process because the allegations at issue could have been raised in the Provincial Court within the statutory scheme of the Child, Family and Community Service Act proceedings, which provides a more immediate and appropriate forum for a review of the Director’s conduct at issue.
Reasons for Judgment of the Honourable Madam Justice D. Smith:
[1] The respondents, Desmond Quinn and Pham Thi Trang, have two minor children who were removed from their custody by a delegate of the Director pursuant to s. 30 of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 [CFCSA].
[2] Approximately four months after their removal, the children were returned to their parents’ custody under a six-month supervision order, by consent, pursuant to s. 60 of the CFCSA.
[3] Over a year and a half later, the parents, on their own behalf, and Mr. Quinn, as guardian ad litem on behalf of the children (collectively, the “Respondents”), commenced the underlying Notice of Civil Claim (the “NOCC”) against the provincial Crown as represented by the Minister of Child, Family and Community Services (the “Province”). The original NOCC pleaded breach of fiduciary duty, breach of statutory duty, and breach of the parents’ rights under s. 8 of the Canadian Charter of Rights and Freedoms (the “Charter”), and sought a declaration that the parents had not caused the children harm or, in the alternative, that there were insufficient grounds to believe that they were likely to cause the children harm.
[4] The NOCC was amended about 11 months later to include requests for: declarations that the children were removed without reasonable grounds, that their removal was unlawful, that the fiduciary duty and duty of care owed to the children were breached, and that the Respondents’ s. 7 Charter rights were breached. The remedies sought included damages for mental and emotional suffering; constitutional damages for breach of the Respondents’ s. 7 Charter rights; and special damages for the Respondents’ legal fees and for the costs of hiring a social worker to supervise their care of the children.
[5] Eighteen months later, the Respondents applied to the court below to further amend the amended NOCC (the “Draft Amendment”) as required by R. 6-1(1)(b)(i) of the Supreme Court Civil Rules [SCCR]. In response, the Province applied to dismiss or strike the amended NOCC pursuant to R. 9-5(1) of the SCCR on the basis that it: (i) disclosed no reasonable cause of action; (ii) was an abuse of process; or (iii) was unnecessary or vexatious.
[6] During the hearing of the applications, the Respondents abandoned all of their claims except for the alleged s. 7 Charter breach. In that regard, the Respondents alleged that the Director infringed the parents’ s. 7 Charter rights by failing to comply with the principle of fundamental justice of procedural fairness in the removal and retention of their children. Further, although the Draft Amendment referred to “unfair” conduct by the Director that predated the removal of the children, during the hearing of the appeal counsel for the Respondents conceded that the parents’ s. 7 Charter rights were only engaged upon the children’s removal from their custody, and therefore the allegations concerning the Director’s pre-removal decision making also had to be abandoned. Consequently, the only issue to be reviewed on appeal is whether the Respondents should have been permitted to proceed to trial on their claim that the Director’s post-removal conduct violated the principle of fundamental justice that requires procedural fairness when an individual’s s. 7 Charter rights are engaged.
[7] The judge concluded that the Province’s application to dismiss the Respondents’ claim did not meet the legal test for dismissal of an action for no reasonable claim. She dismissed the Province’s application and granted the Respondents’ application to further amend their pleadings as set out in the Draft Amendment.
[8] The Province appeals the dismissal of its application.
[9] The Respondent parents together have two children, M.Q. and B.Q., who were nine and seven years old, respectively, at the material time. The mother also has a son, T.T., from a previous relationship, who was living with the parents and was 18 years old at the material time.
[10] On February 22, 2012, the Director received an anonymous report indicating T.T. had disclosed that: (i) the parents were physically and verbally abusive to him and his sisters (T.T. alleged his mother physically abused him daily, that he was hit about the head with a piece of firewood, and that his two siblings were pinched, burned, and struck with objects like a cell phone); (ii) the mother yelled and screamed at T.T.’s siblings for no apparent reason, which caused them to run to him crying for protection; (iii) T.T. found this abusive behaviour very traumatizing and emotionally disturbing to the point that he was afraid of returning home and for the safety of his siblings; and (iv) T.T. felt suicidal.
[11] On February 24, 2012, a social worker interviewed T.T. and found his allegations to be credible and serious. As a result, the Director removed all three children from the parents’ home and placed them into foster care. The social worker testified that he rejected any measure less disruptive than removal at that time because he believed, based on T.T.’s disclosures which he accepted, that the children were in immediate danger.
[12] After the children were removed, the social worker continued his investigation by contacting Mr. Quinn’s family members from his first marriage, including his former wife and two adult children. The information he received from those individuals gave rise to concerns about Mr. Quinn’s potential for domestic violence. This was based on their allegations of threats, intimidation, physical assaults on the adult children (one allegedly applied for a restraining order), and controlling conduct that isolated Mr. Quinn’s former wife. The investigation also gave rise to concerns that Mr. Quinn might abscond with the younger children to Thailand.
[13] A presentation hearing was to be held within 7 days of the removal as required by s. 34 of the CFCSA. It was initially scheduled for February 29, 2012, but was adjourned to March 7, 2012, further adjourned to March 14, 2012, and finally heard on March 22, 2012. At the conclusion of the contested presentation hearing, Judge Wood of the Provincial Court found there were reasonable grounds to remove the children from the parents’ home pursuant to s. 30 of the CFCSA. On March 30, 2012, he made an order that the children be placed in the interim custody of the Director with reasonable access to the parents, to be supervised at the discretion of the Director. He also set the date for a protection hearing on May 9, 2012.
[14] On May 9, 2012, Judge Harvey of the Provincial Court granted a consent order, pursuant to s. 60 of the CFCSA, which provided that the children be placed in the temporary custody of the Director for a period of three months with reasonable access to the parents, to be supervised at the discretion of the Director. Section 60 of the CFCSA provides that a party’s consent to such an order does not constitute an admission of any of the grounds for removal alleged by the Director.
[15] On June 27, 2012, pursuant to s. 57 of the CFCSA, Harvey P.C.J. granted a consent order that the children be returned to the custody of the parents, under supervision, for a period of six months, subject to a list of 14 terms and conditions.
[16] On February 19, 2014, the Respondents filed the original NOCC, which they amended on January 14, 2015. The original NOCC sought declarations that the parents had not caused harm to the children or, in the alternative, that there were insufficient grounds to believe harm was likely to be caused to the children. The NOCC also requested damages for the Director’s breach of the duties set out in the CFCSA, breach of his or her fiduciary duties to the parents and the children, and damages resulting from an unlawful search and seizure contrary to s. 8 of the Charter. The amendment sought further declarations and added claims for damages resulting from various breaches of the Respondents’ s. 7 Charter rights, general damages for mental distress and emotional suffering, and special damages for the parents’ legal fees and costs of hiring a social worker. All of these claims related to the harm done by the allegedly unfair manner in which the Director’s investigation proceeded and in its outcomes.
[17] On August 9, 2016, the plaintiffs filed an application for leave to further amend their NOCC. These further amendments were, in substance, an attempt to further particularize their claims. They supplemented the legal basis for the relief they sought by further connecting their mental and emotional suffering to their s. 7 claim, and by seeking Charter damages with specific reference to s. 24(1) of the Charter. They also added further pleadings with respect to the alleged unfairness of the Director’s investigation, including:
6.3 The duty owed to each of the Plaintiffs pursuant to s. 7 of the Charter of Rights includes the duty to act in accordance with the principles of natural justice, to act fairly, and in a procedurally fair manner, and to make impartial decisions, a duty to act in good faith and without oblique motive and not to act in an atmosphere of prejudice, or contrary to the cannons of decency and fairness and a duty not to act arbitrarily, the particulars of which include:
a. The right not to have the Plaintiff children removed unless authorized by law
…
c. The right to not have the Plaintiff children removed in an unfair manner or by biased agents of the state
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e. The right for there to be fair, unbiased and impartial or in the alternative unbiased investigation of the allegations prior to making a decision to remove the Plaintiff children
f. The right to have the Defendant take fair and reasonable steps to ensure the Plaintiff children are not removed on the basis of false or unreliable allegations
g. The right to not be removed arbitrarily on the basis of an uninvestigated and unsubstantiated allegation
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i. The right to have the allegations assessed in a fair or in the alternative, unbiased manner and in a process embodying procedural fairness
j. The right of the Plaintiff parents to have the opportunity to be interviewed about an abuse allegation, to respond to that abuse allegation and to have their response and any other information they wish to provide fairly and impartially considered in an assessment of whether there were reasonable grounds to remove the Plaintiff children prior to any decision to remove the Plaintiff children except in exigent circumstances
…
p. The right to have information provided by the Plaintiff Parents fairly considered or in the alternative without bias and assessed, including information relating to the reliability and credibility of the allegations
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r. The ongoing right to have the Defendant reassess, fairly, whether, in light of any information provided by the Plaintiff Parents, the Defendants still had reasonable grounds to believe the Plaintiff children were in need of protection and whether the Plaintiff children could be adequately protected by less disruptive means if they were returned to the care of the Plaintiff parents, and not to refuse the return of the children arbitrarily.
s. The right not to have removal or return decisions based on information that is dated, irrelevant, or false.
t. The right to procedural fairness including:
i. The right to prior notice that the decision-maker was considering making a decision to remove the Plaintiff children;
ii. The right to be advised of the allegations, the Defendant’s concerns and the disclosure of the case to meet;
iii. The right to have a reasonable and meaningful opportunity to participate in the making of the decision to remove the Plaintiff children;
iv. The right to an informal in-person oral hearing appropriate to the circumstances and the importance of the decision to the affect parties;
v. The right to present relevant evidence
vi. The right to make representations or submissions on their own behalf in relation to making the decision to remove the Plaintiff children
vii. The right to have the decision-maker disregard irrelevant evidence;
viii. The right to have the decision-maker not disregard relevant evidence
ix. The right to have the decision-maker implement and follow a fair procedure;
x. The right to have a fair, impartial and unbiased decision-maker.
[18] On August 17, 2016, the Province applied to strike out the Respondents’ NOCC pursuant to Rules 9-5(1)(a) and (d), or alternatively (b) of the SCCR.
[19] The Respondents’ application for leave to amend their pleadings and the Province’s application to strike the claim were heard together in chambers over three days starting on September 13, 2016.
[20] In their written argument before the chambers judge, the Respondents conceded that: (i) there was no established category of fiduciary duty between the Province and the parents; (ii) there was no cause of action for negligent breach of the Director’s statutory duty; (iii) the Province did not owe a duty of care to the parents; and (iv) the parents’ s. 8 Charter rights were not infringed. Accordingly, those claims in the Draft Amendment were removed, which left outstanding only the Respondents’ damages claim for the violation of their s. 7 Charter rights.
[21] The judge first decided the Province’s application to strike or dismiss the NOCC as, if successful, it would render the Respondents’ application in support of the Draft Amendment moot. If unsuccessful, the Draft Amendment would be granted.
[22] The principal submission of the Province was that the Respondents’ action should be dismissed as an abuse of process for two reasons: first, the action was a collateral attack on the valid order made at the presentation hearing; second, the action was an attempt to re-litigate matters that had been determined by Wood P.C.J. at the presentation hearing. The Province contended that the proper avenue for the parents’ complaints with respect to the finding that there were reasonable grounds to remove the children, was to bring a petition for judicial review, or to proceed through the statutory appeal process under the CFCSA.
[23] The judge concluded that the NOCC, as amended by the Draft Amendment, would not amount to a collateral attack on the order made at the presentation hearing, nor constitute an abuse of process. She noted that the issues raised by the Respondents — which challenged the Director’s conduct in the investigation of the abuse allegations and in reaching the decision to remove the children — were not previously reviewed or determined because they were not issues that a judge at a presentation hearing would have the jurisdiction to decide. The judge found that the remedies available on judicial review or on an appeal under the CFCSA would not be appropriate in the circumstances, as the Respondents did not dispute the legal reasoning or conclusions of Wood P.C.J. but rather questioned the fairness of the Director’s actions for which they sought damages. Last, the judge held that the claim was not an attempt to circumvent or invalidate an order of the Provincial Court, as at the time of the hearing before her those orders had ceased to be operative.
[24] The Province also contended that the Respondents’ claim should be struck as disclosing no reasonable cause of action for two reasons: first, it submitted that even if the Draft Amendment application was granted, the pleadings would still not adequately set out a principle of fundamental justice that both complied with the criteria in R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, and applied in the context of child protection proceedings; second, the Province contended that many of the principles of fundamental justice pleaded were inconsistent with the Supreme Court of Canada’s decision in Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, and that the similarity between the child protection scheme at issue in that case and the CFCSA led to the inevitable conclusion that the claim was bound to fail.
[25] The judge concluded that it was not plain and obvious that the Respondents’ s. 7 Charter claim failed to disclose a reasonable cause of action, although she expressed some concern about the Respondents’ pleadings and the issue of whether they were pleading the duty of procedural and substantial fairness as a single principle of fundamental justice or rather were pleading a variety of principles of fundamental justice. The judge did not agree that K.L.W. barred the Respondents’ claim. She acknowledged the majority in K.L.W. held that the warrantless removal of children in either emergency or non-emergency circumstances does not offend the principles of fundamental justice if there is a fair and prompt post-removal hearing to determine whether the children require protection. However, she rejected the Province’s submission that the Manitoba legislation in K.L.W. and the CFCSA were so similar that the Respondents’ claim was doomed to fail. In her view, the issue of the application of K.L.W. to the Respondents’ claim, if any, should be determined by the trial judge and not on an application to strike. The judge also held that the Respondents’ claim was not unnecessary or vexatious.
[26] In the result, the judge dismissed the Province’s application and granted the Respondents’ application for the Draft Amendment.
[27] Due to the broad and protean nature of the Respondents’ claims, it may be helpful to reiterate what is not in issue at this juncture. As the judge confirmed, the Respondents have abandoned their claims of breach of fiduciary duty by the Director, tort claims against the Province (e.g., negligent breach of statutory duty, negligent investigation), and claims of violation of their s. 8 Charter rights. At the hearing of the appeal, the Respondents also abandoned their s. 7 claim as it related to the Director’s pre-removal conduct, conceding that the parents’ s. 7 interests were not engaged until the children were removed. Last, the appeal has been argued, as were the applications in the court below, without any reference to the Respondent children’s potential claims, notwithstanding the children’s inclusion in the style of cause. Given the manner in which this matter has proceeded, I do not consider the children’s potential claims to be at issue in this appeal.
[28] The sole remaining claim, therefore, is the allegation that the Province violated the parents’ s. 7 Charter rights by failing to comply with the principle of procedural fairness as a principle of fundamental justice, for which the Respondents seek both declaratory relief and Charter damages. It is common ground that the removal of the children from their parents’ custody infringed the parents’ right to security of the person: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, cited in K.L.W. at para. 5. The Respondents say that infringement was not in accordance with the principle of fundamental justice of procedural fairness, which the Province denies.
[29] The issues in this appeal may be summarized as follows:
a) Did the judge err in finding that the Respondents’ s. 7 Charter damages claim, with the Draft Amendment, disclosed a reasonable cause of action; and,
b) Did the judge err in finding that the Respondents’ claim for s. 7 Charter damages was not an abuse of process, which also engages the rule against collateral attack?
[30] The guiding principles of the CFCSA are set out in s. 2. The safety and well-being of children are the paramount considerations in the interpretation and application of the CFCSA, which must be administered in accordance with principles set out in its subsections. Subsection (a) provides that children are entitled to be protected from abuse, neglect, and harm or threat of harm. Subsection (b) provides that a family is the preferred environment for the care and upbringing of the children and the primary responsibility for their protection is with the children’s parents. Subsection (g) states that decisions relating to children must be made and implemented in a timely manner.
[31] Section 4 provides a list of relevant factors that must be considered in determining the best interests of a child where those interests are referred to in the CFCSA.
[32] Section 13(1) outlines the circumstances in which a child needs protection. They include where the child has been or is likely to be, inter alia: (a) physically harmed by a parent; (b) sexually abused or exploited by a parent; or (e) emotionally harmed by a parent or living in a situation where there is domestic violence by or towards a person with whom the child resides. Section 13(1.2) recognizes that the likelihood of physical harm to a child increases when the child is living in a situation where there is domestic violence by or towards a person with whom the child resides, and s. 13(2) recognizes that a child is emotionally harmed if the child demonstrates severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour.
[33] Section 30(1) authorizes the Director to remove a child where there are reasonable grounds to believe the child is in need of protection and that (a) the child’s health or safety is in immediate danger, or (b) no other less disruptive measure that is available is adequate to protect the child.
[34] Section 32(1) provides that after removal, the child remains in the care of the Director until the presentation hearing, though the child may be returned in advance of that hearing in certain circumstances pursuant to s. 33.
[35] Section 34 requires the presentation hearing to take place in the Provincial Court no later than 7 days after the child’s removal.
[36] Section 35 sets out the requirements to be addressed at the presentation hearing relating to a s. 30 removal. The Director must provide a written report to the court that includes the circumstances that caused the removal of the child, an interim plan for the care of the child, and information about any less disruptive measures considered before removing the child. The focus of the hearing is on the appropriate care arrangements for the child until the protection hearing can take place: B.B. v. British Columbia (Director of Child, Family and Community Services), 2005 BCCA 46 at para. 13. The task of the judge is limited to deciding if the Director has established reasonable grounds for the removal of the child. The judge does not make any findings on whether the child in fact was in need of protection at the time of removal. Conflicts in the evidence and findings of credibility are left for the protection hearing, although the practice is to resolve any conflicts in the evidence at the presentation hearing in favour of the Director to ensure the child’s safety and well-being pending the protection hearing. If reasonable grounds are established, the judge will make an order for the interim care of the children pending the protection hearing unless the facts the Director seeks to establish are “manifestly wrong or untrue or unlikely to have occurred” in which case the children will be returned to their parents: B.B. at para. 14.
[37] Section 37 provides that, at the conclusion of the presentation hearing, a protection hearing in the Provincial Court must be set for a date no more than 45 days later, and it must conclude as soon as possible.
[38] Section 40 provides that at the protection hearing the court must determine whether the child needs protection. The protection hearing (52 days after the child’s removal) is the first occasion upon which this issue can be addressed.
[39] Section 57 permits the court to change an order if circumstances have changed significantly.
[40] Section 60(4) provides for the making of consent orders at any time after a presentation hearing. A consent order does not require an express finding that the children were in need of protection at the time of their removal. Section 60(5) provides that a parent’s consent to an order is not an admission of any grounds alleged by the Director for removing a child.
[41] Section 81 authorizes an appeal to the Supreme Court of British Columbia within 30 days of any order of the Provincial Court, and from an order of the Supreme Court to the Court of Appeal on a question of law.
[42] The question for the judge under R. 9-5(1)(a) of the SCCR was whether “it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action”, or whether “the claim has no reasonable prospect of success”: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 17.
[43] Whether a pleading meets the test under R. 9-5(1)(a) of the SCCR will “generally be an extricable issue for which no deference need be accorded”; if a party asserts that a rule of law is a complete answer to the claim, that is a question of law reviewable on appeal for correctness: EY Holdings Ltd. v. Great Pacific Mortgage & Investments Ltd., 2017 BCCA 405 at paras. 19‒25. The issue for the judge, and the first issue on appeal, is whether it is plain and obvious that the Respondents’ claim for Charter damages has no reasonable prospect of success in light of the binding jurisprudence.
[44] A judge’s decision on the application of the doctrine of abuse of process to strike pleadings under R. 9-5(1)(d) involves an exercise of discretion. Appellate intervention is only appropriate in this context where the judge proceeded on a wrong principle or failed to give weight, or sufficient weight, to relevant considerations: Timberwolf Log Trading Ltd. v. British Columbia (Forests, Lands and Natural Resource Operations), 2013 BCCA 24 at para. 19. Intervention with respect to discretionary decisions is also appropriate where the judge made a palpable and overriding error in the assessment of the facts, or misdirected herself as to the applicable law: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 at para. 43.
[45] In my respectful view, the judge erred in dismissing the Province’s application that the Respondents’ claim for s. 7 Charter damages disclosed no reasonable cause of action, by failing to consider the legal test for determining whether damages are an “appropriate and just” remedy under s. 24(1) of the Charter as set out in Vancouver (City) v. Ward, 2010 SCC 27, and in Henry v. British Columbia (Attorney General), 2015 SCC 24. In identifying this error, I recognize that, based on the Respondents’ several amendments to their pleadings and the manner in which the issue before this Court was raised in the court below mid-hearing, the Respondents’ submissions on Charter damages are something of a moving target, which likely resulted in relevant jurisprudence not being meaningfully reviewed before the judge.
[46] For the reasons that follow, I have concluded that the Respondents’ claim has no reasonable prospect of success because countervailing factors, within the meaning of Ward and Henry, demonstrate that Charter damages are not an “appropriate and just” remedy in the circumstances.
[47] Section 24(1) of the Charter provides:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
[48] In Ward, the Supreme Court recognized that s. 24(1) is broad enough to empower courts to remedy Charter breaches with damages. The Court held that in order to determine whether damages are appropriate and just in the circumstances of a particular case, a four-step inquiry must be conducted:
[4] … The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages.
[49] The Respondent claimants bear the burden of establishing a prima facie case by establishing the first two steps above. If established, the onus shifts to the Province to demonstrate that countervailing considerations render damages inappropriate or unjust. As this issue has come before the Court as an appeal from a judge’s determination of an application to strike under R. 9-5(1)(a) of the SCCR, I propose to assess whether the Respondents’ claim has a “reasonable prospect of success” at each of the steps set out in Ward.
[50] The Province submits that K.L.W. forecloses the Respondents’ reliance on procedural fairness as a principle of fundamental justice under s. 7 of the Charter. It argues that the majority in K.L.W. endorsed a warrantless removal scheme where there was post-apprehension judicial oversight, holding that the scheme was in accordance with the principles of fundamental justice, and that consequently the CFCSA cannot be attacked on that basis. Further, the Province argues that the scope of procedural fairness proposed by the Respondents is unworkable in practice because removal decisions may need to be made in emergency circumstances. The Province asserts that, other than the barred claims regarding procedural fairness, the Respondents have failed to plead a principle of fundamental justice that satisfies the test set out in Malmo-Levine.
[51] For the reasons similar to those of the judge below, I am not persuaded that K.L.W. bars the Respondents from relying on procedural fairness as a principle of fundamental justice. The Province contends that K.L.W. provides that any post-apprehension judicial oversight necessarily renders the CFCSA (and, by implication, the Director’s actions) in accordance with the principles of fundamental justice. That proposition in my respectful view is too broad a reading of the ratio in that case.
[52] K.L.W. concerned a s. 7 Charter challenge to a specific provision of the Manitoba child protection legislation. That provision authorized the apprehension of a child without a warrant on reasonable and probable grounds to believe that the child was in need of protection. Under the statutory scheme, the apprehending agency had to make an application for a hearing to determine if the child was in need of protection within four days, and the application had to be returned within seven days.
[53] The circumstances of K.L.W. involved a newborn child who was apprehended from his mother at the hospital. The hearing on whether the child was in need of protection was not held until six months later, at which time the child was found to be in need of protection and was made a permanent ward of the province. The mother’s constitutional challenge to the scheme was dismissed. The mother’s appeal was dismissed by the Manitoba Court of Appeal; leave to appeal to the Supreme Court was limited to the constitutional issue.
[54] The majority of the Supreme Court found the six-month delay to have been “highly unreasonable” but also found, based on the record, that much of it was caused by how her counsel proceeded with the matter and, in any event, the mother suffered no prejudice from the delay. In the result, the Court upheld the finding that there was no violation of the mother’s personal s. 7 Charter right and therefore there was no possibility of granting her an individual remedy under s. 24(1) of the Charter for the conduct of the agency.
[55] On the s. 7 Charter issue, the majority of the Court concluded that the Manitoba child protection legislation was constitutionally sound because the removal of a child without prior judicial authorization, regardless of whether the circumstances for the warrantless removal were an emergency or non-emergency, was justified by the procedural protections in the legislation that provided for judicial oversight in a fair and timely way. While removal of children from their parents’ custody infringed the parents’ right to security of the person under s. 7 of the Charter, it did not contravene the principles of fundamental justice where the statutory scheme provided that (i) the removal was based on “reasonable and probable grounds to believe that the child is at risk of serious harm”, and (ii) the resulting disruption of the parent-child relationship was minimized by a fair and prompt post-removal hearing on whether the child was in need of protection, which process included reasonable notice with particulars to the parents and an opportunity for them to participate meaningfully in the proceedings: K.L.W. at paras. 121–127.
[56] The Court declined to set a precise constitutional standard for delays in the child protection context, holding that “the principles of fundamental justice do not require total uniformity among provinces and territories; they must be given some flexibility in designing administrative regimes in light of the particular needs of their respective communities”: K.L.W. at para. 125. With respect to variation among different provincial schemes, the following statement is noteworthy:
[117] … the constitutional standard may be expressed as follows: where a statute provides that apprehension may occur without prior judicial authorization in situations of serious harm or risk of serious harm to the child, the statute will not necessarily offend the principles of fundamental justice. Determining whether a specific statute establishes such a minimum threshold will require an examination of the relevant provisions in their legislative context … [Emphasis added.]
[57] In my opinion, the Province’s submission on K.L.W. cannot succeed at the preliminary stage of an application to strike the Respondents’ claim. Although the majority in K.L.W. declined to set a firm standard for delays, the question of whether the delays accommodated by the CFCSA are constitutional is not obviously res judicata. The scheme in British Columbia, while analogous to Manitoba’s in some respects, contains features that did not receive constitutional scrutiny in K.L.W. Whether the CFCSA establishes the requisite minimum threshold and meets the necessary procedural requirements has not been the subject of judicial consideration.
[58] Having determined that the Respondents are not barred from relying on procedural fairness as the principle of fundamental justice applicable to their claim, I need not consider the Province’s submission that the Respondents have failed to plead a principle of fundamental justice that complies with the requirements set out in Malmo-Levine.
[59] Damages under s. 24(1) of the Charter are a “unique public law remedy” that serve one or more of the objectives of: compensation for loss and suffering caused by the Charter breach; vindication of the Charter right by emphasizing its importance and the gravity of the breach; and, deterring the state from committing future breaches: Ward at paras. 24‒31.
[60] I do not understand the Province to contest that Charter damages would be functionally justified under the standard in Ward, if the Respondents’ s. 7 rights were found to have been breached. Accordingly, I move to the third Ward factor.
[61] “Not every bare allegation claiming Charter damages must proceed to an individualized, case-by-case consideration of its particular merits”: Ernst v. Alberta Energy Regulator, 2017 SCC 1 at para. 26 (per Cromwell J., writing for himself and Karakatsanis, Wagner, and Gascon JJ.). Even if a claimant establishes that a Charter right is breached and that damages are functionally justified, the state may establish countervailing considerations that render s. 24(1) damages inappropriate or unjust. The range of countervailing considerations remains to be developed as this area of the law matures, but Ward identifies that the existence of alternative remedies and good governance concerns are two apparent countervailing considerations: Ward at para. 34.
[62] In my opinion, the existence of alternative remedies both in private law and through the operation of the CFCSA are both compelling countervailing factors that demonstrate the Respondents’ claim for Charter damages has no reasonable prospect of success and should not consume scarce judicial resources by going to trial. As Moldaver J. identified in Henry:
[38] Where the state can show that another remedy is available to effectively address a Charter breach — whether under the Charter or in private law — a damages claim may be defeated at the third step of Ward. For instance, if a declaration of a Charter breach would adequately achieve the objectives that would otherwise be served by a damages award, then granting damages as well as a declaration would be superfluous, and therefore inappropriate and unjust in the circumstances [citations omitted].
[63] The Province argues that certain of the alleged s. 7 Charter breaches amount in substance to allegations of the tort of negligent investigation notwithstanding the Respondents’ abandonment of that cause of action. For example, in their NOCC the Respondents plead that the Director contacted Mr. Quinn’s estranged adult children and relied on information from them to substantiate their removal decision:
[18.1] …The [Director] maintained regular contact with the Estranged Adult children and induced, received and accepted as true [their] collateral, dated and unsubstantiated allegations…
[64] I agree with the Province that these types of allegations have no reasonable prospect of success in light of the reasoning in Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38. In that decision, Abella J., writing for the Court, rejected the imposition of a private law duty of care on the Centre (operated by the Ontario Ministry of Community and Social Services) and one of its social workers in light of an allegation by the parents that the Centre and the social worker had been negligent in treating the child, which caused the child not to be returned to them. Justice Abella reasoned that a “compelling policy reason for refusing to find proximity” between the parents and the Centre was the overriding statutory focus on the bests interests of the child:
[41] The deciding factor for me, as in Cooper and Edwards, is the potential for conflicting duties: imposing a duty of care on the relationship between the family of a child in care and that child’s court-ordered 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.
[65] This reasoning, in my view, is equally compelling in the case at bar. The Respondents’ allegations, which in substance amount to the tort claim of negligent investigation, have no reasonable prospect of success. There is insufficient proximity between the Respondent parents and the Director to ground a duty of care for that tort in light of the Director’s “transcendent statutory duty” to promote the best interests of children under the CFCSA.
[66] However, bad faith conduct of the Director and his delegates is not insulated from review. Section 101 of the CFCSA directs that officials administering the child protection scheme are exempted from personal liability only to the extent of “anything done or omitted in good faith” (emphasis added) in exercising their powers under the statute. In my view, other parts of the Respondents’ pleadings speak to the tort of misfeasance in public office, which captures conduct that is “specifically intended to injure a person or class of persons”, or the conduct of “a public officer who acts with knowledge both that she…has no power to do the act complained of and that the act is likely to injure the plaintiff”: Odhavji Estate v. Woodhouse, 2003 SCC 69 at para. 22; J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308 at paras. 319‒31. That sort of activity would presumably fall outside the ambit of the exemption from liability in s. 101 of the CFCSA if the material facts were made out:
[18.2] … [The Director] induced, or knowingly affected the opportunity of the child, [T.T.], to give statements that were false and unreliable (by reason of the nature of the allegations and the circumstances in which the allegations were made and because of the influence of the [Director]) for the improper purpose of legitimizing the [Director’s] decision to remove the [Respondent] children before taking appropriate and necessary investigatory steps…
…
[18.5] …The sole focus of the [Director’s] actions prior to and subsequent to the Removal was to build a case against the [Respondent] parents, in particular, the [Respondent] Quinn, for the purpose of legitimizing the arbitrary and unlawful Removal.
[67] Without engaging in the question of whether these pleadings are sufficiently particularized, I conclude that these allegations are akin to the intentional tortious/bad faith conduct captured by the tort of misfeasance in public office, which is appropriately addressed through private law processes as Ward, and especially Henry, direct. A determination that the Director or his or her delegates engaged in misfeasance in public office would “adequately achieve the objectives” that would otherwise be served by a remedy of damages under the Charter, especially compensation for harm: Henry at para. 38.
[68] The remainder of the Respondents’ claim that their s. 7 Charter rights were breached essentially rests with their allegations that the Director’s failure to act in a procedurally fair manner and in bad faith negatively impacted their psychological integrity. However, while not framed as such, the substance of their complaints would seem to be founded in the delay in the process of reaching the protection hearing, which they assert removes any incentive to challenge the Director’s decision and results in parents simply consenting to the return of the children to avoid any further delays that would inevitably occur with a protection hearing. In my view, this assertion is effectively a cloaked constitutional challenge to the provisions of the CFCSA and the integrity of the administration of the child protection scheme. However, to the extent that the Respondents plead generalized public law allegations such as, for example, that the Director “owed an ongoing duty to the [Respondents] to investigate fairly and honestly…whether a less disruptive means of protecting the [Respondent] children had become available” (Draft Amendment Statement of Facts at para. 23), I would underscore that the Respondents did not mount a Charter challenge to the CFCSA scheme itself. It is difficult to assess the meaning of such pleadings in an action outside of that context (e.g., whether fundamental justice requires certain types of procedural safeguards if the statute is to be constitutionally compliant, which was a question in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177).
[69] In my opinion, the appropriate way to protect the psychological integrity of the parents would have been to raise any concerns with the procedures followed by the Director at the earliest possible occasion, namely at the presentation hearing. This would likely have had the result of avoiding the very harm the Respondents say occurred. In other words, engaging with the processes available under the CFCSA would have been an adequate alternative to seeking a claim for Charter damages.
[70] The Director’s alleged conduct could have been challenged at the presentation hearing, which may have tilted the scales either against their removal or perhaps in favour of less disruptive measures. However, the objections raised at the presentation hearing focused principally on the reasonableness of the Director’s belief for the need to remove the children and not the process by which those beliefs were developed.
[71] In particular, the Respondents’ most disturbing allegations — for example that the Director “induc[ed] the complainant, [T.T.], to confirm and make statements that were untrue” (Draft Amendment Statement of Facts at para. 18.2) and “investigated in a biased manner and for an improper motive” (Draft Amendment Statement of Facts at para. 18.1) were never raised at the hearing. Other examples are allegations that the Director “failed to fairly investigate all the facts” (Draft Amendment Statement of Facts at para. 22; see also para. 22.7). These pleadings are grounded in the Respondents’ assessment of the probative value of particular pieces of information or the individuals upon which the Director relied. Absent a constitutional challenge to the child protection scheme, substantive disagreements of that kind should be resolved within the framework set out in the CFCSA, as their resolution through that framework is the most effective way to protect the children whose safety may or may not be at risk. Thus, while the Respondents’ claim deploys the language of procedural fairness as a principle of fundamental justice, few of the facts particularized actually support the conclusion that that fairness is their concern; instead, and what the Respondents call “unfair” or “biased” conduct is more properly characterized as a substantive challenge to the outcome of the Director’s investigation.
[72] Last, I am not persuaded that this conclusion insulates the conduct of the Director in his decision making. I acknowledge that judicial review is of little utility in these circumstances because presentation and protection hearings do not directly place the Director’s conduct at issue: E.B. v. British Columbia (Director of Child, Family and Community Services), 2016 BCCA 66 at para. 71. However, this view of the process overlooks the CFCSA’s design: those hearings provide would-be petitioners with a more effective and speedy remedy than judicial review. Pursuant to s. 34 of the CFCSA, presentation hearings occur “no later than 7 days after the day a child is removed under section 30”. While adjournments of presentation hearings do occur, as they did in this case, s. 33.3 of the CFCSA provides an overriding direction that “[a] presentation hearing is a summary hearing and must be concluded as soon as possible”. At the presentation hearing, pursuant to s. 35 of the CFCSA, the Director must present a written report that includes the circumstances based on which the child was removed, an interim plan of care for the child, and information about any less disruptive means the Director considered pre-removal. At the hearing, the judge determines whether there are reasonable grounds to believe the child is in need of protection. While the practice is that certain evidentiary conflicts are resolved in the Director’s favour at the presentation hearing (see B.B. at para. 14), this scheme effectively results in a more invasive form of judicial oversight than judicial review, as the presiding judge need not defer to the Director’s conclusions on whether there were reasonable grounds to believe that the child needed protection.
[73] For the foregoing reasons, in my view the appeal must be allowed on the basis that the Respondents have no reasonable prospect of success in the claim they plead. They are unable to establish that damages would be a “just and appropriate” remedy for their alleged s. 7 Charter violations. Absent a Charter challenge to the child protection scheme, any breach of the Respondent parents’ psychological integrity could have been vindicated by engaging with the process under the CFCSA and, if supported by the pleading of material facts, by seeking private law remedies such as in the tort of misfeasance of public office.
[74] Although not necessary to the disposition of this appeal, many of the considerations discussed above also inform a finding that the judge erred in failing to strike the Respondents’ claim pursuant to the broader doctrine of abuse of process.
[75] The Province submits the Respondents’ claims should be dismissed as an abuse of process because they: (i) amount to collateral attacks on valid CFCSA orders that were not challenged; and (ii) fall into the general doctrine of abuse of process, in particular because they are effectively negligence claims and indirect challenges to the constitutional validity of the CFCSA “dressed up” as a civil action for Charter damages.
[76] In general, a collateral attack is “an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment”: Wilson v. The Queen, [1983] 2 S.C.R. 594 at 599, cited in Garland v. Consumers’ Gas Co., 2004 SCC 25 at para. 71. The harm addressed by the rule against collateral attack is not about the correctness of a judicial or administrative decision but in the attempt to impeach that decision “by the impermissible route of relitigation in a different forum”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para. 46; see also British Columbia (Workers’ Compensation Board) v. Figliola 2011 SCC 52 at para. 30.
[77] Both the doctrines of collateral attack and abuse of the court’s process engage “the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute”: Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.) at para. 55, per Goudge J.A., dissenting, aff’d 2002 SCC 63. The purpose of the doctrines is “to prevent unfairness by preventing ‘abuse of the decision-making process’”: Figliola at para. 34, citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 20; Garland at para. 72; and Toronto (City) at para. 37.
[78] Although close, the Respondents’ claims do not in my view amount to a collateral attack on the orders of the Provincial Court because they allege that the Director’s conduct resulted in breaches of their Charter–protected rights. While the factual matrix underlying their claims captures, to some extent, the proceedings in the Provincial Court, nothing in the claim per se undermines the orders made there.
[79] In support of their position on this point, the Respondents rely on this Court’s comments in E.B., where the Director appealed a decision dismissing its application to strike the parents’ judicial review petition challenging aspects of the child protection proceedings in the Provincial Court. In that context, Mr. Justice Groberman, for the Court, wrote:
[70] The Director argues that a judicial review application would amount to a collateral attack on the Provincial Court proceedings. I am not convinced that that is the case. The CFCSA requires both presentation hearings and protection hearings, but neither is per se a review or an endorsement of the actions that the director takes to remove the child. The chambers judge said:
[126] It is at least theoretically possible that the court could conclude that a child needs protection, and also conclude that the director acted improperly in apprehending a child under s. 30 of the CFCSA. In such circumstances, the court would not order the return of the child to the parents, although the court might give other relief, such as a declaration that the Director’s conduct was wrongful. While the court will consider the protection of children to be paramount, this court maintains the ability to supervise the conduct of decision-makers such as the Director.
…
[72] I agree with that assessment. The question of whether the child is in need of protection is one for the Provincial Court under the CFCSA. On the other hand, the Provincial Court is not given the authority to directly review the conduct of the Director in removing the child.
[Emphasis added.]
[80] As the authority of the Provincial Court under the CFCSA does not include the authority to directly review the Director’s conduct, a civil action impugning the Director’s conduct alone would not in my view constitute a collateral attack on orders of that court made at presentation or protection hearings. However, I agree with the Province’s alternative submission on this point, namely that the Respondents’ claim falls within the wider doctrine of abuse of process.
[81] The more general doctrine of abuse of process prohibits relitigation of a matter that would “violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice”: Figliola at para. 33. In Figliola at para. 34, Abella J., for the court, summarized the principles underlying this doctrine:
· It is in the interests of the public and the parties that the finality of a decision can be relied on (Danyluk, at para. 18; Boucher, at para. 35).
· Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings (Toronto (City), at paras. 38 and 51).
· The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature (Boucher, at para. 35; Danyluk, at para. 74).
· Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision (TeleZone, at para. 61; Boucher, at para. 35; Garland, at para. 72).
· Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources (Toronto (City), at paras. 37 and 51).
[82] In my view, the judge erred in failing to strike the Respondents’ claim pursuant to the broader doctrine of abuse of process. As elaborated upon above, the substance of the Respondents’ allegations is that the Director variously breached their procedural fairness rights under s. 7 of the Charter; ignored relevant evidence; or intentionally built a case against them to “legitimiz[e] the arbitrary and unlawful [r]emoval” (Draft Amendment Statement of Facts at para. 18.5). Although the Respondents’ allegations may not fit squarely into the doctrine of collateral attack due to this Court’s decision in E.B., in my opinion they do fall within the wider doctrine of abuse of process. These are essentially substantive challenges to the outcome of the Director’s investigation, which should have been resolved within the framework set out in the CFCSA. It is the Director’s investigation — both its substance and the manner in which it proceeded — that were clearly implicated in Wood P.C.J.’s assessment of the reasonableness of the Director’s grounds to remove the children. I say this while acknowledging that a judge’s decision at a presentation hearing is not “per se a review or endorsement of the actions that the Director takes”: E.B. at para. 70.
[83] Significantly, the Respondents do not appear to have pleaded any particular facts supporting their allegations beyond those that were available to them at the presentation hearing before Wood P.C.J. In my view, the failure of the Respondents to have raised those allegations at the presentation hearing hinders the efficacious operation of the child protection scheme. Raising them years later undermines it even further.
[84] These concerns do not appear to have been considered by the judge below. My review of her reasons suggests that the central basis upon which she declined to dismiss the Respondents’ claim as an abuse of process was her view that they were not “seeking to use court resources in order to re-hear a previously litigated matter”. However, for the reasons stated, the concerns alluded to above demonstrate that this point takes too narrow a view of the doctrine of abuse of process. In short, the parents improperly are attempting to raise issues in another proceeding, which they could have, and indeed should have, raised in the CFCSA proceedings.
[85] In the result, I would allow the appeal, grant the Province’s application to strike the NOCC as having no reasonable prospect of success under R. 9-5(1)(a) of the SCCR and as an abuse of process under R. 9-5(1)(d) of the SCCR, and dismiss the Respondents’ application for the Draft Amendment.
“The Honourable Madam Justice D. Smith”
I AGREE:
“The Honourable Madam Justice Stromberg-Stein”
I AGREE:
“The Honourable Madam Justice Dickson”