AN
ORDER HAS BEEN MADE IN THIS CASE PROHIBITING PUBLICATION
OF THE NAMES OF ANY PARTIES THAT COULD DISCLOSE THE
IDENTITY OF THE PLAINTIFF
|
Before:
|
The Honourable Mr. Justice Hollinrake
|
|
The Honourable Madam Justice Rowles
|
|
The Honourable Mr. Justice Oppal
|
|
T. P.
Leadem, Q.C. and
L. D. McBain
|
Counsel for the Appellant
|
|
D. E.
Davison and
G. E. Coad
|
Counsel
for the Respondent
|
|
Place and Date of Hearing:
|
Victoria,
British Columbia
|
|
March 4, 2004
|
|
Place and Date of Judgment:
|
Vancouver,
British Columbia
|
|
July
9, 2004
|
|
Written Reasons by:
|
|
The Honourable Madam Justice Rowles
|
|
Concurred in by:
|
|
The Honourable Mr. Justice Hollinrake
The Honourable Mr. Justice Oppal
|
Reasons for
Judgment of the Honourable Madam Justice Rowles:
I. Overview
[1]
In a judgment released 11 July 2003, the
Ministry of Social Services ("the Ministry") was found liable in
negligence to the respondent C.H. for damages resulting from sexual and
physical assaults perpetrated on her by her biological father after C.H. had
been sent by a Ministry worker to live with him.
[2]
Before the assaults occurred, the Ministry had
already withdrawn from the protection proceeding it had earlier taken under the
Child, Family and Community Service Act, infra, in
relation to the respondent. The trial judge found, at para. 129, that the
negligence of the Ministry lay "in the act of withdrawing without
providing for some sort of supervision in circumstances where supervision was
clearly necessary".
[3]
The reasons for judgment are reported: 2003 BCSC 1055 (CanLII), (2003),
16 B.C.L.R. (4th) 113, 17 C.C.L.T. (3d) 165, 2003 BCSC 1055.
[4]
The appellant does not dispute that the Ministry
owed the respondent a duty of care while she was in the Ministry's care under
the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46
(the "CFCSA") but argues that the trial judge erred in
principle in finding liability against the Ministry.
[5]
The grounds of appeal, set out in the order in
which I address them hereafter, are that the learned trial judge erred:
(i) ...
in his articulation and application of the "good faith" standard to
the social worker's decision to return the Respondent to her parents, and
withdraw from the proceedings.
(ii) ...
in imposing on the Director (and his delegates), as statutory guardian, a
standard of care that exceeds that applicable to a natural parent.
(iii) ...
in imposing liability for the Ministry's failure to "maintain supervision"
over the Respondent when supervision was only available at the discretion of a
Provincial Court judge.
(iv) ... in his
approach to causation in this case in finding a causative link between the lack
of on-going supervision and the abuse without any express finding as to what
form supervision would have taken, and despite an express finding that
supervision would not have revealed the abuse.
[6]
Appellant's counsel stated at the outset of his
oral argument that he did not take issue with any of the trial judge's findings
of fact.
[7]
For the reasons which follow, I would not accede
to any of the grounds the appellant has advanced on this appeal.
II. The background
[8]
As the background is fully set out in the trial
judge's reasons, which are readily accessible, I will only outline the facts
relevant to the arguments on the appeal.
[9]
The respondent's parents separated in 1982 when
she was a little over one year of age. Her biological father, to whom I will
refer as Mr. G., saw the respondent on a few occasions shortly after the
divorce in 1983. In February 1986, when the respondent was four years of age,
her mother remarried. Her husband, Mr. H., legally adopted the respondent
in May 1986 with the consent of Mr. G.
[10] Mr. G. had no contact with the respondent for about 12 years. In
1995, they had a chance visit of several days and, in 1996, they had a
thirty-day visit which did not go well.
[11] The respondent came into the care of the Ministry under the
provisions of the CFCSA in August 1996. The ground for removing
the respondent from the home of her parents, Mr. and Mrs. H., was that she was
a child in need of protection under s. 13(1)(h) of the CFCSA,
that is, where "the child's parent is unable or unwilling to care for the
child and has not made adequate provision for the child's care". At the
time the respondent was apprehended, she had been having increasingly extreme
behavioural problems for several years, some of which posed a potential threat
to the safety of her younger half-siblings.
[12] Following a protection hearing, the Ministry was granted a three
month temporary custody order of the respondent. About two months later, an
application was filed for a three-month extension of the temporary custody
order which was set for hearing on 19 December 1996.
[13] In November 1996 the respondent was sent by a Ministry worker to
live in Mr. G.'s home. At the time, the
respondent's behavioural problems were ongoing and she was suicidal.
[14] Several days before the date scheduled for the extension hearing,
the director withdrew from the protection proceeding. The grounds upon which
the director purported to withdraw were set out in a form filed with the court:
[Mr. G.], [C.H.]'s birth father, and [Mrs. H.]
and [Mr. H.], [C.H.]'s mother and father, have agreed to joint custody between
themselves of [C.H.]. [C.H.] to reside with [Mr. G.].
[C.H.] is in
agreement with this arrangement, and there is no cause of concern for her
safety or well-being.
[15] The trial judge found that Mr. and Mrs. H. had not agreed to a joint
custody arrangement with Mr. G. nor had they agreed that the respondent ought
to reside with him. The trial judge's reasons for not accepting as reliable
the evidence of the social worker in charge of the case are fully set out in
his reasons for judgment and need not be repeated here. Rather than there
being an agreement between Mr. and Mrs. H. and Mr. G. as to the custody and
care of the respondent, as the form stated, the trial judge found that the
social worker was instrumental in the respondent being sent to Mr. G.'s home on
26 November 1996.
[16] After the respondent moved to the G. household she spent much of her
time with Mr. G. Everyone in the house, including the respondent, smoked
marijuana on a daily basis. Mr. G. sold marijuana from the house and provided
the respondent with her supply. Later, Mr. G. withdrew the respondent from
school.
[17] For the first three months, the respondent was quite happy in Mr. G.'s
home. The sexual assaults began in March 1997 and continued, along with the
physical abuse, until August 1997 when the respondent left the household.
[18] As there is no appeal from the assessment of damages, there is no
need to refer to events after the respondent left the G. household.
III. Summary of
the trial judge's reasons on liability
[19] The trial judge held that the Director owed the respondent a duty of
care while she was in the Director's custody and that the Director's decision
to withdraw from the protection proceeding without any supervision in place was
a breach of that duty. The trial judge further held that the "good faith"
exemption in s. 101 of the CFCSA did not apply in the
circumstances of the case. In that regard he concluded that the social worker's
failure to inform herself of the information necessary to make what was
tantamount to a placement decision regarding a very disturbed and vulnerable
young person precluded a finding that the worker acted in an honest belief that
the placement was suitable.
[20] The Ministry effectively placed C.H. in Mr. G.'s care and then
withdrew from the proceeding. The trial judge found that it was "entirely
unreasonable" for the Director to withdraw from the care of the respondent
and to leave C.H. in the home of Mr. G. without any form of ongoing supervision
when "[t]he circumstances known to the Ministry cried out for supervision."
[21] The trial judge found that Ms. Boughen, the social worker, failed to
apprise herself of the information necessary to determine whether it was safe
for the Ministry to withdraw from the proceedings altogether. There was ample
evidence to suggest the placement might be unsuitable and Ms. Boughen was
clearly "put on inquiry" regarding matters of potential concern. The
trial judge found that Ms. Boughen had not formed an "honest belief"
that Mr. G.'s home was safe; instead, it appeared her decision was made with
little regard to the question of the respondent's safety in Mr. G.'s home. In
the result, the trial judge held that the social workers involved had not met
the good faith test and therefore the defence under s. 101 was unavailable.
[22] On the causation issue, the trial judge found that the Ministry's
failure to investigate the G. home was not causally linked to the subsequent abuse
because even if the Ministry had conducted a more thorough investigation, the
respondent would still have been permitted to live there. However, the trial
judge was of the view that the Ministry's decision to withdraw completely
without providing for ongoing supervision invited a different conclusion. The
trial judge said he was unable to conclude that regular contact with the G.
home by the Ministry would have brought the abuse to light; for example, the
respondent did not disclose the abuse to either the probation officer or the
counsellor she was seeing until May 1997. However, the trial judge held that
disclosure is not the only means by which supervision might have prevented the
abuse. The isolated unmonitored setting of constant one-on-one contact between
the respondent and Mr. G. was a breeding ground for the sexual abuse that
eventually occurred. Lack of Ministry supervision was partly responsible for
these circumstances. For instance, had supervision been in place, social
workers would have become aware that Mr. G. had taken the respondent out of
school and that she was entirely unoccupied for months on end. In light of the
degree to which things had strayed from normalcy, the Ministry would likely
have intervened.
[23] On the issue of causation, the trial judge concluded that while
supervision may not have prevented the abuse, the lack of supervision
materially contributed to the occurrence of the abuse.
IV. Grounds of
appeal
(i) Did the trial judge err in his articulation and application of
the "good faith" standard to the social worker's decision to return
the Respondent to her parents, and withdraw from the proceedings?
[24] The appellant conceded both here and in the court below that the
Ministry owed the respondent a duty of care while the respondent was in the
care of the Ministry under the CFCSA. One of the issues at trial
was whether liability could attach to the Crown in light of s. 101 of the CFCSA,
which provides:
101 No person is personally liable for anything done or omitted in
good faith in the exercise or performance or intended exercise or performance
of
(a) a power, duty or
function conferred by or under this Act, or
(b) a power, duty or
function on behalf of or under the direction of a person on whom the power,
duty or function is conferred by or under this Act.
[25] At trial, the Ministry argued that the decisions made with regard to
the respondent were made in good faith and that, by reason of s. 101 of the CFCSA,
neither the social workers nor the Ministry ought to be held liable for any
errors in judgment that may have been made.
[26] There is no dispute that the Crown is immune from liability where it
exercises its statutory discretion with "due care": Home
Office v. Dorset Yacht Co. Ltd., [1970] 2 All E.R. 294 at
300-01 (H.L.) per Lord Reid:
... there is very
good authority for 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. In Geddis
v. Proprietors of Bann Reservoir [(1878) 3 App Cas 430 at 455, 456] Lord Blackburn
said:
'For I take it,
without citing cases, that it is now thoroughly well established that no action
will lie for doing that which the legislature has authorized, if it be done
without negligence, although it does occasion damage to anyone; but an action
does lie for doing that which the legislature has authorized, if it be done
negligently.'
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 be 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.
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 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 abuse or excess of his power. Parliament cannot be supposed to have
granted immunity to persons who do that.
* * *
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.
[Underlining added.]
[27] In MacAlpine v. H.(T.) 1991 CanLII 5722 (BC C.A.), (1991), 57 B.C.L.R. (2d) 1
(C.A.), this Court considered the effect of a provision similar to s. 101
of the CFCSA. In that case, the Ministry relied on s. 23 of
the Family and Child Service Act, S.B.C. 1980, c. 11
which 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 this Act". Mr. Justice Macfarlane, giving judgment for the
majority, said this, at para. 34:
In my opinion
the duty of the superintendent, and those delegated to exercise the duties of
the superintendent, is to honestly consider the facts he knew or ought to have
known before he makes his decision: "i.e., believing in facts which, if
true, would have justified what he did" (per Kellock J., Chaput v.
Romain, [1955 CanLII 74 (S.C.C.), [1955] S.C.R. 834], p. 859).
[28] Having determined that the social workers in that case held an
honest belief that the placement at issue was a suitable one, and that they had
no knowledge, nor was there any evidence that they ought to have known that the
placement was not a suitable one, Macfarlane J.A. held, at para. 38, that, "There
is nothing in the judgment below, or in the facts as I know them, that would
lead me to conclude that there was a lack of good faith on the part of the superintendent
or his staff." In the course of his judgment, Macfarlane J.A. made the
following helpful observations, at para. 37, to which the trial judge in this
case referred:
I pause to observe that in order to have
an honest belief in that fact the social workers should have informed
themselves as to his background. ... There is no evidence that they were put
on inquiry (in the sense referred to in Black's Law Dictionary) with
respect to matters which may have affected their decision.... If they had
been put on inquiry, I do not think it could be said that they acted with an
honest belief that the placement was suitable.
[Underlining added.]
[29] The trial judge, relying on the discussion of good faith in the
majority judgment in MacAlpine v. H.(T.), supra, concluded
that the social worker's failure to inform herself of the information necessary
to make what was tantamount to a placement decision regarding a very disturbed
and vulnerable young person precluded a finding that the worker acted with an
honest belief that the "placement" was suitable.
[30] The appellant states in its factum that the trial judge concluded
that the Ministry social worker was negligent:
52. ... in
failing to apply to court for a supervision order when the Respondent went to
live with her natural father. In the trial judge's view, the decision by the
social worker to withdraw from care without applying for on-going supervision
amounted to an exercise of statutory discretion committed in bad faith.
[31] The appellant argues that in imposing liability, the trial judge
failed to conduct any detailed analysis of the CFCSA, or even to
identify the precise nature of supervision to which the respondent should have
been subject. The appellant points out that under s. 48 of the CFCSA,
the Ministry, in the event of changed circumstances, may return a child to the
parent entitled to custody, and withdraw from the protection proceeding.
[32] The appellant argues that a fundamental premise of the CFCSA
is that a child should, wherever possible, be in the care of the natural
parents. Any interference with the family unit that is proposed by the
Ministry, whether it be in the form of an application for apprehension or
supervision, is subject to the jurisdiction of a Provincial Court judge and
must be justified on the basis of evidence that the child is in need of
protection. In the appellant's submission, the trial judge's approach to
liability in the present case undermines legislative objectives and
misconstrues the good faith standard by which child protection decisions are
measured in tort.
[33] The appellant submits that the good faith standard recognizes the
judgment inherent in the choices facing public officials such as social workers
in exercising statutory discretion and the often conflicting policy
considerations at play. The appellant contends that, in the present case, an
important policy consideration is the legislative objective of placing or
supporting children in care with their natural families whenever possible.
[34] It is essential to recognize that the appellant's argument on the
good faith issue rests upon its characterization of the nature of the Ministry's
withdrawal from the proceeding under s. 48 of the CFCSA. That
section provides:
48 (1) At any time after the presentation hearing, a director may
return a child to the parent apparently entitled to custody and withdraw from a
proceeding if 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.
(2) A
director who withdraws from a proceeding must present to the court a written
report on the director's reasons for returning the child.
(3) When a director
withdraws from a proceeding, the proceeding ends without an order being made.
[35] The appellant characterizes its withdrawal from the proceeding as the
return of the respondent to the care of her natural parents. The appellant
then goes on to argue that the trial judge ignored the legislative objective of
placing or supporting children in care with their natural families whenever
possible when he found an absence of good faith in the Ministry's decision to
withdraw. The appellant contends that the effect of the trial judge's finding
is to create a presumption of interference with the natural family in the form
of ongoing supervision.
[36] The characterization the Ministry has placed on its withdrawal does
not accord with the facts found by the trial judge. Quite simply, it is not a
proper characterization of the withdrawal.
[37] The appellant's argument in the court below was not that the
Ministry was returning the respondent to the care of Mr. G., her natural
parent; instead, the argument was that, by virtue of an alleged agreement
between Mr. and Mrs. H. and Mr. G., the respondent was said to have been
returned to the care of her natural parents. The appellant conceded before us
that there had been no agreement between Mr. and Mrs. H. and Mr. G. regarding
joint custody or about the respondent living with Mr. G.
[38] The trial judge found that the respondent's being sent to Mr. G.'s
home was a de facto placement by the Ministry. Almost immediately
thereafter, the Ministry withdrew from the proceeding and the hearing to extend
the three-month temporary custody order did not go ahead.
[39] The appellant cannot avoid the integral role the placement of the
respondent in Mr. G.'s home played in the Ministry's decision to withdraw. The
social worker's decision to return the respondent to the care of her "natural
parents" was entirely contingent upon the fact that physical custody of
the respondent would not be in the hands of Mr. and Mrs. H., but instead, Mr.
G.
[40] The trial judge properly framed the matter of the withdrawal from
the proceeding as having two aspects: the problems in the H. home and the safety
of the G. home for the respondent. The crux of the trial judge's
decision on the good faith issue focuses on the latter aspect, as appears in
paras. 143-147 of his decision:
143 In my view, it cannot be said that Ms.
Boughen formed the "honest belief" that the G. home was safe and
suitable for C.H. Rather, her decision to send C.H. to Maple Ridge and to
withdraw appears to have been made with little regard to the safety of Mr. G.'s
home. The following extract from Ms. Hemminger's examination of Ms. Boughen
demonstrates this point: ...
144 It is apparent from Ms. Boughen's
testimony that her view of the matter was that the problem was located in the
H. home and that because C.H. was not returning to that home, there was no
cause for concern. That, of course, is only half the equation. Placing C.H.
in Mr. G.'s home may have removed the problem concerning the tension and
violence in the H. home, but the Ministry was still under an obligation to
ensure that Mr. G.'s home was suitable as well.
145 On the evidence before me, I find that Ms.
Boughen did not sufficiently inform herself of the information necessary to
make an honest, good faith decision as to the suitability of Mr. G.'s home.
Moreover, having been put on inquiry with regard to several potential problems,
she failed to take those factors into account in any meaningful way in deciding
to withdraw without retaining some mechanism of supervision. Thus, she cannot
be said to have "honestly consider[ed] the facts [she] knew or ought to
have known." In the result, I find that the Ministry is liable for the
negligent acts of its social workers and that those workers cannot avail
themselves of the good faith defence in s. 101 of the CFCSA.
146 The same result obtains when the matter is
analyzed under the common law principle from Home Office v. Dorset Yacht Co.
Ltd., [1970] 2 All E.R. 294 (U.K. H.L.), that the Crown is immune from
liability where it exercises its statutory discretion with "due care".
In G.(A.) v. British Columbia (Superintendent of Family & Child
Services) 1989 CanLII 233 (BC C.A.), (1989), 61 D.L.R. (4th) 136 (B.C.C.A.), at 149, Esson J.A.
explained the principle as follows:
... 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.
147 In my view,
the evidence establishes a failure by Ms. Boughen to genuinely consider the
issue of C.H.'s safety in the home of Mr. G. Her decision to end all Ministry
involvement in C.H.'s care was, in the circumstances, so unreasonable as to
demonstrate a failure to carry out her duty to consider the matter.
[41] The trial judge was unable to find that the decision to withdraw
without supervision was made in good faith because the decision was not made
with any meaningful regard for the safety of the G. home for the respondent.
Ms. Boughen did not meet her duty to consider the question of the respondent's
safety, and thus such consideration did not underlie her decision to withdraw.
[42] The appellant also put forward in its factum a general argument to
the effect that in previous cases no liability has been imposed even where
social workers were found to have made "significant errors in judgment".
However, this argument misses the fundamental point that distinguishes this
case from those cited. In MacAlpine v. H.(T.), supra, B.D.
v. British Columbia (Superintendent of Family and Child Service), infra,
and A.G. v. British Columbia (Superintendent of Family & Child
Service), infra, "good faith" or "due care"
was established, despite errors in judgment, whereas in this case, the
appellant did not establish that the errors in judgment made by Ms. Boughen
were made in good faith. To simply say that there is immunity from liability
for errors in judgment if they are made in good faith does not diminish
the trial judge's finding that Ms. Boughen's errors in judgment were not
made in good faith.
[43] A.G. v. British Columbia (Superintendent of Family & Child
Service) 1989 CanLII 233 (BC C.A.), (1989), 38 B.C.L.R. (2d) 215 (C.A.)
was an appeal from the dismissal of an action against the Superintendent of Family
and Child Service for wrongly apprehending seven children based on allegations
of abuse by their father. Mr. Justice Esson concluded that errors in judgment
had been made but held that there was no basis for imposing liability because
the due care standard in Dorset Yacht was met. He
interpreted that standard, based on Lord Reid's discussion at 301, as follows
at p. 227:
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.
In this case, it is alleged against the
defendants that they failed to follow instructions. If there was such a
failure, it was not at all of the kind which was held to be a basis for
liability in Dorset Yacht. The instructions and policy directions with
respect to apprehension are necessarily general rather than specific. On the
whole, they were complied with. The social workers did not fail to carry out
their duty to consider the matter; nor did they reach a conclusion so unreasonable
as to show failure to do their duty.
[Underlining added.]
[44] Having concluded that there was no basis for liability, Mr. Justice
Esson held it was unnecessary to decide what the effect of s. 23 of the Family
and Child Service Act, S.B.C. 1980, c. 11, would be if there were
otherwise a basis for liability. In obiter regarding s. 23, the
precursor to s. 101 of the CFCSA, Esson J.A. said this at p. 230:
The most concise statement of what is meant by "good
faith" in a provision such as s. 23 is, I think, that in the judgment of
Kellock J. [Chaput v. Romain, 1955 CanLII 74 (S.C.C.), [1955] S.C.R. 834, 1 D.L.R. (2d) 241]
whose analysis was accepted and applied by the Court of Appeal of Saskatchewan
in Lang v. Burch [reflex, [1983] 1 W.W.R. 55, 140 D.L.R. (3d) 325, 18 Sask. R.
99 (C.A.)]. At p. 261 (D.L.R.) Kellock J. said:
What is
required in order to bring a defendant within the terms of such a statute as
this is a bona fide belief in the existence of a state of facts which,
had they existed, would have justified him in acting as he did. This rule was
laid down in Hermann v. Seneschal (1862), 13 C.B. N.S. 392 at p. 402,
143 E.R. 156.
The contrast is with an act of such a
nature that it is wholly wide of any statutory or public duty, i.e., wholly
unauthorized and where there exists no colour for supposing that it could have
been an authorized one. In such a case there can be no question of good faith
or honest motive.
[45] B.D. v. British Columbia (Superintendent of Family and Child Service) (1997), 30 B.C.L.R. (3d) 201 (C.A.) was an appeal from a judgment
awarding damages to the infant plaintiff and her mother for physical and sexual
abuse suffered by the infant at the hands of a foster child in the mother's
care about whom not all relevant information had been disclosed to the mother
by the Ministry. In that case, Donald J.A. said at para. 30 that, assuming
that there had been a mistake and assuming negligence, he was nonetheless not
prepared to hold that the nature of the mistake deprived the defendants of
statutory immunity under s. 23 of the Family and Child Service Act.
He said this at paras. 40-41:
I have said that the finding of bad faith
was contrary to authority. The theme running through the important cases in
this area is the difficulty facing those who work with disturbed children. Decisions
have to be made about care when the outcome is unpredictable. It is too easy
to say when things turn out badly that it was the fault of the person who made
the judgment. Social workers should not be so afraid of making a mistake that
they cannot do their job properly.
The statutory
immunity is intended to protect workers in the field so their judgments will be
focused on child welfare and not their exposure to liability.
[46] Mr. Justice Donald went on to say, at para. 48:
I take from
these various judicial opinions a recognition that decisions relating to child
welfare are inherently difficult and that liability cannot be founded on
errors of judgment made in good faith. In the instant case I have found no
basis in the evidence for inferring bad faith on the part of Mr. Singh.
It was a matter of judgment whether the D. house was a suitable placement. Similarly,
the fullness of disclosure of J.F.'s background was also a matter of judgment.
The evidence will not reasonably support the finding that Mr. Singh
exercised his judgment without turning his mind to the safety of S. I would
allow the appeal from the finding of liability.
[Underlining added.]
[47] In my opinion, MacAlpine, B.D. and A.G. do
not assist the appellant because, in each of those cases, findings of due care
or good faith were made. That was not the case here.
[48] Another argument put forward by the appellant is that the trial
judge erred in "assuming" that it was within the Ministry's power to "provide"
for supervision of the G. home, since the Ministry would have had to seek a
supervision order from the court to do so. However, this argument also misses
the point of the fundamental finding at para. 145 of the trial judge's reasons
that:
... Ms. Boughen
did not sufficiently inform herself of the information necessary to make an
honest, good faith decision as to the suitability of Mr. G.'s home. Moreover,
having been put on inquiry with regard to several potential problems, she
failed to take those factors into account in any meaningful way in deciding to
withdraw without retaining some mechanism of supervision.
[49] In summary, I am of the view that none of the appellant's arguments
avoids the foundation of Mr. Justice Owen-Flood's finding of an absence of good
faith: that Ms. Boughen did not sufficiently inform herself to properly
exercise her discretion in deciding to withdraw and leave the respondent in the
care of Mr. G. Contrary to the appellant's submissions, the trial judge's
decision does not misconstrue, attack or undermine the policy or effect of s.
101 of the CFCSA or the common law jurisprudence on good faith;
instead, the decision rests narrowly upon the omission of a social worker who
had, incidentally, been "put on notice" to inquire into the safety of
a placement for a ward of the Ministry before withdrawing completely from the
proceeding. The finding of an absence of good faith was not about Ms. Boughen
being wrong, but about her not properly turning her mind to a question she had
a duty to answer.
(ii) Did the trial judge err in imposing on the Director (and his
delegates), as statutory guardian, a standard of care that exceeds that
applicable to a natural parent?
[50] The trial judge held that the Ministry, having apprehended a
vulnerable 15-year-old girl, owed her a duty of care to exercise "special
diligence" with regard to her safety and well-being, and that duty
extended to the Ministry's decision to withdraw from the proceeding. Relying
on this Court's decision in K.L.B. v. British Columbia 2001 BCCA 221 (CanLII), (2001),
87 B.C.L.R. (3d) 52 (C.A.), 2001 BCCA 221, aff'd 2003 SCC 51 (CanLII), [2003] 2 S.C.R. 403, the trial
judge held that a "special diligence" standard of care applies in
relation to children in care.
[51] The trial judge concluded that once the Ministry had assumed the
role of guardian, it had to exercise special diligence in granting custody to
anyone, whether by foster placement or by returning the child to a parent. He
considered the crux of the case to be whether the Ministry had breached this
standard of care in deciding to send the respondent to live with Mr. G. and to
withdraw from the proceedings without any supervision in place.
[52] The trial judge held that the Ministry could only be liable for
damages suffered by the respondent if those damages were the result of
negligence committed by the Ministry at a time when it owed the respondent a
duty of care. He concluded that if the Ministry had properly and without
negligence withdrawn from the proceeding, it would no longer be in the role of
guardian, and the proximity upon which the duty of care had once rested would
no longer be present, and no ongoing duty of care and supervision would
persist.
[53] For guidance in determining the character of the appropriate
standard of care, the trial judge considered the provisions of the CFCSA
and policies in place in November 1996 pertaining to the placement of a child
in the home of a relative as well as those relating to placing a child in the
custody of a non-parent. In both instances, a home study was required and, in
the latter, criminal record checks were required for all adults living in the
home.
[54] The trial judge also took into consideration the provisions
governing the Ministry's withdrawal from protection proceeding which require
that the Ministry first determine that the child is not in need of the Ministry's
protection. In that regard, the trial judge made reference to s. 48 of the CFCSA
set out above.
[55] The trial judge found that the Ministry breached the standard of
care it owed the respondent in two ways: (1) by failing to conduct an adequate
inquiry into the G. home at the time the respondent went to live with Mr. G.
and when it became apparent that she would remain there, and (2) by withdrawing
from care without providing for any sort of supervision of the G. home.
[56] The trial judge found that the investigation of the G. home fell far
short of the Ministry's obligation to make sure that the respondent's new home
was appropriate in what was tantamount to a placement. Minimal investigative
measures were taken. Despite Ms. Boughen's request for a home study, none was
done. Her criminal record check of Mr. G. was unofficial, and thus she could
not be certain that it was thorough. Moreover, she made no check of the other
adults in the house, including Mrs. G.'s 20-year-old son.
[57] The trial judge held that the prerequisite for the Director
withdrawing from a proceeding under s. 48 of the CFCSA is a
determination that the child is not in need of the Ministry's protection. It
was the trial judge's conclusion, which was well-supported by the evidence,
that the respondent was still very much in need of protection when the Ministry
worker decided to send the respondent to live with her biological father, whom
she scarcely knew, without supervision, and to withdraw from her care.
[58] The trial judge found that given the information known to the
Ministry concerning Mr. G. and the volatile state of the respondent, and the
minimal investigation into the G. home, its decision to withdraw did not meet
its duty of special diligence. It was the view of the trial judge that it
should have been readily apparent that it was not appropriate to withdraw
completely from the care of an extremely troubled teenager, leaving her in the
hands of a man who was a stranger to her, apart from a one-month visit that
ended poorly, and about whom the Ministry had scant information, most of it
negative.
[59] The trial judge did not hold that the decision to let the respondent
attempt to live with Mr. G. was in itself negligent. He recognized that, in
the circumstances, which were somewhat desperate, having the respondent live
with Mr. G. may have been worth a try. However, the trial judge was of the
view that it was entirely unreasonable for the Ministry to withdraw completely
from the care of the respondent only a short time later. The circumstances
known to the Ministry "cried out for supervision".
[60] As noted earlier, the trial judge further held that there was no
agreement between Mrs. and Mr. H. and Mr. G. regarding the respondent, and that
it was the Ministry which was responsible for sending the respondent to live
with Mr. G. He regarded Ms. Boughen's evidence to the contrary as being
inconsistent with the fact that she knew Mrs. H. was unwilling to relinquish
custody to Mr. G., as well as Ms. Boughen's own e-mail of the day before the respondent
was sent to Mr. G., in which she wrote that Mr. G. was planning to apply for
custody under the Family Relations Act. In her testimony
at trial, Ms. Boughen conceded there would be no need for such an application
if the parties were working out a private arrangement.
[61] The trial judge observed that even if Mr. and Mrs. H. had come to
some sort of private agreement with Mr. G., such an agreement would not absolve
the Ministry of its duty to ensure that Mr. G.'s home was safe. Section
48(1)(a) of the CFCSA permits the Ministry to withdraw pursuant
to an agreement with the parents only where the Minister is satisfied that the
agreement is adequate to protect the child. The Minister is neither obliged
nor entitled to simply defer to the judgment of the parents.
[62] Relying on K.L.B. v. British Columbia, 2003 SCC 51 (CanLII), [2003] 2 S.C.R.
403, 2003 SCC 51, decided after the trial judge's reasons were released in this
case, the appellant argues that the applicable standard of care is not one of "special
diligence" but that of a "careful parent". In K.L.B., the Supreme Court of Canada considered an
appeal from a decision of this Court in which the foundation for liability for
abuse suffered by the appellants in two successive foster homes was at issue.
Under the heading "Direct Negligence by the Government", McLachlin
C.J.C. considered the issue of whether there was any legal basis on which the
government could be held liable for the harm the appellants had suffered in
foster care:
12 This ground of liability requires a finding that the
government itself was negligent. Direct negligence, when applied to legal
persons such as bodies created by statute, turns on the wrongful actions of
those who can be treated as the principal organs of that legal person. Both
courts below held that the government had a duty under the Protection of
Children Act, R.S.B.C. 1960, c. 303, to place children in adequate
foster homes and to supervise their stay, and that this duty had been breached.
13 These unchallenged findings are fully supported on the
record. Before turning to this, however, it is worth noting that the private
nature of the abuse may heighten the difficulty of proving the abuse and its
connection to the government's conduct in placement and supervision. As in
other areas of negligence law, judges should assess causation using what
Sopinka J., citing Lord Bridge in Wilsher v. Essex Area Health
Authority, [1988] 2 W.L.R. 557 (H.L.), at p. 569, referred to as a "robust
and pragmatic approach" (Snell v. Farrell, 1990 CanLII 70 (S.C.C.), [1990] 2 S.C.R. 311, at p. 330.
As Sopinka J. emphasized, "[c]ausation need not be determined [with]
scientific precision" (Snell, at p. 328). A common sense
approach sensitive to the realities of the situation suffices.
14 Turning first to the duty of care, the Act stipulates, in
s. 8(12), that the Superintendent of Child Welfare must make such arrangements
for the placement of a child in a foster home "as will best meet the needs
of the child". (The relevant legislative provisions are reproduced in the
Appendix.) This imposes a high standard of care. In most contexts, the law
of negligence requires reasonable care, not perfection: Challand v. Bell
(1959), 18 D.L.R. (2d) 150 (Alta. S.C.); Ali v. Sydney Mitchell & Co.,
[1980] A.C. 198 (H.L.). In the case of those exercising a form of control
over a child comparable to that of a parent, however, the law imposes a
heightened degree of attentiveness. The "careful parent test" imposes
the standard of a prudent parent solicitous for the welfare of his or her child
(Durham v. Public School Board of Township School Area of North Oxford
(1960), 23 D.L.R. (2d) 711 (Ont. C.A.), at p. 717; McKay v. Board of Govan
School Unit No. 29 of Saskatchewan, 1968 CanLII 76 (S.C.C.), [1968] S.C.R. 589; Myers v. Peel
County Board of Education, 1981 CanLII 27 (S.C.C.), [1981] 2 S.C.R. 21). This is the test that
governs the placement and supervision of children in foster care under the Protection
of Children Act. It does not make the government a guarantor against all
harm. But it holds it responsible for harm sustained by children in foster
care, when, judged by the standards of the day, it was reasonably foreseeable
that the government's conduct would expose these children to harm of the sort
that they sustained.
15 It is reasonably foreseeable
that some people, if left in charge of children in difficult or overcrowded
circumstances, will use excessive physical and verbal discipline. It is also
reasonably foreseeable that some people will take advantage of the complete
dependence of children in their care, and will sexually abuse them. To lessen
the likelihood that either form of abuse will occur, the government must set up
adequate procedures to screen prospective foster parents. And it must monitor
homes so that any abuse that does occur can be promptly detected.
[Underlining added.]
[63] While the trial judge characterized the applicable standard of care
in this case as one of "special diligence", I am of the view that the
effect of the standard he applied does not differ in substance from the
standard articulated in K.L.B., that is, "the
standard of a prudent parent solicitous for the welfare of his or her child".
[64] I would
not accede to the appellant's argument that the judgment ought to be reversed
on the ground that a higher standard of care was applied than the decision in K.L.B.
would support.
(iii) Did the trial judge err in imposing liability for the Ministry's
failure to "maintain supervision" over the Respondent when
supervision was only available at the discretion of a Provincial Court judge?
[65] The appellant's arguments under this ground of appeal proceed on the
premise that the respondent was being returned to a natural parent. When the
facts found by the trial judge are considered, I am of the view that this
ground of appeal cannot succeed.
[66] The foundation for the Ministry's withdrawal from the protection
proceeding simply did not square with the facts. As the trial judge pointed
out in his reasons, a supervision order could have been sought under the
provisions of the CFCSA, even if the Ministry decided to
withdraw. In view of the facts found by the trial judge about what was known
about the respondent's behaviour and vulnerabilities and what was known about
Mr. G. and his likely capacity to cope with the problems of a teenager to whom
he was close to a stranger, there is little wonder that the trial judge found
that the circumstances "cried out for supervision".
(iv) Did the trial judge err in his approach to causation in this
case in finding a causative link between the lack of on-going supervision and
the abuse without any express finding as to what form supervision would have
taken, and despite an express finding that supervision would not have revealed
the abuse?
[67] The arguments advanced under this ground of appeal are couched in
terms of errors in principle in the application of the provisions of the CFCSA
but the arguments are also answered by the findings of fact made by the trial
judge and the inferences he drew from those facts. As I have already referred
to the judge's findings and conclusions in regard to supervision, there is no need
to repeat them here.
[68] Taking a "robust and pragmatic approach to the facts" (Wilsher
v. Essex Area Health Authority, [1988] 2 W.L.R. 557 at 569 (U.K.
H.L.)), the trial judge found that the Ministry's negligence in not providing
supervision materially contributed to the abuse: Athey v. Leonati,
1996 CanLII 183 (S.C.C.), [1996] 3 S.C.R. 458; and Myers (Next friend of) v. Peel County Board of
Education, 1981 CanLII 27 (S.C.C.), [1981] 2 S.C.R. 21.
[69] The trial judge found that supervision would likely have prevented
circumstances that were material contributing factors to the abuse,
specifically, that Mr. G. was aware that his care of and relationship with the
respondent was wholly unsupervised; that everyone in the household, including
the respondent, was smoking marijuana on a daily basis; and that rather than
being at school and engaged in other peer-related activities, the respondent
became isolated and was spending all her time with Mr. G.
[70] In my respectful view, there is no proper basis upon which this Court
could interfere with the judge's conclusions on the causation issue.
V. Summary and
conclusion
[71] Based on the facts the trial judge found which the appellant does
not challenge, I am of the view that the trial judge did not err in principle
when he rejected the argument that under s. 101 of the CFCSA the
Ministry and its social workers were immune from liability. I am also of the
view that the trial judge did not err by applying a standard of care that is
more onerous than the one articulated by the Supreme Court of Canada in K.L.B.,
nor am I persuaded that the trial judge was in error in finding a breach of the
standard
of care or in finding a causative link
between the Ministry's breach and the harm occasioned to the respondent.
[72] I would dismiss the appeal.
“The Honourable Madam Justice Rowles”
I agree:
“The Honourable Mr. Justice Hollinrake”
I agree:
“The Honourable Mr. Justice Oppal”
PDF Format
reflex
—
140 D.L.R. (3d) 325 •
[1983] 1 W.W.R. 55
