Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 SCR 83

                                                 SUPREME COURT OF CANADA

Between:

Syl Apps Secure Treatment Centre and Douglas Baptiste

Appellants

and

B.D., K.D., E.S. and J.D., and

S.D. and A.D. by their Litigation Guardian E.S.

Respondents

‑ and ‑

Attorney General of British Columbia

Intervener

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

______________________________

Syl Apps Secure Treatment Centre v. B.D., [2007] 3 S.C.R. 83, 2007 SCC 38

Syl Apps Secure Treatment Centre and

Douglas Baptiste                                                                                                              Appellants

v.

B.D., K.D., E.S. and J.D., and

S.D. and A.D. by their Litigation Guardian E.S.                                                          Respondents

and

Attorney General of British Columbia                                                                             Intervener

Indexed as:  Syl Apps Secure Treatment Centre v. B.D.

Neutral citation:  2007 SCC 38.

File No.:  31404.

2007:  April 26; 2007:  July 27.

Present:  McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for ontario

Torts — Negligence — Duty of care — Child in need of protection — Child apprehended by Crown and ordered by court to be placed in treatment centre — Whether treatment centre and its social workers owe duty of care to family members of child — When new duty of care should be recognized.

In January 1995, R.D. was apprehended by the Children’s Aid Society and placed in a foster home.  She was 14 years old and had written a story at her school which alleged that her parents had physically and sexually abused her.  After a police investigation, no criminal charges were laid.  R.D. was found to be a child in need of protection and temporary wardship was ordered.  After being placed in foster care and subsequently transferred to several psychiatric facilities, she was sent to a treatment centre where B was her social worker/case coordinator.  R.D., with her consent, was made a permanent ward of the Crown in October 1996.  Her parents, grandmother, and three siblings issued a statement of claim seeking $40,000,000 in damages.  The family’s allegations revolved around their assertion that R.D. was treated by the treatment centre and B as if her parents had physically and sexually abused her, that this was negligent conduct, and that the negligence caused R.D. not to return to her family, thereby depriving the family of a relationship with her.  A motion was filed under Rule 21.01(1)(b) of the Ontario Rules of Civil Procedure to have the statement of claim struck out on the ground that it disclosed no reasonable cause of action.  The motion was granted, but the Court of Appeal set aside the motions judge’s decision.

Held:  The appeal should be allowed.

In order to establish that the treatment centre and B owed R.D.’s family a duty of care, (1) the harm complained of must have been reasonably foreseeable, (2) there must have been sufficient proximity between them and the family such that it would be fair and just to impose a duty of care, and (3) there must be no residual policy reasons for declining to impose such a duty.  Here, reasonable foreseeability is not disputed, but the analysis stalls at the proximity stage.  The deciding factor in this case is the potential for conflicting duties:  imposing a duty of care in respect of 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.  When a child is placed in the temporary care of the Children’s Aid Society, or if Crown wardship is ordered, the Child and Family Services Act creates an inherently adversarial relationship between parents and the state.  The fact that the interests of the parents and of the child may occasionally align does not diminish the concern that in many if not most of the cases, conflict is inevitable.  While it is true that ss. 1 and 37(3) of the Child and Family Services Act, which the family seeks to rely on to ground proximity, make reference to the family, nothing in them detracts from the Act’s overall and determinative emphasis on the protection and promotion of the child’s best interests, not those of the family.  Furthermore, the treatment centre and B are providing services to R.D. in a treatment context, a context that invokes medical paradigms of confidentiality and privacy.  To recognize a duty to parents in this context could also result in conflicting duties in the provision of medical treatment to children who have been removed from their parents’ custody.  It is very difficult to see how different professionals, including doctors and social workers, could all effectively work together if some of them owed a duty other than to the child/patient.  Lastly, the conclusion that there is no proximity is reinforced by two additional reflections of legislative policy.  The first is that the Act itself provides a remedy for families seeking to challenge the way their child is treated.  The second is that there is a clear legislative intent to protect those working in the child protection field from liability for the good faith exercise of their statutory duty, and this intent is reflected in statutory immunity provisions.  Since the statutory mandate is to treat the child’s interests as paramount, there is, where the duties to the child have been performed in accordance with the statute, no liability to the family.  [34] [36‑37] [41‑43] [46] [54] [56] [59‑60] [64]

Cases Cited

Referred to:  Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Anns v. Merton London Borough Council, [1978] A.C. 728; Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79; Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, 2001 SCC 80; Childs v. Desormeaux, [2006] 1 S.C.R. 643, 2006 SCC 18; Donoghue v. Stevenson, [1932] A.C. 562; Children’s Aid Society of Halifax v. S.F. (1992), 110 N.S.R. (2d) 159; Children’s Aid Society of Halifax v. C.M.N. (1989), 91 N.S.R. (2d) 232; Children’s Aid Society for the District of Ottawa‑Carleton v. L.H., [1994] O.J. No. 2501 (QL); Children’s Aid Society of Ottawa ‑ Carleton v. D.L., [1995] O.J. No. 693 (QL); F. (B.) v. Children’s Aid Society of Kingston (City), 1995 CarswellOnt 2154; Children’s Aid Society of Brockville Leeds & Grenville v. C., 2001 CarswellOnt 1504; Children’s Aid Society of Hamilton‑Wentworth v. R. (K.), 2003 CarswellOnt 2929; Family Youth and Child Services of Muskoka v. N.C., [2004] O.J. No. 1733 (QL); A.N. v. Saskatchewan (Minister of Social Services) (1988), 68 Sask. R. 24; King v. Low, [1985] 1 S.C.R. 87; Young v. Young, [1993] 4 S.C.R. 3; New Brunswick (Minister of Health and Community Services) v. L. (M.), [1998] 2 S.C.R. 534; Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165; M. v. Newham London Borough Council, [1994] 2 W.L.R. 554; Sullivan v. Moody (2001), 207 C.L.R. 562, [2001] HCA 59; Gardner v. Rusch (1999), 179 D.L.R. (4th) 336; P.S. v. Batth, [1997] O.J. No. 4089 (QL).

Statutes and Regulations Cited

Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 1, 2(2), 15(6), 37(2)(f), (h), (3), 63(1), 64(4), (7), (8).

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 142.

Ministry of Community and Social Services Act, R.S.O. 1990, c. M.20, s. 4(3).

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01(1)(b).

Authors Cited

Bala, Nicholas.  “Child Welfare Law in Canada: An Introduction”, in N. Bala et al., eds., Canadian Child Welfare Law:  Children, Families and the State, 2nd ed.  Toronto: Thompson Educational, 2004, 1.

Bala, Nicholas.  “The Best Interests of the Child in the Post‑Modernist Era:  A Central but Illusive and Limited Concept”, in Special Lectures of the Law Society of Upper Canada 2000:  Family Law.  Toronto:  LSUC, 1999, 3.1.

Goldstein, Joseph, et al. The Best Interests of the Child:  The Least Detrimental Alternative. New York:  Free Press, 1996.

Linden, Allen M., and Bruce Feldthusen.  Canadian Tort Law, 8th ed.  Markham:  Butterworths, 2006.

APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Sharpe and Juriansz JJ.A.) (2006), 79 O.R. (3d) 45, 264 D.L.R. (4th) 135, 206 O.A.C. 350, 22 R.F.L. (6th) 87, [2006] O.J. No. 181 (QL), setting aside a decision of Hoilett J., 2004 CarswellOnt 8102.  Appeal allowed.

Dennis W. Brown, Q.C., Malliha Wilson and Lise G. Favreau , for the appellants.

Matthew Wilton and Gregory Graham, for the respondents.

Natalie Hepburn Barnes, for the intervener.

The judgment of the Court was delivered by

1                                   Abella J. — Families are the core social unit.  At their best, they offer guidance, nurture,  and protection, especially for their most vulnerable members — children.  When they cannot, and the child is at serious risk, the law gives the state the right, in appropriate circumstances, to remove a child from the rest of the family for his or her own protection.  The significance and complexity of this statutorily assigned responsibility explain the requirement for ongoing judicial oversight.

2                                   This is the child protection context, and it is, not surprisingly, a highly adversarial one.  While it recognizes that the family is the most private of institutions, it also recognizes that the entitlement to be free from state intrusion does not make the family immune from the state’s overriding duty to ensure that children are protected from undue harm, including harm from the family.  Evidence of danger to the child will always attract the state’s attention and, occasionally, involve ordering that the child be placed for his or her own protection in the care of someone other than the family.  The question in this case is whether, a treatment centre and its employee into whose care a child has been placed, owe a hitherto unrecognized legal duty of care to the family of a child they have been ordered to protect.

Background

3                                   In January 1995, R.D. was apprehended by the Halton Children’s Aid Society (“Halton CAS”) and placed in a foster home.  She was 14 years old and had written a

story at her school which alleged that her parents had physically and sexually abused her.  Her parents denied the allegations, claiming, as the Court of Appeal noted, that R.D. was “delusional”.  The Halton Regional Police conducted an investigation.  No criminal charges were laid.

4                                   According to the statement of claim, while in foster care, R.D. attempted suicide.  As a result, she was transferred in February 1995 to the pediatric psychiatric ward of Oakville Trafalgar Memorial Hospital, where she again attempted suicide.  This led, in March 1995, to her transfer to Youthdale Crisis Centre, a psychiatric facility in Toronto, and then, in April, to the Whitby Mental Health Centre.  While at Whitby she attempted suicide for a third time.

5                                   In September 1995, on consent, Fuller J. found her to be a child in need of protection and ordered temporary wardship. The terms of the order included the provisions that, “where possible”, attempts be made to reintegrate her into the family, and that there be a monthly meeting between the Halton CAS and the girl’s parents.

6                                   At this and all subsequent hearings, R.D. was represented by counsel from the Office of the Children’s Lawyer.

7                                   The provisions under which R.D. was found to be in need of protection were s. 37(2)(f) and (h) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“Act”).  At the time they stated: 

37. . . .

(2)       A child is in need of protection where,

 . . .

(f)        the child has suffered emotional harm, demonstrated by severe,

(i)        anxiety,

(ii)       depression,

(iii)      withdrawal, or

(iv)      self‑destructive or aggressive behaviour,

and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

 . . .

(h)       the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child’s development and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, treatment to remedy or alleviate the condition;

8                                   Neither provision relates explicitly to physical or sexual abuse, but both anticipate that a child is suffering from serious emotional harm which the parents cannot or will not remedy or alleviate.  In November 1995, over the objections of her parents but with her consent, Fuller J. ordered that R.D. be sent to the Syl Apps Secure Treatment Centre, operated by the Ontario Ministry of Community and Social Services.  The social worker who was R.D.’s Clinical Case Coordinator at the treatment centre was Douglas Baptiste. 

9                                   R.D.’s temporary wardship order was extended by Fisher J. in April 1996.  In October 1996, with R.D.’s consent, he ordered that she be made a permanent ward of the Crown. The Crown wardship order included a provision that any visitation and contact with family members be at the discretion of the child.

10                               The parents appealed this order.  On December 1, 1998, Clark J. dismissed the appeal, concluding that the trial judge had made no error of law and acted in the best interests of the child.

11                               In November 1998 R.D. turned 18.  

12                               In May 1999, R.D.’s parents, grandmother, and three siblings issued a statement of claim seeking damages of $40,000,000 for the negligence of various government officials and institutions, including the Halton CAS, R.D.’s several social workers and doctors, the Syl Apps Secure Treatment Centre, and Mr. Baptiste.  The family’s allegations revolved around their assertion that R.D. was treated by the treatment centre and Mr. Baptiste as if her parents had physically and sexually abused her, that this was negligent conduct, and that the negligence caused R.D. not to return to her family, thereby depriving the family of a relationship with her.  They sought damages for nervous shock, emotional distress and physical and mental illness, among others.

13                               R.D. was not a party to the action.

14                               In March 2004, the defendant treatment centre and Mr. Baptiste, along with Dr. Richard Meen, a psychiatrist who was the treatment centre’s Clinical Director; Dr. Alina Lazor, a psychiatrist involved in R.D.’s care at the Whitby Mental Health Centre; and Megan Pallet, R.D.’s lawyer from the Office of the Children’s Lawyer, brought a motion under Rule 21.01(1)(b) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking to strike out the statement of claim on the grounds that it disclosed no reasonable cause of action.

15                               The test on a Rule 21 motion was set out by this Court in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959:

[A]ssuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action? . . . Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. [Emphasis added; p. 980.]

16                               The motions judge, Hoilett J., granted the motion (2004 CarswellOnt  8102).  He concluded that the two doctors owed a duty of care only to their patient, R.D.  In his view, R.D.’s lawyer, the treatment centre and Mr. Baptiste were in analogous circumstances to that of a doctor and they also, therefore, owed a duty of care only to the child, not to her family.

17                               The family appealed the order as it related to the Syl Apps Secure Treatment Centre and Mr. Baptiste, not to the two doctors or R.D.’s lawyer. 

18                               In the Court of Appeal, the family abandoned their bad faith argument, resting their case on the proposition that the treatment centre and Mr. Baptiste owed them a common law duty of care giving rise to an action for damages in negligence.  Laskin J.A., writing for the majority, allowed the appeal on the basis that a secure treatment facility and a social worker employed there, may owe a legal duty of care to the family of a child in their care.  The matter should therefore be allowed to proceed to trial: (2006), 79 O.R. (3d) 45.  Sharpe J.A., in dissent, held that the potential for conflicting duties under the statute and court orders, as well as the residual policy consideration of “serious and significant interference with the capacity of the respondents to fulfil their primary and paramount duty to R.D.’s best interests”, negated a duty of care (para. 89).  There was therefore no need for a “case-specific factual inquiry that requires a full record at trial for its proper determination” (para. 90).

19                               Both the majority and dissenting reasons acknowledged that imposing such a duty of care would represent a novel duty at law.  The benefit of making a determination on a Rule 21 motion about whether such a duty should be recognized, is obvious.  If there is no legally recognized duty of care to the family owed by the defendants, there is no legal justification for a protracted and expensive trial.  If, on the other hand, such a duty is accepted, a trial is necessary to determine whether, on the facts of this case, that duty has been breached. 

20                               For the reasons that follow, I agree with the motions judge and with Sharpe J.A. that to recognize such a legal duty to the family of a child in their care, would pose a real risk that a secure treatment centre and its employees would have to compromise their overriding duty to the child.  I also agree with Sharpe J.A. that “the duty of care pertaining to the relationship between children in need of protection and those who are charged with their care should be clearly defined on a categorical basis, rather than being left in a fluid state to be resolved on a case-by-case basis” (para. 74).

21                               I would not, as a result, recognize such a new legal duty.  It follows that, in my view it is “plain and obvious” that the statement of claim discloses no reasonable cause of action against these defendants.

Analysis

22                               The issue in this appeal is whether the Syl Apps Secure Treatment Centre and Mr. Baptiste, R.D.’s social worker/case coordinator there, owe a duty of care to the family of the child they have been ordered by the court to treat.  Because such a duty has never before been recognized, the inquiry engages this Court’s jurisprudence for determining when a new duty of care should be recognized.

23                               The analytic divining rod used by this Court for determining whether a duty of care exists was first proposed in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), adopted by this Court in Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2, and definitively refined in Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79.  It was confirmed in Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, 2001 SCC 80, and Childs v. Desormeaux, [2006] 1 S.C.R. 643, 2006 SCC 18.

24                               To determine whether there is a prima facie duty of care, we examine the factors of reasonable foreseeability and proximity.  If this examination leads to the prima facie conclusion that there should be a duty of care imposed on this particular relationship, it remains to determine whether there are nonetheless additional policy reasons for not imposing the duty.

25                               The basic proposition underlying “reasonable foreseeability” is that  everyone “must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour” (Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), per Lord Atkin, at p. 580).  The question is whether the person harmed was “so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected” (ibid.).

26                               There must also be a relationship of sufficient proximity between the plaintiff and defendant.  The purpose of this aspect of the analysis was explained by Allen Linden and Bruce Feldthusen in Canadian Tort Law (8th ed. 2006) as being to decide “whether, despite the reasonable foresight of harm, it is unjust or unfair to hold the defendant subject to a duty because of the absence of any relationship of proximity between the plaintiff and the defendant” (p. 304).

27                               When the relationship occurs in the context of a statutory scheme, the governing statute is a relevant context for assessing the sufficiency of the proximity between the parties (Cooper, at para. 43; Edwards, at para. 9).  As this Court said in Edwards: “Factors giving rise to proximity must be grounded in the governing statute when there is one” (para. 9). 

28                               Where an alleged duty of care is found to conflict with an overarching statutory or public duty, this may constitute a compelling policy reason for refusing to find proximity (Cooper, at para. 44; Edwards, at para. 6).  Such a conflict exists where the imposition of the proposed duty of care would prevent the defendant from effectively discharging its statutory duties.  In Cooper, for example, a duty to individual investors on the part of the Registrar of Mortgage Brokers was rejected because it was found to “potentially conflict with the Registrar’s overarching duty to the public” (para. 44).  Similarly, in Edwards a private law duty of care on the part of the Law Society to the victim of a dishonest lawyer was rejected at the proximity stage since “[d]ecisions made by the Law Society require the exercise of legislatively delegated discretion and involve pursuing a myriad of objectives consistent with public rather than private law duties” (para. 14).  In both cases, the serious negative policy consequences of these conflicting duties were found to justify denying a finding of proximity.

29                               A statutory immunity provision may also be relevant.  In Edwards a statutory immunity provision was found to be indicative of the Legislature’s intention to preclude compensation beyond the amount provided by the lawyers’ professional indemnity insurance and fund for client compensation (paras. 16-17).

30                               Depending on the circumstances of the case, the factors to be considered in the proximity analysis include the parties’ expectations, representations and reliance (Cooper, at para. 34).  There is no definitive list.

31                               If a prima facie duty of care is found to exist based on reasonable foreseeability and proximity, it is still necessary for a court to submit this preliminary conclusion to an examination about whether there are any residual policy reasons which make the imposition of a duty of care unwise.  As noted in Cooper, “the Donoghue v. Stevenson foreseeability-negligence test, no matter how it is phrased, conceals a balancing of interests.  The quest for the right balance is in reality a quest for prudent policy” (para. 29).

32                               This means, the Court recognized, that policy is relevant at both the “proximity” stage and the “residual policy concerns” stage of the Anns test.  The difference is that under proximity, the relevant questions of policy relate to factors arising from the particular relationship between the plaintiff and the defendant.  In contrast, residual policy considerations are concerned not so much with “the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally” (Cooper, at para. 37). 

33                               The possibility of some blending of policy considerations was noted by McLachlin C.J. and Major J. in Cooper:

Provided the proper balancing of the factors relevant to a duty of care are considered, it may not matter, so far as a particular case is concerned, at which “stage” [policy is considered]. The underlying question is whether a duty of care should be imposed, taking into account all relevant factors disclosed by the circumstances. [para. 27]

34                               Accordingly, in order to establish that the Syl Apps Secure Treatment Centre and Mr. Baptiste owed the family of R.D. a duty of care, (1) the harm complained of must have been reasonably foreseeable, (2) there must have been sufficient proximity between them and the family such that it would be fair and just to impose a duty of care, and (3) there must be no residual policy reasons for declining to impose such a duty.

Applying the Test

35                               The first question is whether it was reasonably foreseeable that the actions of the treatment centre and Mr. Baptiste would harm the family.  That requires asking, to paraphrase Lord Atkin in Donoghue v. Stevenson, whether the Syl Apps Secure Treatment Centre and Mr. Baptiste ought to have taken reasonable care to avoid acts or omissions which they could reasonably foresee would be likely to injure R.D.’s family.

36                               This is a complicated question in the child protection context, as the statement of claim in this case demonstrates.  The “misconduct” the family alleges is the treatment given to the child, and the “harm” complained of was that the child was not reintegrated into her family.  Neither treatment nor its outcome is ever predictable, especially in the case of children found to be in need of protection, where there is more hope than foreseeability.  This branch of the test need not, however, be further explored since, as found by the Court of Appeal and accepted by the parties in their arguments before this Court, reasonable foreseeability is not disputed.

37                               Even if “harm” to the family was reasonably foreseeable, the analysis stalls at the proximity stage.  The family asserts that its expectations and reliance on the defendants are based on the Child and Family Services Act and the court orders.  It argued that because ss. 1 and 37(3)5-7 of the Act  include a recognition of the importance of the family and of the integrity of the family unit, a relationship of proximity should be found.  An examination of the statute contradicts this assertion.

38                               The governing statute is the Child and Family Services Act. Section 1 outlines its purposes.  In language similar to the wording when R.D. was apprehended, s. 1 now states, in part:

1. (1)  The paramount purpose of this Act is to promote the best interests, protection and well being of children.

(2)       The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

1.        To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2.        To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3.        To recognize that children’s services should be provided in a manner that,

i.   respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,

 . . .

39                               Section 37(3) of the Act recounts the factors courts are to consider when making an order in the best interests of a child.  These factors too are almost identical to those in force at the time of R.D.’s apprehension.  The particular factors her family relies on, paras. 5-7, are emphasized for convenience:

37. . . .

(3)       Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1.         The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2.         The child’s physical, mental and emotional level of development.

3.         The child’s cultural background.

4.         The religious faith, if any, in which the child is being raised.

5.         The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

6.         The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.

7.         The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

8.         The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9.         The child’s views and wishes, if they can be reasonably ascertained.

10.       The effects on the child of delay in the disposition of the case.

11.       The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12.       The degree of risk, if any, that justified the finding that the child is in need of protection.

13.       Any other relevant circumstance.

40                               The family also relied on the obligations of service providers under s. 2(2) of the Act to ensure that children and their parents are heard and represented.  These are, however, essentially procedural rights and cannot ground proximity.

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.

42                               When a child is placed in the care of the Children’s Aid Society, or if Crown wardship is ordered, the Act gives the Children’s Aid Society or Crown “the rights and responsibilities of a parent for the purpose of the child’s care, custody and control” (s. 63(1)).  This creates an inherently adversarial relationship between parents and the state.

43                               It is true that treating a child in need of protection can sometimes be done in a way that meets with the family’s satisfaction in the long term.  But it is not the family’s satisfaction in the long term to which the statute gives primacy, it is the child’s best interests.  The fact that the interests of the parents and of the child may occasionally align does not diminish the concern that in many, if not most of the cases, conflict is inevitable.

44                               The primacy of the best interests of the child over parental rights in the child protection context is an axiomatic proposition in the jurisprudence.  As Daley J.F.C.  observed in Children’s Aid Society of Halifax v. S.F. (1992), 110 N.S.R. (2d) 159 (Fam. Ct.):

[Child welfare statutes] promot[e] the integrity of the family, but only in circumstances which will protect the child.  When the child cannot be protected as outlined in the [Act] within the family, no matter how well meaning the family is, then, if its welfare requires it, the child is to be protected outside the family. [para. 5]

(See also Children’s Aid Society of Halifax v. C.M.N. (1989), 91 N.S.R. (2d) 232 (Fam. Ct.), per Butler J.F.C., at paras. 34-36; Children’s Aid Society for the District of Ottawa‑Carleton v. L.H., [1994] O.J. No. 2501 (QL) (Prov. Div.), per Guay Prov. Div. J., at para. 38; Children’s Aid Society of Ottawa ‑ Carleton v. D.L., [1995] O.J. No. 693 (QL)  (Prov. Div.), per Linhares de Sousa Prov. Div. J., at para. 69; F. (B.) v. Children’s Aid Society of Kingston (City), 1995 CarswellOnt 2154 (Prov. Div.), per Dunbar Prov. Div. J., at para. 13; Children’s Aid Society of Brockville Leeds & Grenville v. C., 2001 CarswellOnt 1504 (S.C.J.), per Ratushny J., at para. 15; Children’s Aid Society of Hamilton‑Wentworth v. R. (K.), 2003 CarswellOnt 2929 (S.C.J.), per Scime J., at para. 44; Family Youth and Child Services of Muskoka v. N.C., [2004] O.J. No. 1733 (QL) (S.C.J.), per Glass J., at para. 28; and A.N. v. Saskatchewan (Minister of Social Services) (1988), 68 Sask. R. 24 (Q.B.).)

45                               This Court has confirmed that pursuing and protecting the best interests of the child must take precedence over the wishes of a parent (King v. Low, [1985] 1 S.C.R. 87; Young v. Young, [1993] 4 S.C.R. 3; New Brunswick (Minister of Health and Community Services) v. L. (M.), [1998] 2 S.C.R. 534). It also directed in Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, that in child welfare legislation the “integrity of the family unit” should be interpreted not as strengthening parental rights, but as “fostering the best interests of children” (p. 191). L’Heureux-Dubé J. cautioned at p. 191 that “the value of maintaining a family unit intact [must be] evaluated in contemplation of what is best for the child, rather than for the parent”.

46                               It is true that ss. 1 and 37(3) of the Act make reference to the family, but nothing in them detracts from the Act’s overall and determinative emphasis on the protection and promotion of the child’s best interests, not those of the family.  The statutory references to parents and family in the Act, which the family seeks to rely on to ground proximity, are not stand-alone principles, but fall instead under the overarching umbrella of the best interests of the child.  Those provisions are there to protect and further the interests of the child, not of the parents and therefore, in my view, cannot be relied upon for finding a relationship of sufficient proximity.  As explained by Professor Nicholas Bala:

[L]eading Canadian precedents, federal and provincial statutes and international treaties are all premised on the principle that decisions about children should be based on an assessment of their best interests. This is a central concept for those who are involved making decisions about children, not only for judges and lawyers, but for also assessors and mediators.

(N. Bala, “The Best Interests of the Child in the Post-Modernist Era: A Central but Illusive and Limited Concept”, in Special Lectures of the Law Society of Upper Canada 2000: Family Law (1999), 3.1, at p. 3.1)

47                               Similarly, as Joseph Goldstein et al. noted in The Best Interests of the Child: The Least Detrimental Alternative (1996), at p. 88:

[O]nce justification for state intervention has been established, the child’s well-being — not the parents’, the family’s, or the child care agency’s — must be determinative. . . .  That conviction is expressed in our preference for making a child’s interests paramount once her care has become a legitimate matter for the state to decide. [Emphasis in original.]

48                               The factors in s. 37(3), for that reason, are the servants of the paramount duty in s. 1 to protect the best interests of an apprehended child.  This is reinforced in s. 1(2) which states, in essence, that family and parental relationships are to be recognized only to the extent that they are “consistent with the best interests, protection and well being of children”.

49                               To impose a duty of care towards the child’s family on a treatment centre and its social workers in this context creates a potential conflict with their ability effectively to discharge their statutory duties.  A child in care generally involves “situations in which the care parents provide is considered so inadequate that direct interference by the state is justified to protect children . . . [S]tate interference through removal of a child from parental care will only be justified if it is proven that there is a significant risk to the child” (N. Bala, “Child Welfare Law in Canada: An Introduction”, in N. Bala et al., eds., Canadian Child Welfare Law (2nd ed. 2004), 1, at pp.  1-2).  The finding that R.D. was a child in need of protection, for example, was made pursuant to s. 37(2)(f) and (h) of the Act.  According to the wording of the Act when the order was made, such a finding meant that “the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate” the harm or condition in question.

50                               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.

51                               I appreciate that the family of a child in care would, understandably, generally wish for the return of the child.  But that cannot always be accommodated.  The statutory scheme, in s. 37(3)9, directs that in assessing the child’s best interests, the views and wishes of the child be taken into account, not those of the family.  That does not mean that those views are irrelevant, it means that the statute envisages that in the case of a child in need of protection, the family’s views and wishes are entitled to less deference than the child’s best interests.

52                               Even where the goal is the eventual return of the child, it may not always be possible.  Neither the treatment centre nor Mr. Baptiste, for example, could have anticipated what the effect of their treatment of R.D. would be on her family, nor, in my view, should they necessarily have had the family in their sights.  Their efforts would, by law, have had to be directed at addressing R.D.’s emotional fragility, not that of her family.  Treating a child in distress may or may not result in returning her to the family, but the fact that she does not return may well represent the result of successful treatment, not misconduct or negligence.

53                               If the choice is between the best interests of the child and the family’s wishes, there is, by statute, no choice.  As noted by Sharpe J.A., “once there has been a judicial finding that the child is in need of protection and must be removed from the custody of the parents, those responsible for caring for and treating the child must place the child’s interests ahead of those of the parents” (para. 75).  To impose a duty of care on secure treatment centres and their employees towards both children and parents would interfere with their ability to fulfill this paramount duty to the children.

54                               There is, in addition to the other possibilities for undermining the statutory duty to keep the child’s interests uppermost, another potential conflict.  The Syl Apps Secure Treatment Centre and Mr. Baptiste are providing services to R.D. in a treatment context, a context that invokes medical paradigms of confidentiality and privacy.  Numerous courts have recognized that a doctor does not owe a duty of care to the parent of his or her patient because that would create a situation of conflicting duties of care.  In M. v. Newham London Borough Council, [1994] 2 W.L.R. 554 (Eng. C.A.), a mother’s claim against her child’s treating psychiatrist where the child had been apprehended by the local authority, was dismissed on the ground that the psychiatrist did not owe a duty of care to the mother.  Sir Thomas Bingham M.R. explained:

[T]he mother was not in any meaningful sense the psychiatrist’s patient. The psychiatrist’s duty was to act in the interests of the child, and that might very well mean acting in a way that would be adverse to the personal interests of the mother; she was concerned with those interests only to the extent that they could have an impact on the interests of the child. In this situation of potential conflict, I do not think the psychiatrist can arguably be said to have owed a duty of care to the mother . . . .  [Emphasis added; p. 574.]

(See also Sullivan v. Moody (2001), 207 C.L.R. 562, [2001] HCA 59.)

55                               Similarly, in Gardner v. Rusch (1999), 179 D.L.R. (4th) 336, the British Columbia Supreme Court struck a claim against a counsellor brought by a family of a patient who alleged that her family had sexually abused her.  Beames J. indicated that if the counsellor owed a duty of care to the family in that case it “would put [the counsellor] in direct conflict with his primary duty which he clearly owed to his patient” (para. 17).  And in P.S. v. Batth, [1997] O.J. No. 4089 (QL) (Gen. Div.), Molloy J. refused to find that a doctor owed a duty of care to the parents of a child who complained of sexual abuse since “it is to that patient that she owed a duty of care” and “there can be no duty of care owed to the plaintiff” since it would be contrary to the doctor’s professional obligation to protect the best interest of the child (para. 6).

56                               Recognizing a duty to parents in this context could result in conflicting duties in the provision of medical treatment to children who have been removed from their parents’ custody.  In an environment like a secure treatment centre, different professionals, including doctors and social workers, may be involved in a child’s therapeutic care.  In the present case, both the social worker, Mr. Baptiste, and Dr. Meen were responsible for treating R.D.  Mr. Baptiste was, in fact, appointed by Dr. Meen.  It is very difficult to see how these professionals could all effectively work together if some of them owed a duty other than to the child/patient.

57                               Nor can the family rely on the court orders to ground proximity.  Their claim is based, at least in part, on the premise that, contrary to the court orders, R.D. was never reintegrated into her family.  Reintegration is not what the court ordered.  The order of September 26, 1995, for example, provided that “[t]here will be a monthly meeting arranged between the Society, service providers or their representatives and parents” and that “[a]ttempts will be made during the period of Society Wardship to reintegrate the family where possible” (emphasis added).  This is not an uncommon term given the ostensibly temporary nature of such orders. 

58                               There is, in any event, no tort for breach of a court order, which is effectively what the members of R.D.’s family appear to be seeking.  The parents were present at every court hearing, expressed their positions, and, at each stage, the court, culminating in Crown Wardship, concluded that it was best for their adolescent daughter not to be returned to her parents.  This did not represent a breach of anyone’s duty to the family, it represented the fulfilment of the court’s obligations, based on the evidence, to protect the child’s best interests.

59                               The conclusion that there is no proximity is reinforced when one considers two additional reflections of legislative policy.  The first is that the Act provides a remedy for families seeking to challenge the way their child is treated. If R.D.’s family felt that the Syl Apps Secure Treatment Centre and Mr. Baptiste were not abiding by the terms of the court order during the period of R.D.’s society wardship, the statute expressly gave them a remedy in addition to the right to appeal.  At the time R.D. was in care, s. 64(4) and (7) of the Act provided that where a child was the subject of a society wardship order, a parent of the child could make an application for review of a child’s status every six months.  Section 64(8) further provided that if a major element of the plan for the child’s care in the court order was not being carried out, an exception could be made to the six-month period restriction on status review applications.

60                               Secondly, there is a clear legislative intent to protect those working in the child protection field from liability for the good faith exercise of their statutory duty.  This is reflected in three statutory immunity provisions.  Section 15(6) of the Act states that “[n]o action shall be instituted against an officer or employee of a [Children’s Aid] society for an act done in good faith in the execution or intended execution of the person’s duty or for an alleged neglect or default in the execution in good faith of the person’s duty.”

61                               Section 4(3) of the Ministry of Community and Social Services Act, R.S.O. 1990, c. M.20, contains similar protection against personal liability for employees of the Ministry of Community and Social Services.  At the relevant time, the Syl Apps Secure  Treatment Centre was operated by the Ministry of Community and Social Services.  Moreover, s. 142 of the Courts of Justice Act, R.S.O. 1990, c. C.43, states that “[a] person is not liable for any act done in good faith in accordance with an order or process of a court in Ontario.” 

62                               These immunity provisions lend further support to the conclusion that there is no proximity in the relationship between the family of a child in care and those directed by a court to protect that child’s best interests.  There is, as a result, no basis for recognizing a prima facie duty of care towards the family on the part of the Syl Apps Secure Treatment Centre or Mr. Baptiste.

63                               Although this conclusion makes further assessment unnecessary, another policy consideration confirms that imposing a legal duty of care on the service providers towards the family members of apprehended children would be unwise.  Recognizing such a duty in this context would create the possibility of parallel proceedings, which could lead to a relitigation of matters already determined at the child protection hearing.  This would undermine the child protection scheme, result in unnecessary public expense, and inhibit child protection workers from strategies promoting a child’s best interests for fear of subsequent litigation.  It is difficult to see how any of these potential consequences are in the interests of the legal system or of the public.

64                               Child protection work is difficult, painful and complex.  Catering to a child’s best interests in this context means catering to a vulnerable group at its most vulnerable.  Those who do it, do so knowing that protecting the child’s interests often means doing so at the expense of the rest of the family.  Yet their statutory mandate is to treat the child’s interests as paramount.  They must be free to execute this mandate to the fullest extent possible.  The result they seek is to restore the child, not the family.  Where the duties to the child have been performed in accordance with the statute, there is no ancillary duty to accommodate the family’s wish for a different result, a different result perhaps even the child protection worker had hoped for.

65                               Because there is no legal duty of care owed by the treatment centre and Mr. Baptiste to R.D.’s family, there is no reasonable cause of action against them disclosed by the statement of claim.  No amount of evidence would revise this legal conclusion and, as a result, a trial to determine whether the family is entitled to the damages it seeks would not be justified. 

66                               Accordingly, I would allow the appeal and dismiss the action with costs.

Appeal allowed with costs.

Solicitor for the appellants:  Attorney General of Ontario, Toronto.

Solicitors for the respondents:  Matthew Wilton & Associate, Toronto.

Solicitor for the intervener:  Attorney General of British Columbia, Vancouver.