Shaken baby case mcneill

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: L.C. & L.S. v. H.M.T.Q. et al, 2005 BCSC 1668

Date: 20051201 Docket: S54706

Registry: New Westminster

Between:

L.C. & L.S. Plaintiffs

And

Her Majesty the Queen in Right of the Province of British Columbia, carrying on business as the Ministry of Children and Families

Defendant

Before: The Honourable Madam Justice Fisher

Reasons for Judgment

Counsel for the Plaintiffs K. Morrison

Counsel for the Defendant E.W. Lewis, N. Barnes

Date and Place of Trial/Hearing: New Westminster, B.C.May 9, 10, 11,

September 26, 27, 28, 29, 30, andOctober 3, 4, 5, 2005

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L.C. & L.S. v. H.M.T.Q. et al Page 2

[1] This case illustrates the difficulties inherent in child protection investigations

where a parent steadfastly maintains her innocence and medical opinion suggests

her guilt. At issue is whether the Crown has any vicarious liability in negligence for

acts done or not done by social workers employed by the Ministry of Children and

Families, exercising delegated statutory authority in the course of such an

investigation.

[2] On the evening of November 1, 1996, L.C. took her seven-week-old baby,

D.C., to the local hospital. D.C. had a severe skull fracture. He was in critical

condition and was transferred to Children’s Hospital in Vancouver. The medical

experts there formed the view that D.C.’s injuries were not accidental. The head

paediatrician contacted the Ministry, who removed D.C. and his two older siblings

from the home. Fortunately, D.C. recovered well enough to be discharged from

hospital about one month later. The Ministry placed him in the home of L.C.’s

mother, the plaintiff L.S.

[3] The Ministry conducted an investigation. At the time the injury apparently

occurred, L.C. and her three-year-old son were at home with D.C. The experts at

Children’s Hospital were of the view that the injuries could not have been caused by

a three-year-old and were most likely the result of severe shaking. L.C. has always

maintained that she did not harm D.C. While not witnessed, she thought that the

three-year-old must have accidentally caused the injuries to D.C.

[4] The two older children were returned to the parents in March 1997, but D.C.

was not. The Ministry decided to make an application in B.C. Provincial Court for a

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continuing custody order for D.C. The matter went to trial and the judge made an

order returning D.C. to his parents.

[5] L.C. and L.S. bring this action against the Ministry in negligence. They say

the Ministry’s social workers did not conduct a proper investigation and should have

returned D.C. to his parents without going to court. They claim damages for loss of

income and for the legal and associated costs incurred in the Provincial Court

protection hearing.

[6] The Ministry says that L.C. and L.S. do not have a cause of action in

negligence in these circumstances, and alternatively if they do, the Ministry’s social

workers acted in good faith and were not negligent.

BAN ON PUBLICATION

[7] On May 9, 2005, I granted a ban on the publication of the names of the

parties, the children, and family members, in order to protect the identities of the

children involved in this case. Counsel for the Ministry also sought a ban on the

publication of the names of the social workers involved in this case, but only if

negligence against them was not proven.

[8] I do not consider it appropriate to restrict publication of the names of the

social workers in this judgment, regardless of the outcome. These individuals were

exercising statutory authority and I see no reason why the court should substitute

initials for their names in these reasons for judgment.

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ISSUES [9] The issues are:

(a) Does the Ministry owe a private law duty of care to L.C., a parent, and L.S., a grandparent, in respect of the duties carried out by the director and his or her delegates in a child protection investigation under the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46?

(b) If the Ministry owes a private law duty of care,

(i) what is the standard of care for its delegates or employees in the exercise of their statutory duties?

(ii) did the Ministry’s delegates or employees breach the standard of care in the circumstances of this case?

(c) If the Ministry’s delegates or employees breached the standard of care, did the breach cause the damages claimed by the plaintiffs?

CONCLUSION

[10] For the reasons set out below, I have concluded that the Ministry does not

owe a private law duty of care to L.S., but that it does owe a private law duty of care

to L.C. in the circumstances of this case. I have also concluded that the scope of

that duty is limited to a duty of due care and good faith, that the Ministry’s social

workers did not breach that duty of care, and that consequently, the Ministry is not

vicariously liable to L.C.

NARRATIVE AND FINDINGS OF FACT

The injuries and initial apprehension of D.C.

[11] The plaintiff L.C. has three children. D.C., born September 7, 1996, is the

youngest. J.C. was born in 1993 and A.C. in 1985. She is married to E.C., who is

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the father of the two younger children, and they have a close-knit extended family.

They had never been involved with the Ministry before November 1996.

[12] On November 1, 1996, L.C. was at home with her two younger children. D.C.

was then seven weeks old. He was sleeping in a bassinet, which L.C. had placed

on the bed in the master bedroom, against the wall. The door to the bedroom was

closed. L.C. was doing housework. At approximately 10:00 am, she went to check

on J.C., then three years old. She found him in the master bedroom. The bassinet

was in the middle of the bed and J.C. was leaning over it, pushing on the baby’s

chest. The baby was crying. She reprimanded J.C. and picked up D.C., who settled

down shortly after. She did not notice any injury to D.C. However, for the rest of the

day, D.C. was uncharacteristically fussy and irritable.

[13] E.C. came home from work at about 6:30 pm. L.C. told him she was worried

about the baby. E.C. thought he looked pale and his eyes were “funny.” L.C.

decided to take D.C. to the local hospital emergency department.

[14] X-rays revealed that D.C. had a serious skull fracture. The right parietal bone

was shattered into a three-pointed stellate fracture. Dr. Hamson, the paediatrician

who examined D.C. that evening, noted in his consultation report:

This baby sustained a skull fracture, presumably from trauma from the 3 year old boy. The mother was very distraught, particularly on hearing that the baby had a skull fracture. I did not get the impression that she had injured the baby. In fact, she seems very upset that presumably the 3 year old had injured him and she started crying, saying “it is all my fault, I should have been more careful with the 3 year old.”

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[15] D.C. had seizures while at the hospital and his condition quickly began to

deteriorate. He was transferred to Children’s Hospital in Vancouver. At one point

the doctors thought he might not survive. He was in the intensive care ward for

several days. Fortunately he began to improve. After about three weeks, he was

discharged back to the local hospital.

[16] The Ministry, through the Director, removed D.C. from the custody of his

parents on November 2, 1996, the day following his admission to hospital. A judge

of the Provincial Court made an order on November 16, 1996, placing D.C. in the

custody of the Director pending a protection hearing. After a meeting with the

extended family on November 29, 1996, the Ministry decided to place D.C. in the

care of his maternal grandparents, the plaintiff L.S. and her husband, as a restricted

foster placement. On December 2, 1996, D.C. was discharged from hospital into

their care.

[17] The Director also removed the other two children on November 2, 1996.

They were eventually placed with a close family friend and were returned to the

parents in March 1997.

[18] In addition, the police were conducting an investigation. The Ministry social

workers and the police kept in reasonably regular contact with each other.

The Ministry’s investigation

[19] There were a number of individuals involved in the investigation of D.C.’s

injuries. The first was Einar Maartman, the intake worker employed in the Ministry’s

After Hours program, who made the initial decision to remove the children. Mr.

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Maartman prepared a detailed After Hours Report, which outlined the information he

obtained from a number of sources, including the parents and paediatricians. He

relied in particular on medical information from Dr. A. Cogswell, who described the

injuries as including retinal hemorrhage, skull fracture, and significant brain damage,

and suggested that D.C. may have been severely shaken and thrown. He also

relied on similar information and opinion from Dr. Jean Hlady, the director of the

Child Protection Service Unit at Children’s Hospital.

[20] In her initial consultation report, Dr. Hlady concluded that D.C. had suffered

severe non-accidental trauma. She based this on the presence of the large skull

fracture, the retinal hemorrhages, and the intracerebral bleeding. She made the

initial calls to the Ministry and to the police.

[21] Deborah Zapp, the acting district supervisor, received the After Hours Report

about D.C. and recognized that this was a complex matter. She sent a report to

Diane Wenger, the acting area manager, and she assigned two social workers to the

file, Leslie Holtby and Paul MacDonald.

[22] Ms. Holtby took steps to obtain for the parents supervised access to their

children and to determine if it was possible to place the children with family or

friends. She and Mr. MacDonald continued with their investigation. On November

15, 1996, they met with Dr. Hlady, who outlined the injuries and explained why she

thought they resulted from shaken baby syndrome. In her Discharge Summary

dated November 21, 1996, Dr. Hlady concluded that D.C. had “suffered severe non-

accidental trauma,” which included a severe head injury with skull fracture, subdural

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bleeding, cerebral edema and retinal hemorrhages. She referred to an examination

of the eyes by an ophthalmologist, who had indicated that there were bilateral retinal

hemorrhages “consistent with severe shaking injury.” She thought it “very unlikely

that these injuries were sustained at the hands of a 3 year old child.”

[23] Ms. Holtby retained Bruce McNeil, a child protection consultant, to prepare a

risk assessment on the C. family. Mr. McNeil found few risk factors, only 4 of 23

possible factors. These factors related to the severity of the injury and the young

age of the child. Some areas were not rated due to insufficient information. In

essence, this was a good family with a lot of strengths. The profile was unusual and

it created a dilemma for the Ministry, when compared to the medical information.

[24] Mr. McNeil recommended that a family assessment be completed, that the

children remain in care pending completion of the investigation and assessment, that

the older two children be placed with a family friend, and that the maternal

grandparents be considered as a potential placement for D.C. He also stated that

“[g]iven the clear medical evidence there is really no choice but to operate on the

assumption that [L.C.] was responsible for the injuries to [D.C.].”

[25] The Ministry implemented Mr. McNeil’s recommendations. Ms. Holtby

retained Dr. Michael Elterman to prepare a psychological assessment of the family.

The scope of his contract included terms suggested by the family’s counsel. Ms.

Holtby did not ask Dr. Elterman to give an opinion about the capacity of the three-

year-old to commit the injury, as the Ministry did not consider this to be within his

expertise.

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[26] On November 29, 1997, the family requested a meeting with the Ministry

social workers regarding the placement for D.C. Ms. Holtby had advised them that

they could not yet proceed to place him with L.S. Ms. Holtby arranged the meeting,

and a fairly large contingent of family and friends attended. Ms. Wenger was in the

building that day and was asked to join the session. After some discussion, Ms.

Wenger agreed that L.S. and her husband would cooperate with the Ministry as

caregivers and would be an appropriate placement, and she approved it.

[27] There was some evidence that Ms. Holtby and Ms. Zapp expressed views to

the effect that L.C. was guilty of causing the injuries to D.C. The family had the

impression that Ms. Holtby and Ms. Zapp, as well as the initial intake worker Mr.

Maartman, had prejudged the case. Each person gave evidence about what they

thought at the time. Mr. Maartman was quite convinced that D.C. had been shaken

and remained firmly of that view. Ms. Holtby, while suspicious, testified that this was

not her perspective, but there was medical evidence pointing that way and the family

needed to understand that in respect of the Ministry’s responsibility. She

acknowledged that she likely told them that it was improbable that the three-year-old

was guilty. Ms. Zapp agreed that she advised L.S. and her husband that they were

not to accuse the three-year-old and that they had to follow the Ministry’s directions

or D.C. would be removed from their care. She denied making statements about

D.C.’s prognosis.

[28] Dr. Elterman completed his assessment in February 1997. He did not find

anything of sufficient magnitude to assist him in identifying a psychological factor

relevant to explaining D.C.’s injuries. He found no information suggesting an anger

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control problem in either of the parents and no evidence that either of the two older

children had been abused in any way.

[29] As a result of Dr. Elterman’s conclusions, the two older children were returned

to the parents under the Director’s supervision for six months, under a consent order

dated March 11, 1997. D.C. remained in the care of the Director for a further three

months under a consent order dated March 14, 1997. He continued to reside with

his maternal grandparents, with supervised access to the parents.

[30] Meanwhile, there were several changes in the Ministry staff. In January

1997, Ms. Holtby left her position to take further education and Ms. Wenger left her

position as acting area manager to become a team leader in another district.

Subsequently, Mr. MacDonald also left. In April 1997, Carol Jones became the

social worker responsible for this file. Ms. Zapp left her position as acting team

leader and Mr. McNeil filled that position on April 1, 1997, for about five to six weeks.

Subsequently, Larry Walters took over as the team leader.

[31] The family continued to work with Ms. Jones to develop a plan of care for the

return of D.C. They also sought further medical information. In May, their counsel

sent to the Ministry a copy of a letter dated May 12, 1997, from Dr. Lionel Traverse,

the paediatrician at the local hospital. He had been asked to review D.C.’s chart and

consider whether the findings could be attributed to the three-year-old sibling of D.C.

Dr. Traverse opined that there were probably three answers:

1. With regards to the skull fracture, the answer is yes. If the impact of a blow falls by chance right on a “point of weakness”, it doesn’t have to be a very strong blow to create a fracture, and

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in my opinion it is possible that a three-year-old could create skull fracture by trying to hold or carry the child and dropping him, or even by directly hitting him with a hard object.

2. Could this blow create such extensive brain damage if it had

been done by a three year old? The answer is, maybe. After a skull fracture it is conceivable that repeated thumping on the chest of the baby by the three year old brother would have created enough increase in the intracranial pressure to potentiate minimal damage due to the initial skull fracture and cerebral hemorrhages. Furthermore, the delay between the suspected initial blow and the initiation of treatment that evening, certainly has allowed secondary brain damage to occur.

3. Finally, could the three year old shake a baby hard enough to

create retinal hemorrhages? The answer to this question is, no. A 4 kg child would be much too heavy for a three year old to shake and to cause a shaken baby syndrome.

[32] Dr. Traverse noted that the ophthamological findings of retinal hemorrhages

were consistent with shaken baby syndrome. However, he noted that the findings

were asymmetrical and because no spinal cord anomalies were found, “one may

wish to pursue further to know if the findings on the left eye particularly, could be

consistent with cerebral edema instead of shaken baby syndrome.” He mentioned

other factors that spoke against a chronic child abuse situation.

[33] Also in May, Dr. Elterman provided an update report to the Ministry. He did

not find psychological evidence related to increased risk. He recommended that

D.C. be returned to his parents.

[34] At this time, the police investigation was continuing.

[35] When Larry Walters assumed the duties of team leader in May 1997, he

consulted with Carol Jones about this case and reviewed some of the key

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documents. He was aware there appeared to be competing medical opinions and

the decision was difficult. Because there was another court date pending and a

decision had to be made, he requested a case conference with all of the people who

had been involved in the case, as well as the current area manager, Valerie London.

He contacted Ms. London on May 27 and 28, 1997, and a meeting was set up for

May 29, 1997.

The Ministry’s decision

[36] At the meeting on May 29, 1997, the Ministry decided not to return D.C. to his

parents and to seek a continuing custody order in Provincial Court. The plaintiffs

take issue with this decision, in light of the conflicting medical opinions about the

possible cause of D.C.’s injuries. They say that the Ministry ought to have deferred

the decision until they made further inquiries in order to properly understand and

reconcile the medical evidence.

[37] Although it appears that this meeting was assembled quite quickly, almost

every worker who had been involved in this case after the initial apprehension

attended: the current and previous social workers, Ms. Jones and Ms. Holtby; the

current and previous team leaders, Mr. Walters and Ms. Zapp; and the current and

previous area managers, Ms. London and Ms. Wenger. Mr. McNeil, the child

protection consultant who had also acted as team leader for an interim period,

attended most of the meeting by telephone. It was unusual for so many individuals

to attend such a meeting.

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[38] Ms. Jones provided a summary of the information in the file, including the

status of the police investigation, her involvement with the family, and the plan of

care they had developed. Most of the participants recalled, in varying degrees,

discussing Mr. McNeil’s risk assessment, Dr. Elterman’s reports, Dr. Hlady’s opinion

and Dr. Traverse’s more recent letter. They weighed Dr. Traverse’s opinion with Dr.

Hlady’s. Each person expressed a point of view. Ms. Jones advocated a return.

Ms. Holtby was sympathetic to the family but was not in a position to argue strongly

for a return. Ms. Zapp did not recall attending the meeting and it is not clear if she

was present for the entire time.

[39] Mr. Walters and Ms. Wenger supported an application for continuing custody,

mainly in reliance on the opinion of Dr. Hlady and her team as the experts in child

abuse. While they considered what Dr. Traverse had to say, they did not accept his

opinion as overriding the child protection team at the Children’s Hospital. Ms.

Wenger said that the Ministry had a formal relationship with the child protection

team, as a resource.

[40] Ms. London first became aware of the case only a few days before this

meeting. She did not review the file in advance. She did not recall reading any of

the medical reports in advance, but she did recall reading Dr. Traverse’s letter during

the meeting. She was briefed by the others at the meeting. As area manager, Ms.

London took responsibility and made the decision. She testified that they weighed a

number of factors, including the severity of the injury, the age of the child, the

medical evidence, the four risk factors identified in Mr. McNeil’s risk assessment, Dr.

Elterman’s recommendation, the support and cooperation of the family, and their

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level of accepted responsibility. She did not consider seeking another medical

opinion because Dr. Hlady had consulted with a number of other specialists. Ms.

London thought they had all of the medical evidence that was available.

[41] All of the participants described the decision as very difficult. Ms. Holtby aptly

described it as a “kind of Solomon decision.” Essentially, they opted to err on the

side of safety for the child by retaining custody and putting the issue before the

court.

[42] Ms. London testified that because of the contrast between the opinions of Dr.

Hlady and Dr. Traverse, she wanted to have one more conversation with Dr. Hlady

to be certain that she had considered Dr. Traverse’s contribution. She instructed Mr.

Walters to contact Dr. Hlady, which he did, with Ms. Jones, by telephone on June 5,

1997. However, it is not clear if Mr. Walters or Ms. Jones discussed Dr. Traverse’s

opinion with Dr. Hlady, at least in any detail. The scant notes taken by Ms. Jones

indicate only that Dr. Hlady “reconfirmed that she is not of opinion that this injury

could have been caused by 3 yr-old” and that Dr. Hlady “would like any other

reports.” There is no evidence that Dr. Hlady received a copy of Dr. Traverse’s letter

at any time up to June 1997.

The Proceedings in Provincial Court

[43] Following the May 29, 1997 decision, the Ministry amended its application for

a further extension of the temporary order of March 14, 1997, and applied for

continuing custody. The hearing started on September 10, 1997, and continued for

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a total of seven days. Unfortunately, these days were scattered throughout the

months of September and December 1997 and March and June 1998.

[44] Dr. Traverse gave evidence on September 17, 1997. He expanded on the

opinion expressed in his letter of May 12, 1997. He was not convinced that D.C.

suffered a shaking injury. He testified:

In my opinion, just simply on the medical findings I find that it is a weak argument again to say that it is a shaken baby because the only argument we have for shaken baby here is the eye findings. The rest doesn’t really speak for it, in particular, the absence of problems in the neck and the CT scanning and … the MRI. These intracranial findings could explain the eye finding on the other end.

[45] Dr. Traverse also said that the eye findings “could very well be explained by

the cerebral edema and the little baby brother thumping on the chest.”

[46] Dr. Hlady gave evidence on December 17, 1997. She confirmed her

diagnosis of shaken impact syndrome. She testified that there were two

components to D.C.’s injuries: the first was the skull fracture and the second was the

swelling of the brain and bleeding in the subdural space. She said that the retinal

hemorrhages were quite severe, and that such hemorrhages do not have to be

bilateral or equal in shaken baby syndrome. She acknowledged that there were no

abnormal skeletal findings in D.C.’s neck or spine and no bruise marks or damage to

the skin. This did not detract from her opinion, as she explained that there are cases

where a baby has been shaken and there are no abnormalities or marks.

[47] Dr. Hlady remained of the view that D.C.’s injuries could not have been

caused by a three-year-old child. She was specifically asked about Dr. Traverse’s

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May 12, 1997 opinion, in particular, his questioning about the ophthalmological

findings. She agreed that the skull fracture could have been caused by the three-

year-old, but disagreed that the child could have caused such extensive brain

damage. She did not think it was a possibility that the child thumping on the baby’s

chest could cause intracranial pressure.

[48] She was asked in cross examination to consider, for the first time, a scenario

where the three-year-old was jumping on the bed, fell, and hit the baby’s head with

his knee. She said this could explain the skull fracture but not the retinal

hemorrhages, the subdural bleeding and the cerebral swelling. Dr. Hlady said that in

a young baby, shaking has to be a strong possibility where there are retinal

hemorrhages, although there are other rare causes, such as major car accidents.

[49] One factual issue that arose from a detailed review of the hospital records,

was when the retinal hemorrhages were first seen. Dr. Hlady agreed that retinal

hemorrhages are almost always present in shaken baby incidents and that a check

for them should be done at the very first opportunity. She also said that they are

easily missed, and that is why she called in an ophthalmologist for a consultation.

The doctor who first examined D.C. when he was admitted to the Intensive Care Unit

at Children’s Hospital did not find any. Subsequently, two ophthalmologists

examined the child and found them. Dr. Hlady did not rely on the first doctor’s

examination, but rather on those of the ophthalmologists. The first ophthalmologist

indicated that the hemorrhages were sub-retinal in nature and the other indicated

that the findings were consistent with a severe shaking injury.

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[50] Up to this point in the hearing, the medical evidence, while more detailed, was

essentially the same as the information that was available to the Ministry at the time

the Director made the May 29, 1997 decision.

[51] During the hearing, the judge noted the serious allegations and indicated that

she hoped the Director would retain a forensic pathologist to review the records and

give evidence to assist the court. The Ministry then sought an opinion from Dr.

Sharon Boone, a forensic pathologist. Dr. Boone wrote a report, dated December

16, 1997, and gave evidence at the hearing on March 11, 1998. Her opinion was

consistent with that of Dr. Hlady. In her report, she stated:

In my opinion, the injuries as outlined are due to the shaken impact syndrome. The shaken impact syndrome has two components, significant shaking of the infant and impact of the head against a hard surface. The impact causes the skull fracture. The injuries are not accidental and could not have been caused by a three year old child.

[52] In her testimony, and in subsequent interrogatories, Dr. Boone remained firm

in this opinion, despite questions about other possible causes for the injuries,

including the jumping hypothesis.

[53] During the hearing, the C. family retained Dr. David Kuntz, a surgeon

qualified in both neurological and orthopaedic surgery. Dr. Kuntz wrote a report

dated April 18, 1998, and gave evidence on June 18 and 22, 1998. Dr. Kuntz did a

comprehensive review of the medical records and the history given by L.C. He

reconstructed the event and developed the hypothesis that “the 3 year old 35 pound

sibling may have been trampolining on the parent’s bed causing the bassinet to

migrate towards the middle of the bed where the bassinet clipped the leg of the 3

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year old who fell knee-first onto [D.C.]’s skull.” He referred to D.C.’s injury as “a very

serious playground injury ‘at the knee of a child’.”

[54] Dr. Kuntz’s report gave an extensive analysis about a number of clinical

findings. He was of the view that the retinal hemorrhages were caused, not by

shaking, but by acute subdural hemorrhage, and that the injuries were aggravated

by the way D.C. was subsequently handled.

[55] Dr. Kuntz concluded that D.C. did not suffer shaken baby or shaken impact

syndrome. He believed the clinical findings were explained by the single impact

knee injury scenario.

[56] The police investigation continued during the course of the proceedings in

Provincial Court, until March 1998, when the police informed the Ministry that Crown

counsel had not approved charges against L.C. due to insufficient evidence.

The Judge’s decision

[57] On August 26, 1998, Judge Maltby ordered that D.C. be returned to his

parents. She outlined the two theories presented to explain the injury to D.C. and

found that L.C. did not cause the skull fracture, but that it was caused by the

“playground knee accident scenario.”

[58] The judge noted that this was consistent with the non-medical evidence:

• the three-year-old was described as being physically and temperamentally capable of the playground accident scenario;

• there was no evidence of any significant risk factors present in

the family to account for a non-accidental injury;

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• there were no other significant stressors in the family and only one in five of shaken baby incidents involve the absence of risk factors in the parents;

• there was no physical evidence from the scene of an

intentionally inflicted injury, such as hair, skin or blood traces on any objects;

• there was no evidence of other injuries frequently seen in child

abuse cases;

• the parents were very much involved with the child and were not noted to have behaved inappropriately while at the hospital;

• the history and surrounding events given by L.C. was consistent

with the other evidence.

[59] With respect to the medical evidence, Judge Maltby agreed with the C.

family’s attack on the medical conclusions of shaken baby syndrome, based on

certain medical facts and knowledge in the hospital records, which should have been

taken into consideration by the Ministry but were not. She found that Dr. Hlady had

agreed with a number of the hypothesis put forward by the C. family during cross-

examination. She found that Dr. Boone had an unscientific approach to the matter, if

not a bias.

[60] Judge Maltby commented on the role of the Ministry:

I do not find that the child was in need of protection … That is not to say that the Director’s representatives were wrong in removing the child when they did. They were presented with an unexplained injury with extremely serious consequences to the baby. An expert in the field, Dr. Hlady, told them that she did not believe that this was an accidental injury. They had a duty to remove the child at that point. If there is an error to be made, it has to be on the side of protecting a child and that was what was done here. But once the explanation for the injury evolved, much of it through the trial process, then it is apparent that the child was in fact, not in need of protection as set out in the Act. (emphasis added)

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[61] The parents asked for costs of the proceedings, but the judge declined to

make such an order. Rule 4(10) of the Provincial Court (Child, Family and

Community Service Act) Rules permits the court to award costs where the judge

determines that calling another party’s expert was unnecessary. Given the

complexity of the evidence, Judge Maltby did not find that any of it was unnecessary.

THE PLAINTIFFS’ CLAIM

[62] The plaintiffs bring this action against the Ministry, claiming it is vicariously

liable for the actions of its agents, servants or employees, in negligence or

“maladministration,” by keeping D.C. in the custody of the director until August 26,

1998, when Judge Maltby ordered him returned to his parents. While they initially

made claims against Dr. Hlady, Ms. Zapp and Mr. Walters, the statement of claim

was later amended to remove these personal defendants.

[63] In particular, the plaintiffs allege that the Ministry was negligent by failing to:

(a) ensure a thorough medical investigation was carried out to ascertain whether or not D.C. had sufficient indicia of child abuse to warrant that diagnosis;

(b) act upon the advice of experts retained by the Ministry; (c) weigh the evidence pertaining to the issue of child abuse fairly,

and without regard to potential adverse publicity; (d) act in good faith in their dealings with the C. family; (e) adequately examine and investigate D.C. to ascertain his

injuries; (f) perform or cause to be performed a differential diagnosis, in

order to ascertain whether or not child abuse was responsible for any of D.C.’s conditions; and

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(g) consider any other likely scenario which might have accounted for D.C.’s injuries.

[64] The plaintiffs claim as special damages the legal fees incurred in the

proceedings before the Provincial Court, L.C.’s loss of income and L.S.’s loss of

income while she remained at home to care for D.C.

[65] There are several problems with the plaintiffs’ case. First, it is brought in

negligence, without alleging that the Ministry owes the plaintiffs a private law duty of

care or particularizing what that duty is. It is also brought in “maladministration,”

which is not a private law cause of action. Second, the plaintiffs claim only special

damages for economic losses, yet the income loss claims appear to arise, at least in

part, from a claim for damages arising from emotional harm. I have been referred to

no case where plaintiffs have advanced only economic loss claims against the

Crown in similar circumstances. Counsel for the plaintiffs advised the court that he

made a deliberate decision not to seek damages for pain and suffering and

emotional harm to L.C., due to the difficulty of separating the causes for this as

between the Ministry’s actions and the obvious trauma of D.C.’s injuries. He

stressed, however, that personal injuries were suffered in this case. Third, the

plaintiffs did not provide sufficient evidence of their alleged damages to meet their

burden of proof. There was no documentary evidence supporting the claim for legal

costs. The income loss claims were supported by pay stubs, but there was little

evidence as to the basis for these claims and no evidence proving causation.

[66] The Ministry defended this action on two main grounds. First, it submitted

that the Ministry owes no private law duty of care enforceable in damages to these

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plaintiffs. Second, if such a duty of care exists, it submitted that the Ministry met the

standard of care required of a reasonable child protection authority in the

circumstances, and its employees exercised their statutory discretion properly and in

good faith.

ANALYSIS OF THE ISSUES

(a) Does the Ministry owe a private law duty of care to L.C., a parent, and L.S., a grandparent, in respect of the duties carried out by the director and his or her delegates in a child protection investigation under the Child, Family and Community Service Act?

[67] Counsel for the plaintiffs submitted that the Child, Family and Community

Service Act (the Act) creates a duty to families, which is a duty that the social

workers employed by the Ministry act in good faith.

[68] Counsel for the Ministry submitted that there is no recognized duty of care in

negligence owed by the Ministry to these plaintiffs for the economic loss they claim.

Applying the test set out by the House of Lords in Anns v. Merton London

Borough Council, [1978] A.C. 728, as adopted by the Supreme Court of Canada in

Kamloops v. Nielsen, [1984] 2 S.C.R. 2 and Cooper v. Hobart, [2001] 3 S.C.R.

537, it says that the claim does not fall into the recognized category of statutory

public authority liability for pure economic loss, that a general duty of care to persons

other than children in need of protection has not been recognized, and that there are

strong policy reasons why such a duty of care should not be recognized in these

circumstances.

[69] While these claims for economic loss arise in quite a different context than the

more usual business or commercial context, it is nevertheless important to consider

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whether this type of loss is recoverable. Recovery in tort for pure economic loss is

limited because of the risks of indeterminate liability. However, Canadian courts

have allowed recovery for pure economic loss where a sufficient relationship of

proximity exists between the plaintiff and the defendant and between the negligent

act and the loss. “Proximity is the controlling concept which avoids the spectre of

unlimited liability”: Canadian National Railway Co. v. Norsk Pacific Steamship

Co., [1992] 1 S.C.R. 1021 at 1152. McLachlin J. (as she then was) stated in Norsk

at pp. 1152-53:

Proximity may be established by a variety of factors, depending on the nature of the case. … In determining whether liability should be extended to a new situation, courts will have regard to the factors traditionally relevant to proximity such as the relationship between the parties, physical propinquity, assumed or imposed obligations and close causal connection. And they will insist on sufficient special factors to avoid the imposition of indeterminate and unreasonable liability.

[70] This approach to proximity was applied in Cooper. In my analysis of the duty

of care, I have applied these principles, which originated in Home Office v. Dorset

Yacht Co. Ltd., [1970] 2 All E.R. 294 and Anns, having regard to the differences in

factual background and the nature of the discretionary power exercised in this case.

Home Office v. Dorset Yacht

[71] In Home Office, the House of Lords set out the parameters under which the

Crown could be liable for the actions of its employees in the exercise of discretionary

statutory authority. It held that there could only be liability if the person entrusted

with discretion either unreasonably failed to carry out his or her duty to consider the

matter or reached a conclusion so unreasonable as to show a failure to do his or her

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duty. In other words, there could be no liability if the discretion was exercised with

“due care.”

[72] The claim was brought by owners of yachts which had been damaged by

borstal trainees. The trainees had been working on an island under the control of

three officers. While the officers were asleep, several of the trainees stole a yacht

and ran it into another yacht. On a preliminary point of law, the question was

whether the Home Office could be held liable for the damage to the yachts. It was

conceded that it would be vicariously liable if an action could be taken against the

officers.

[73] The House of Lords held that the Home Office could be liable on the facts

pleaded. The majority held that the officers owed a common law duty of care to the

owners. Lord Reid accepted the proposition that if a person performs a statutory

duty carelessly so that he causes damage to a member of the public, which would

not have happened if he had performed his duty properly, he may be liable:

The reason for that is, I think, that Parliament deems it to be in the public interest that things otherwise unjustifiable should be done, and that those who do such things with due care should be immune from liability to persons who may suffer thereby. But Parliament cannot reasonably have supposed to have licensed those who do such things to act negligently in disregard of the interests of others so as to cause them needless damage.

[74] He then distinguished cases where a person performs a discretionary

statutory duty:

Where Parliament confers a discretion the position is not the same. Then there may and almost certainly will be errors of judgment in exercising such a discretion and Parliament cannot have intended that

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members of the public should be entitled to sue in respect of such errors. But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The person purporting to exercise his discretion has acted in an abuse or excess of his power. Parliament cannot be supposed to have granted immunity to persons who do that.

[75] While the borstal officers did not have a statutory discretion in that sense,

Lord Reid recognized that they were required to weigh the public interest of

protecting neighbours and their property from escapees with the public interest in

promoting rehabilitation.

Anns v. Merton

[76] In Anns, the House of Lords further defined the circumstances in which the

law would impose private law duties on public authorities discharging statutory,

public law powers and duties. Lord Wilberforce set out a two-stage test. First, is

there a relationship of proximity between the alleged wrongdoer and the person who

has suffered damage sufficient to create a prime facie duty of care? Second, are

there any considerations which ought to negative, reduce or limit the scope of the

duty, limit the class of person to whom it is owed, or the damages to which a breach

of it may give rise? In respect of the second stage of the test, reference was made

to Home Office.

[77] Lord Wilberforce recognized that a public body’s powers and duties are

definable in terms of public and not private law:

The problem which this type of action creates, is to define the circumstances in which the law should impose, over and above, or perhaps alongside, these public law powers and duties, a duty in private law towards individuals such that they may sue for damages in

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a civil court. It is in this context that the distinction sought to be drawn between duties and mere powers has to be examined.

[78] He then described the distinction between policy and operational decisions,

and the element of discretion:

Most, indeed probably all, statutes relating to public authorities or public bodies, contain in them a large area of policy. The courts call this “discretion” meaning that the decision is one for the authority or body to make, and not for the courts. Many statutes also prescribe or at least presuppose the practical execution of policy decisions: a convenient description of this is to say that in addition to the area of policy or discretion, there is an operational area. Although this distinction between the policy area and the operational area is convenient, and illuminating, it is probably a distinction of degree; many “operational” powers or duties have in them some element of “discretion”. It can safely be said that the more “operational” a power or duty may be, the easier it is to superimpose upon it a common law duty of care.

[79] Finally, where an operational decision has discretionary elements:

A plaintiff complaining of negligence must prove, the burden being on him, that action taken was not within the limits of a discretion bona fide exercised, before he can begin to rely upon a common law duty of care.

[80] In Cooper, the Supreme Court of Canada affirmed that Anns continues to

provide a useful framework in which to approach the question of whether a duty of

care should be imposed in a new situation and that its importance lies in its

recognition that policy considerations play an important role in determining proximity

in new situations. It clarified the policy considerations to be considered at each

stage of the Anns test.

[81] The Court confirmed that to find a prima facie duty of care at the first stage of

the analysis, there must be reasonable foreseeability of the harm plus proximity. In

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this regard, two questions arise: (1) Was the harm that occurred the reasonably

foreseeable consequence of the defendant’s act? (2) Are there reasons,

notwithstanding the proximity between the parties established in the first part of this

test, that tort liability should not be recognized here?

[82] The proximity analysis at this stage focuses on factors arising from the

relationship between the parties, which include questions of policy. Proximity is

generally used to characterize the type of relationship in which a duty of care may

arise. Sufficiently proximate relationships are identified through the use of

categories. Categories are not closed. Where the source of the duty involved is in a

statute, the factors giving rise to proximity, if they exist, must arise from the statute.

[83] The second stage of the Anns test should be considered if a duty of care

does not fall within a recognized category, and must be considered where a duty of

care in a novel situation is alleged. This is where residual policy matters are

considered. These are concerned with the effect of recognizing a duty of care on

other legal obligations, the legal system, and society more generally. At this point,

the distinction is made between policy and operational decisions. Similar

considerations may arise where the decision in question is quasi-judicial or, as I

explain further below, discretionary.

Duty of care under the Act

[84] There are few cases in Canada that have addressed the Crown’s duty of care

towards persons other than children in the context of child protection investigations.

The most relevant authority is a 1989 decision of the B.C. Court of Appeal in A.G. v.

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British Columbia (Family and Child Services) (1989), 38 B.C.L.R. (2d) 215.

There, the court confirmed the trial judge’s dismissal of an action by seven children

and their parents against the Superintendent of Family and Child Services and three

social workers. After a brief investigation, one of the social workers formed the

opinion that the father had sexually abused one of the children. All seven children

were apprehended. They were returned home after four days, when the father

agreed to leave the house. Two months later, the father was allowed to see the

children under supervision. Subsequently, after extensive investigations and after a

Provincial Court judge stated her view that the allegations were unfounded, the

Ministry dropped the matter.

[85] The Court accepted that the social workers made significant errors of

judgment in exercising their discretionary power to apprehend the children. There

was conflicting opinion evidence from experts as to whether the social workers’

actions accorded with good practice. Esson J.A. noted that this is a particularly

painful and difficult area, where there is much room for differences of opinion and

errors of judgment.

[86] The trial judge had determined that the doctrines in Anns and Kamloops

were not applicable, as those cases were a long way from the power to take into

custody. Esson J.A. disagreed:

I agree that the general doctrine should not be applied without careful regard for differences in factual background, but cannot agree that the statutory power conferred by s. 9 is outside the general rules of law which apply to liability for wrongful exercise of such powers. The fact that the power is subject to immediate, or at least early, judicial control cannot, by itself, take this power outside the general principles,

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particularly having regard to the drastic nature of the power which is akin to arrest. Nor do I agree that the cases which set out the general principles can be excluded from consideration on the ground that they have to do with inspecting, building and operating “things”. This line of cases has its doctrinal root in Home Office v. Dorset Yacht Co. Ltd. ... which dealt, not with things, but rather with custody of persons. The terminology of “policy function” and “operational function” seems to have had its origin in the speech of Lord Wilberforce in Anns v. Merton. But that, I think, is merely a different way of expressing the distinction drawn by Lord Reid in Dorset Yacht between discretionary decisions and other decisions. That terminology seems more apt in relation to the facts of this case than that of “policy function” and “operational function”.

[87] In MacAlpine v. H. (T.) (1991), 57 B.C.L.R. (2d) 1, the B.C. Court of Appeal

dismissed an action in negligence brought by the owners of property against the

Superintendent of Family and Child Service, two youths who were permanent wards

of the Superintendent, and a foster parent. The youths broke into the plaintiffs’ cabin

several times, destroying two boats, and eventually setting fire to the cabin.

[88] Macfarlane J.A., referring to the Anns test as applied by the Supreme Court

of Canada in Just v. British Columbia, [1989] 2 S.C.R. 1228, concluded that there

was a relationship of sufficient proximity between the Superintendent and the

property owners to warrant the imposition of a common law duty of care:

In placing a troubled child in a home in the community the superintendent must weigh not only the interests of the child, which is his primary obligation under the statute, but must also take into account the public interest concerns of protecting the placement parents, neighbours and their property. Considering that this balancing process must take place in any placement decision, the superintendent would necessarily have to foresee that people will be relying on him not to place children in a careless manner and that carelessness on his part could lead to harm, such as property damage to neighbours of special care children.

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[89] However, the finding of a duty of care did not lead to liability. Macfarlane J.A.

examined two factors to determine if the government agency was exempt from the

imposition of a duty: first, whether the statute provided an explicit exemption, and

second, whether the agency was making a policy decision.

[90] Macfarlane J.A. concluded that the protection provided in s. 23 of the Family

and Child Service Act, S.B.C. 1980, c. 11 exempted the Superintendent from

liability, and it was unnecessary to consider the policy/operational aspect of the

decision. Section 23 provided that no person is personally liable for anything done

or omitted in good faith in the exercise or purported exercise of the powers conferred

by the Act. The current s. 101 provides a similar protection.

[91] In this case, however, the plaintiffs have not brought their action against the

director or any person exercising delegated authority, but only seek damages

against the Crown, through the Ministry, for vicarious liability. The Ministry

conceded that it cannot claim the benefit of the statutory protection in s. 101:

Dorman Timber Ltd. v. British Columbia (1997), 40 B.C.L.R. (3d) 230 (C.A.).

Therefore, no statutory exemption applies in this case. To determine if the Ministry

is exempt from liability for negligence, it is necessary to consider the nature of the

decision at issue. As Esson J.A. stated in A.G. supra, the distinction between

discretionary decisions and other decisions is more apt in relation to this case than

that between policy decisions and operational decisions.

[92] I note that in MacAlpine, Wallace J.A., in dissent, preferred the approach of

Mr. Justice Esson in A.G., applying Home Office to determine liability. He noted

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that Just did not set down as a rule or principle that in every case of alleged liability

of a government agency only one analytical approach is permissible. He concluded

that a decision made in the exercise of a statutory discretion was prima facie

immune from review unless it failed to meet the standard set in Home Office. As

set out below, I have taken the approach described by the Supreme Court of

Canada in Cooper, as adapted to the particular circumstances of this case, as

discussed in A.G. In the end, the result is the same.

Application of the Anns test

[93] In order to determine if the Ministry owes the plaintiffs a duty of care, L.C. and

L.S. must each establish: (a) that the harm complained of is a reasonably

foreseeable consequence of the alleged breach, (b) that there is sufficient proximity

between the parties that it would not be unjust or unfair to impose a duty of care on

the Ministry, and (c) that there exist no policy reasons to negative or otherwise

restrict that duty: Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263 at 295.

Foreseeability

[94] The alleged breach of duty is the Ministry’s failure to properly investigate the

circumstances of D.C.’s injuries. The harm complained of by L.C. is the cost of

defending herself in the child protection hearing and her loss of income due to her

inability, as a result of her emotional state, to return to work. The harm complained

of by L.S. is her loss of income due to her inability to work while she was caring for

D.C. and her delayed return as a result of her emotional state.

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[95] In my view, it was reasonably foreseeable that L.C. would suffer these kinds

of losses if the Ministry social workers failed to properly investigate the matter, and

thus delayed the return of D.C. to his parents. In the particular circumstances of this

case, where the Ministry was working closely with L.S. as a family member and

foster parent, her loss of income was also reasonably foreseeable. Where the

analysis takes a different turn for each plaintiff is on the issue of proximity.

Proximity

[96] As noted above, the source of the duties on which the Ministry’s delegates

acted in this case is the Act, so the factors giving rise to proximity, if they exist, must

arise from the Act.

[97] The Ministry concedes that the Act imposes a duty of care on the director and

his or her delegates to children. There have, in fact, been cases brought by children

against the Ministry and its employees where children have been placed and

subsequently harmed: see, for example, C.H. v. British Columbia (2004), 31

B.C.L.R. (4th) 26 (C.A.). Counsel submitted, however, that the Act does not also

impose a duty of care to parents or families generally.

[98] There have been actions brought against the Ministry and those exercising

delegated authority under the Act or its predecessor Acts by persons other than

children. In some of those cases, the actions were brought by both parents and their

children: see A.G., supra, D.(B.) v. British Columbia (1997), 30 B.C.L.R. (3d) 201

(C.A.), Delaronde v. HMTQ 2000 BCSC 700. The issue of proximity was not

explicitly addressed in these cases, but there is an implication, particularly in A.G.

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that parents are in a relationship of sufficient proximity to the Ministry to create a

prima facie duty of care. As noted above, in MacAlpine, the action was brought by

property owners for damage to their cabin by wards of the Superintendent of Family

and Child Service, and sufficient proximity was found to exist between the

Superintendent and the owners. I note, however, that in none of these cases did the

plaintiffs claim only for economic loss.

[99] Clearly, the Act focuses on children. It deals primarily with child protection

and service delivery to families and children. There is an express direction in s. 2

that the Act “must be interpreted and administered so that the safety and well-being

of children are the paramount considerations.” The guiding principles are:

(a) children are entitled to be protected from abuse, neglect and harm or threat of harm;

(b) a family is the preferred environment for the care and upbringing of

children and the responsibility for the protection of children rests primarily with the parents;

(c) if, with available support services, a family can provide a safe and

nurturing environment for a child, support services should be provided;

(d) the child's views should be taken into account when decisions

relating to a child are made; (e) kinship ties and a child's attachment to the extended family should

be preserved if possible; (f) the cultural identity of aboriginal children should be preserved; (g) decisions relating to children should be made and implemented in a

timely manner.

[100] The Act sets out a process for apprehending a child. The director sets the

process in motion by removing a child where he or she has reasonable grounds to

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believe that the child needs protection, and the child’s health or safety is in

immediate danger or there is no less disruptive measure available that is adequate

to protect the child. Section 13(1) sets out the circumstances where a child needs

protection. Notably, most of those circumstances involve some form of abuse, harm

or neglect by a parent.

[101] Thereafter, the issues are brought to court and it is for the court to determine

if the child is in need of protection and what kind of order should be made.

Throughout the process, the parents have the right to be notified and the right to

attend the hearings before the court. The director has the power under s. 48 to

return a child to the parents before a protection hearing if satisfied that the child is no

longer in need of protection.

[102] This statutory scheme provides a framework to ensure that the director has

discretionary authority to remove children in need of protection, with checks and

balances requiring judicial authorization for interim and continuing custody orders.

The guiding principles set out in s. 2 of the Act reflect the focus on the best interests

of children. One of these principles, that families are considered to be the preferred

environment for the care and upbringing of children, is reflected in the support

services to families. One of the guiding principles for these services is set out in s.

3:

(a) families and children should be informed of the services available to them and encouraged to participate in decisions that affect them ….

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[103] Counsel for the Ministry submitted that the Act is a child welfare statute,

aimed at protecting the rights of children, not parents, relying on Winnipeg Child

and Family Services v. K.L.W., [2000] 2 S.C.R. 519. At issue there was the

constitutional validity of the Manitoba Child and Family Services Act, S.M. 1985-

86, c. 8. The majority of the court concluded that the power to apprehend children in

non-emergency situations without judicial authorization did not violate s. 7 of the

Charter of Rights and Freedoms. In this context, L’Heureux-Dubé, J. for the

majority, stated at para. 80:

Ultimately, however, as the Alberta Court of Appeal recently observed in T. v. Alberta (Director of Child Welfare) (2000), 188 D.L.R. (4th) 603 at para. 14, child protection legislation “is about protecting children from harm; it is a child welfare statute and not a parents’ rights statute”. While parents’ and children’s rights and responsibilities must be balanced together with children’s right to life and health and the state’s responsibility to protect children, the underlying philosophy and policy of the legislation must be kept in mind when interpreting it and determining its constitutional validity.

[104] I agree that the underlying policy of the Act is to protect children from harm.

However, as other cases have shown, persons other than children may be in

sufficient proximity to the Ministry. L.C., a parent, was being supervised by the

Ministry and was working with the social workers with the objective of having her

children returned home. L.S., a grandparent, was also being supervised by the

Ministry as a restricted foster home for D.C. There is clearly a relationship between

the Ministry and these two parties. There must also be sufficient proximity between

the alleged negligent act or breach of duty and the loss.

[105] The Ministry argued that a duty resulting in the kinds of economic losses

claimed in this case may result in liability in an indeterminate amount for an

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indeterminate time to an indeterminate class. As McLachlin J. (as she then was)

directed in Norsk at p. 1152 “[p]roximity is the controlling concept which avoids the

spectre of unlimited liability.” In this analysis, courts must have regard to a variety of

factors, depending on the nature of the case. Here, the alleged negligent act, the

Ministry’s failure to properly investigate D.C.’s injuries, directly affected L.C. She

lost custody of D.C. and took whatever steps she could to get him back. With the

assistance of L.S., she retained a lawyer. She did not return to work as planned

after her maternity leave. These steps resulted in losses that included legal

expenses and loss of income.

[106] The same cannot be said for L.S. While she was certainly affected, the loss

she claims is too remote from the alleged negligent act to satisfy the proximity

analysis. Her loss can be described as a kind of relational loss, as discussed by

Stevenson J. in Norsk, supra at pp. 1175 - 1176. It does not arise directly from the

Ministry’s alleged breach of duty, but rather arises as a result of L.S.’s relationship

with L.C., the alleged injured party. L.C. lost custody of D.C. and L.S. stepped in to

be the child’s primary caregiver while the Ministry investigated and the situation was

resolved one way or another. There was no certainty as to how long this process

was going to take. The Ministry paid her approximately $574 per month while D.C.

was in her care. She voluntarily took time from her work to do this. The same

argument could be made by anyone who took on the role of a restricted foster

placement, whether a member of the family or a close friend. To find a private law

duty of care to persons in the position of L.C. would, in my view, result in

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indeterminate liability to an indeterminate class. It would be unjust or unfair for the

Ministry’s duty to extend to her claim for loss of income in these circumstances.

[107] If I am wrong on the proximity analysis regarding L.S., under the second

stage of the Anns test, the issue of indeterminate liability is a consideration that

should negative the duty of care to her. In my view, the duty should not extend to

the class of person in L.S.’s position, nor should it extend to the damages she claims

in this action.

[108] Finally, a key question is whether the kind of loss claimed by L.C. is within

the purview of the Act: Kamloops, supra, at p. 33. The analysis in Kamloops

regarding economic loss is difficult to apply to the facts of this case. While this is not

the kind of loss the Act was specifically intended to guard against, it is not outside

the purview of the Act, considering the role of a parent in child protection

investigations and hearings. Moreover, I do not think that permitting recovery for

these claims for economic loss would result in unlimited liability. All of the losses are

past losses. The amounts are determinate and the class – a parent in an active

relationship with the Ministry - is specific.

[109] I note that both pecuniary and non-pecuniary damages have been awarded

to children: see C.H., supra and Delaronde, supra. With respect to the legal costs

incurred in the child protection hearing, the Act does not provide for costs to be paid

to parties such as L.C. and Judge Maltby did not award costs. However, in

circumstances where there has been a finding of liability in negligence, a claim for

such costs takes on a different character. A plaintiff should be entitled to claim legal

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costs as out of pocket expenses if he or she is unable to obtain costs in the

protection hearing, and there is a clear causal connection between the negligent act

and the expenses.

[110] In my view, the duty to L.C. should not exclude economic loss under the

proximity analysis. In the particular circumstances of this case, I find there is

sufficient proximity between the Ministry and L.C. to create a prima facie duty of

care. Despite this, there are clear policy reasons to limit the scope of tort liability in

respect of the duties carried out by Ministry delegates in child protection

investigations.

Policy

(i) The nature of the decision

[111] The distinction between discretionary decisions and other decisions, which is

more applicable in this case than the distinction between policy decisions and

operational decisions, should be considered at the second stage of the Anns test:

Cooper at para. 39; A.G. at p. 225. As noted above, the second stage is where the

court considers factors that “ought to negative, or reduce or limit the scope of the

duty, limit the class of person to whom it is owed or the damages to which a breach

of it may give rise”: Anns at p. 752.

[112] The decision under attack in this case - not to return D.C. to his parents -

involves the exercise of a discretion conferred by statute by the director and his or

her delegates, the social workers and their supervisors. These kinds of decisions

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are especially difficult. The trial judge in A.G. gave an apt description of this

difficulty, which was referenced by the B.C. Court of Appeal at p. 228:

Social workers must make difficult choices when determining what to do about a child allegedly in danger. From time to time, we read of a child who dies because he was physically maltreated. The ministry is sometimes blamed for not having done enough. A child may have physical injuries. The ministry investigates. The parent says the child fell. The physicians say that perhaps the injuries came from a fall and perhaps they came from a beating. The child who is neglected may or may not tell the truth. He stays in the home and is abused further. The ministry can do little as it has insufficient evidence. The kind of abuse that [the social worker] feared here is the kind which takes place in private. By its very nature, it rarely is witnessed.

[113] This description is clearly applicable in this case. The Ministry had a very

difficult decision to make. On the one hand, it had a very young child with a very

serious injury. Dr. Hlady, with the support of the medical team at Children’s

Hospital, formed the opinion that the injury was non-accidental, that it was likely the

result of a shaking and impact, and that it must have been inflicted by L.C., the

mother. Dr. Traverse was not so sure, but he did not give a definitive opinion to the

contrary. There was no dispute that if the injury was caused by shaking, it could not

have been inflicted by the three-year-old brother. On the other hand, it had a family

with very few risk factors. None of them had been involved with the Ministry before.

All of them were very distraught about D.C.’s injuries. The mother consistently and

adamantly denied inflicting any injuries. The extended family and friends worked

with the social workers throughout, in the best interests of D.C.

[114] The social workers were not unanimous in their decision to seek an order for

continuing custody. They resolved the dilemma, as some described it, by erring on

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the side of the safety of D.C. As the statute permitted, they brought the issue to the

court to determine.

[115] In A.G., Esson J.A. held that these circumstances were like those in Home

Office, where Lord Reid said at p. 301:

Obviously there is much room here for differences of opinion and errors of judgment. In my view there can be no liability if the discretion is exercised with due care. There could only be liability if the person entrusted with discretion either unreasonably failed to carry out his duty to consider the matter or reached a conclusion so unreasonable as again to show failure to do his duty.

[116] Esson J.A. interpreted this as follows at p. 227 of A.G.:

In that passage, it is stated that there can be no liability if the discretion is exercised with due care. In my view, “due care” in that context does not refer to the degree of care required by the general law of negligence. In the sense in which the term is there employed, there will have been want of due care only if there has been a failure to carry out the duty to consider the matter, or if the conclusion reached is so unreasonable as to show a failure to carry out the duty.

[117] Included within this degree of care is the element of good faith. As the House

of Lords said in Anns, the discretion must be bona fide exercised.

[118] On the basis of these authorities, it is my opinion that the discretionary nature

of the decision involved in this case does not negative a duty of care, but it reduces

or limits the scope of the duty of care. Thus, the duty of care owed by the Ministry to

L.C. is a duty to exercise its discretion with due care and in good faith.

(ii) Conflicting duties

[119] The Ministry submitted that questions of policy relevant to the proximity

analysis should be addressed in the first stage of the Anns test, as described in

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Cooper. Counsel argued strenuously that to find a duty to parents who are

suspected of child abuse would conflict with the duty the Ministry clearly owes to the

child. I was referred to J.D. (F.C.) v. East Berkshire Community Health N.H.S.

Trust and others and two other actions, [2005] U.K.H.L. 23, a recent decision of

the House of Lords, as persuasive authority on this point.

[120] This policy issue is of considerable importance. It may be the kind of broad

consideration that is more appropriately addressed at the second stage of the test.

However, there is no practical difference in considering this issue at either the first or

second stages. As the Supreme Court said in Cooper at para. 27:

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” it occurs.

[121] In, J.D., the House of Lords refused to recognize a duty of care in favour of

parents. The decision, which was based on a preliminary point of law, applied to

three cases where a parent was incorrectly suspected of child abuse. In each case

the parent brought proceedings against the health trust and in one instance against

a physician personally, claiming damages for negligence in the clinical investigation,

diagnosis and reporting of the child’s condition. The primary question was whether

physicians and, vicariously or directly, health trusts, were liable in damages to a

parent in such a case. A parallel question concerned the liability of a local authority

in respect of its investigation of suspected child abuse.

[122] In a four-to-one decision, the majority determined that the duty owed by a

physician or other health professional to a child in making decisions regarding child

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abuse should not be clouded by imposing a conflicting duty in favour of parents or

others suspected of having abused the child.

[123] Lord Bingham, in dissent, expressed the opposite view at para. 44, that

… far from presuming a conflict between the interests of the child and parent the law generally presumes that they are consonant with each other or at any rate, if not consonant, not so dissonant that healthcare professionals should proceed without fully informing and consulting the parents. There are of course occasions when emergency action must be taken without informing the parents, and when information must be for a time withheld. But there is no reason why the occasional need for healthcare professionals to act in this way should displace a general rule that they should have close regard to the interests of the parents as people with, in the ordinary way, the closest concern for the welfare of their children.

[124] Lord Nicholls expressed the counter-argument to this at para. 88:

The claimants sought to meet this ‘conflict of interest’ point by noting that the suggested duty owed to the parents has the same content as the duty owed to the child: to exercise due skill and care in investigating the possibility of abuse. This response is not adequate. The time when the presence or absence of a conflict of interest matters is when the doctor is carrying out his investigation. At that time the doctor does not know whether there has been abuse by the parent. But he knows that when he is considering this possibility the interests of parent and child are diametrically opposed. The interests of the child are that the doctor should report any suspicions he may have and that he should carry out further investigation in consultation with other child care professionals. The interests of the parent do not favour either of these steps. This difference of interest in the outcome is an unsatisfactory basis for imposing a duty of care on a doctor in favour of a parent.

[125] The House of Lords’ analysis of this issue in J.D. was primarily based on the

common law liability of physicians, not on the liability of social workers exercising a

statutory discretion. The plaintiffs had claimed, essentially, that doctors owed to the

parents a duty sounding in damages if they acted in good faith, but carelessly, by

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failing to exercise reasonable and proper care in making a diagnosis of child abuse.

At para. 74, Lord Nicholls stated:

… Clearly, health professionals must act in good faith. They must not act recklessly, that is, without caring whether an allegation of abuse is well-founded or not. Acting recklessly is not acting in good faith. But are health professionals liable to the suspected parents if they fall short of the standards of skill and care expected of any reasonable professional in the circumstances? Are they exposed to claims by the parents for professional negligence? Put differently and more widely, what is the appropriate level of protection for a person erroneously suspected of child abuse? Should he be protected against professional negligence by those charged with protecting the child? Or only against lack of good faith?

[126] Lord Nicholls concluded that the level of protection to be afforded persons

erroneously suspected of child abuse was that clinical and other investigations must

be conducted in good faith. He equated this with the level of protection afforded

generally to persons suspected of committing crimes. This is the only legal recourse

for a person suspected of child abuse in the absence of a common law duty of good

faith arising from a statutory duty.

[127] An earlier decision of the House of Lords, X (Minors) v. Bedfordshire

County Council, [1995] H.L.J. No. 29, addressed the issue in the context of

statutory duties. Five appeals were considered. Two of them involved allegations

that public authorities negligently carried out, or failed to carry out, their statutory

duties in child protection matters. In one of these cases, the child had been abused,

but the social worker and the doctor had wrongly identified the mother’s boyfriend as

the perpetrator. They concluded that the mother was not able to protect the child,

and the child was removed from the home. When the error was discovered almost a

year later, the child was returned to the mother.

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[128] Lord Browne Wilkinson discussed the conflict issue briefly, expressing

concern that local authorities would adopt a more cautious approach in child

protection matters. In considering the exercise of a statutory discretion generally, he

reiterated the law as established in Home Office and Anns. However, with respect

to the child protection cases, he held that, as a matter of policy, it was not just and

equitable to impose a common law duty on local authorities to children or parents in

respect of the performance of their statutory duties to protect children. He based

this on a number of considerations related to the statutory system set up to protect

children at risk. In J.D., it was acknowledged that this proposition was stated too

broadly, and that local authorities may owe common law duties to children in the

exercise of their child protection duties.

[129] I agree with the Ministry that to place a duty towards parents in these

circumstances may subject the Ministry and its delegates to potentially conflicting

duties. These decisions of the House of Lords are compelling. However, the

analysis in J.D. was not made in the context of a statutory duty, but rather in the

context of professional negligence. X (Minors) denied a general duty based on

policy considerations that were pertinent to the child welfare system in England,

which Lord Browne-Wilkinson described as interdisciplinary, involving the

participation of the police, educational bodies, doctors and others, and involving joint

discussions, joint recommendations and joint decisions. He considered that it would

be manifestly unfair to introduce into such a system a common law duty of care

enforceable against only one of the participant bodies.

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[130] Considering the limited scope of the duty of care as I have outlined above, I

do not consider that the imposition of such a duty to a parent places the Ministry in a

conflict of sufficient magnitude that would negative the imposition of any duty.

Provided its delegates exercise their discretion in child protection investigations in

good faith, and with due care, no liability will ensue.

(b) If the Ministry owes a private law duty of care,

(i) what is the standard of care for its delegates or employees in the exercise of their statutory duties?

(ii) did the Ministry’s delegates or employees breach the standard of care in the circumstances of this case?

(i) The standard of care

[131] The standard of care equates with the scope of the duty of care. As outlined

above, the standard of care is that set out in Home Office, which the Court of

Appeal applied in A.G.

[132] Both parties agreed that this is the applicable standard of care. As Lowry, J.

(as he then was) noted in J.H. v. British Columbia, [1998] B.C.J. (Q.L.) No. 2926

(S.C.), the principle in Home Office has the effect of substantially reducing the duty

that would otherwise be owed in a case of negligence. Decisions relating to child

welfare are inherently difficult and liability cannot be founded on errors of judgment

made in good faith: D. (B.), supra, at p. 217.

[133] I pause here to say that narrowing the scope of the duty or lowering the

standard of care is not consistent with the normal duty to take reasonable care in a

cause of action for negligence. However, this is the cause of action that courts

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have recognized and under which the analysis of a duty of care has generally been

made.

[134] In conducting a child protection investigation, then, the Ministry’s delegates

must exercise their discretion with due care and in good faith. Only where there has

been a failure to carry out the duty to consider the matter, or if the conclusion

reached is so unreasonable as to show a failure to carry out the duty, will there be

liability. With respect to good faith, they must honestly consider the facts as they

know them or ought to know them before they make a decision: MacAlpine, supra,

at para. 34, referring to Chaput v. Romain, [1955] S.C.R. 834 at 859.

(ii) Was there a breach of the standard of care?

[135] The plaintiffs say that the social workers were put on inquiry with respect to

matters that may have affected their decision not to return D.C. to his parents, and

that in this way they breached the standard of care. They were put on inquiry

because of the conflict between the medical opinions of Dr. Hlady and Dr. Traverse.

The plaintiffs say that the social workers had a duty to reconcile those conflicting

opinions as best as they could before making the decision of May 29, 1997. Instead,

they simply accepted Dr. Hlady’s opinion without question. By doing so, they

improperly delegated their authority to Dr. Hlady.

[136] The Ministry admits that it is vicariously liable for the actionable conduct, if

any, of the social workers who were involved with the C. family. However, it argued

that all of the individuals involved met the standard of care. They carefully

considered the information that was available to them, weighed it, and decided to err

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on the side of safety to the child. They did not delegate their decision-making

function to anyone. They cannot be faulted for bringing the matter to court, as the

Act clearly provides for this.

[137] The Ministry points to s. 48 of the Act, which gives the director discretionary

authority to return a child before a protection hearing where the director:

(a) makes an agreement with the parent that the director considers adequate to protect the child, or

(b) considers that circumstances have changed so that the child no

longer needs protection.

[138] Counsel argued that the director could not have returned D.C. under this

section because there was no change of circumstances at the time the decision was

made to seek continuing custody and the social workers did not consider that D.C.

was no longer in need of protection. As I understand the plaintiffs’ position, they say

the director ought to have acted under this provision and returned D.C. to his

parents, instead of proceeding to court to seek continuing custody.

[139] I have considered the evidence in light of Judge Maltby’s determination that

D.C. was not a child in need of protection and on this basis, the decision of the

social workers on May 29, 1997 was wrong. D.C. was returned to his parents in

August 1998 and he remains with them today. Fortunately, he is doing well. He is in

the fourth grade, in a special class, and he continues to receive therapy.

[140] I have carefully considered the evidence of the social workers as to the basis

of the May 29, 1997 decision, as well as the information that they considered. While

there was a substantial amount of documentary and other information available to

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them, the written medical opinions were somewhat terse, particularly those of Dr.

Hlady. She was not asked to provide, in writing, a full explanation of her diagnosis

and the basis for it. Despite this, I find that all of the Ministry’s delegates and

employees who were involved in the May 29, 1997 decision understood, as non-

experts, the essence of Dr. Hlady’s medical opinion, as well as the symptoms of

shaken baby syndrome. I note that Ms. Holtby did meet with Dr. Hlady in person on

November 15, 1996.

[141] Dr. Traverse’s opinion was somewhat more fulsome, but it did not provide a

clear alternative diagnosis or explanation for the injury. He was equivocal as to

whether a blow by a three-year-old could create such extensive brain damage. He

raised as “conceivable” the possibility that repeated thumping on D.C.’s chest could

have created an increase in intracranial pressure. He also stated that the delay

between the time of the injury and the initiation of treatment allowed secondary brain

damage to occur.

[142] Dr. Traverse agreed that the findings of retinal hemorrhages were consistent

with shaken baby syndrome, but he questioned whether these findings could be

consistent with cerebral edema instead of shaken baby. He suggested that “one

may wish” to pursue this further. Counsel for the plaintiffs submitted that the social

workers were put on inquiry due to this comment, and that none of them addressed

it in their evidence. However, none of the Ministry witnesses were questioned about

this specific comment, either in direct or cross-examination. They were asked, and

each gave evidence about Dr. Traverse’s answers to the three questions. The

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essence of their evidence is that they were of the view that they had all of the

medical information that was available, and they had to assess it as best they could.

[143] Given the issues raised by Dr. Traverse, it would have been preferable if the

Ministry had followed this up by sending Dr. Traverse’s letter to Dr. Hlady for her

written review and comment. However, I do not consider that this conflict in medical

opinions put the social workers “on inquiry” in the sense that there were facts they

ought to have known that would have affected their decision. Given what took place

in the Provincial Court hearing – that Dr. Hlady was specifically asked about Dr.

Traverse’s comments and essentially maintained her opinion, and Dr. Boone, who

the Ministry retained to provide an independent opinion, confirmed it - the Ministry’s

decision to seek continuing custody would not have changed had they done so. The

evidence of Dr. Kuntz was not available to the Ministry before April 1998. As Judge

Maltby noted, much of the explanation for D.C.’s injury evolved during the hearing.

That is precisely the reason why the Act provides for a judicial determination of

whether a child is in need of protection.

[144] Counsel for the plaintiffs argued that the social workers had a duty to

investigate further. He suggested that they had a duty to investigate the controversy

between the two opinions by going back to Dr. Hlady and to Dr. Traverse and asking

the doctors to “educate” them. I did not understand counsel to suggest that the

Ministry had a duty to seek out a further medical opinion. In any event, they did

obtain Dr. Boone’s opinion at the suggestion of Judge Maltby. They did not seek out

someone with Dr. Kuntz’s qualifications. Counsel did not go so far as to suggest

that the Ministry ought to have done that. However, he argued that the standard for

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the social workers was the same as for a judge, in that they needed to understand

the evidence and weigh it properly.

[145] I disagree. Clearly, the social workers had a duty under the Act to conduct an

investigation. In doing so, they obtained what they considered to be the appropriate

medical information. They are not doctors, and they cannot be expected to fully

understand the intricacies of complex medical findings. They must rely on the

opinions of the medical experts, and assess those opinions along with all of the

other information they gather. They made a decision not to return D.C. to his

parents and to bring the matter to court, because a considerable amount of the

medical information was not consistent with the non-medical information. They are

not judges. While their decision could be described as quasi-judicial in the sense

that it had to be based on evidence, it was a clearly a discretionary decision.

[146] There was evidence of stress within the Ministry due in part to a shortage of

staff and the reorganization that followed the 1995 Report of the Gove Inquiry.

Some of the Ministry’s documentation was inadequate, particularly with respect to

the May 29, 1997 meeting and the follow-up telephone discussion with Dr. Hlady.

Despite this, I find that the social workers responsible for this case conducted the

investigation with due care.

[147] I also find that all of the Ministry social workers acted in good faith. Despite

the turnover of staff on this case, they met together in a somewhat unprecedented

meeting to ensure that each participant’s knowledge and perspective was

considered. Each of them clearly held an honest belief that the facts, as they

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understood them, justified the decision. It was a difficult one. A very young infant

had suffered near-catastrophic injuries. They recognized the divergence between

the medical information that suggested a shaking and impact injury inflicted by an

adult, and the non-medical information, which pointed to a normal family with few, if

any, risk factors. They were aware that one doctor questioned the diagnosis of

another. They considered that this was a case that should be brought to court, and

they proceeded on that basis. They were not of the view that the circumstances had

changed such that D.C. was no longer in need of protection, and they did not

consider that the plan of care that the family had put forward to Ms. Jones was

adequate. They did make the decision quite quickly, but they felt it would not be

reasonable to delay it any longer.

[148] The dilemma of the social workers in this case was very real: they either did

too much or not enough. It they did too much, an innocent mother was considered

to be guilty. If they did not do enough, there was a risk that D.C. could be injured

again. They did not know what happened. They could only rely on the opinions of

various experts, including the doctors, psychologists and consultant social workers.

[149] As noted above, this is an area where there is much room for differences of

opinion and errors in judgment. I fully appreciate that the plaintiffs consider that the

social workers made errors in judgment, and they may not be wrong. As I stated

above, it would have been preferable if the social workers had followed up Dr.

Traverse’s comments more thoroughly with Dr. Hlady. However, they were not

required to be right. I find that the social workers sufficiently informed themselves of

the information necessary to make an honest, good faith decision.

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[150] This was a very different situation than that in A.G., where significant errors of

judgment had been made. Despite that, the court there concluded that the social

workers did not fail to carry out their duty.

[151] Nor is this a case such as C.H., supra. There, the Ministry had removed

C.H., who had significant behavioural problems, from the home of her mother and

step-father. The court granted the Ministry a three-month temporary custody order.

A social worker placed C.H. in the home of her biological father. The Ministry then

withdrew its case under s. 48 of the Act on the basis that the biological father, the

mother and step-father, and C.H. had agreed to this arrangement. The biological

father physically and sexually assaulted C.H. while she was living with him.

[152] The trial judge found that the social worker did not sufficiently inform herself

of the information necessary to make an honest, good faith decision as to the

suitability of the biological father’s home, that she had been put in inquiry with regard

to several potential problems, and that she failed to take those factors into account

in any meaningful way in deciding to withdraw without retaining some mechanism of

supervision. Thus, she could not be said to have honestly considered the facts she

knew or ought to have known. The judge held that the Ministry was negligent by

withdrawing without providing for supervision, in circumstances where supervision

was clearly necessary, and the social worker was not protected by the “good faith”

defence in s. 101. The Court of Appeal upheld the decision.

[153] The plaintiffs here were also concerned that the Ministry social workers

expressed strong views that L.C. was guilty right from the start. Some of them did

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hold that view. While some comments indicated that the family had an uphill

struggle to convince the Ministry to return their child to them, there is no evidence

that any of the individuals acted other than in good faith, and with the best interests

of the D.C. in mind.

[154] There is no question that the entire experience was a very difficult one for the

plaintiffs and their family. Both L.C. and L.S. are sincere and honest people. It is

one thing to deal with such a serious injury to a young baby, but another altogether

to be accused of having caused that injury and then to lose custody of your children

as a consequence. But the social workers, who were confronted with a “kind of

Solomon decision,” made an honest effort, with grounds of substance, to do what

they considered appropriate. That they were wrong was eventually determined

through the court process. It is unfortunate for the plaintiffs that they had to endure

the strain of this process, emotionally and financially, but that is the scheme under

the Act. At the end of the day, the family was reunited. I hope that the plaintiffs will

now be able to put this terrible experience behind them.

[155] I find that the Ministry’s delegates and employees acted with due care and in

good faith. They did not breach the standard of care required of them.

(c) Damages

[156] It is unnecessary to address the issue of damages. However, I note that

there were considerable problems with causation and proof.

[157] One of the main claims was for legal costs. The C. family had retained a

lawyer to represent L.C. early in the process and in the child protection hearing.

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That lawyer also assisted L.S. with a back-up plan for custody of D.C. Counsel for

the plaintiffs advised that the lawyer’s account was approximately $96,000. L.S.

paid these costs, since L.C. could not afford to do so. L.S. also claimed $30,500 for

interest on a bank loan she obtained to pay the legal costs. However, the legal

accounts were not introduced into evidence, nor was there any documentary

evidence regarding the bank loan. Moreover, counsel conceded that only the

portion of the legal fees related to the protection hearing should be recoverable, yet

there was no evidence as to that amount. Finally, there was evidence that L.S.

received some funds from others – approximately $4000 – to assist her to pay the

legal costs.

[158] L.C. claimed a loss of income of $42,555. Counsel conceded that only a

portion of this would be recoverable. There was no expert evidence regarding L.C.’s

emotional state and no evidence proving causation. Counsel simply suggested

recovery of one-third of this amount.

[159] L.S. claimed a loss of income of $7,240.57, for the period September 1997 to

December 1998. L.S. testified that she was unable to return to work until December

1998 because she became depressed. This loss relates in part to a claim for

emotional harm, which was not pleaded. There was no expert evidence and no

evidence proving causation. She acknowledged that the Ministry paid her $574 per

month for taking care of D.C. Counsel submitted that this should not be taken into

account in determining her income loss.

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[160] In my view, the plaintiffs did not prove their damages on the requisite balance

of probabilities.

ORDER

[161] The plaintiffs’ claim is dismissed. The defendant is entitled to costs.

“B. Fisher, J.” The Honourable Madam Justice B. Fisher

December 9, 2005 – Revised Judgment The words “Ban on Publication” are removed from the front page of the Reasons for Judgment. On page 53, paragraph 154, second line, the word “were” is replaced with “are”.

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