Indexed as:
D.B. v. Children’s Aid Society of Durham Region
Between
B.(D.) and B.(R.) and B.(M.) both latter plaintiffs being under the age of 18 years of age by their Litigation guardian W.(G.), plaintiffs/respondents, and
Children’s Aid Society of Durham Region and Marion Van Den Boomen, defendants/appellants
[1996] O.J. No. 2502
136 D.L.R. (4th) 297
92 O.A.C. 60
30 C.C.L.T. (2d) 310
64 A.C.W.S. (3d) 340
1996 CanLII 1067 No. C18407
Ontario Court of Appeal Toronto, Ontario
Austin, Laskin and Moldaver JJ.A.
Heard: May 23, 1996.
Judgment: July 9, 1996.
(18 pp.)
Torts — Negligence — Standard of care, particular persons and relationships — Social workers — Children’s Aid Society — Damages — General damages — Legal fees and expenses — Out-of-pocket expenses.
Appeal by the defendants from a finding of negligence. DB was an Anglican minister who was accused by his wife of sexually abusing their two adopted daughters. DB was cleared of all allegations of sexual abuse and was awarded sole custody of the children. The children’s Aid Society was ordered to pay his costs as it’s conduct was unfair and indefensible. DB’s action against the Society and the caseworker for negligence was allowed and he was awarded $110,000 for general and punitive damages and out-of-pocket expenses. The defendants appealed.
HELD: Appeal as to liability was dismissed. Appeal as to damages allowed and damages reduced by $25,000. The caseworker who first handled the case was negligent in the performance of her statutory duties and her conduct fell below the standard of care expected of a professional social worker. She failed to follow up with the children’s doctor, failed to interview DB early in the process, failed to follow up with the police, failed to consider the improbability of the allegations and motivation of the mother in the case and, being bias, failed to conduct a fair and balanced investigation. When a second caseworker took the file and discovered the errors made, the Society changed its opinion. However, it continued with the trial, not because the children needed protection but because DB refused to waive his legal costs if the Society dropped the protection proceedings. Such conduct constituted negligence and lack of good faith in the performance of their statutory duties. The $50,000 allowed for legal fees was reduced to $25,000. DB was awarded solicitor and client costs at the protection hearing which he settled for $60,000 and this settlement should not be revisited. The Society was not responsible for costs claimed which arose out of custody and divorce proceedings.
Statutes, Regulations and Rules Cited:
Child and Family Services Act, R.S.O. 1990, c. C.11, s. 15(6). Child Welfare Act, R.S.O. 1980, c. 66, ss. 6(2), 21(1)(b).
Counsel: J.S. McNeil, Q.C., for the appellants. Donald J. Catalano, Q.C. and David J. Feliciant, for the respondents.
The following judgment was delivered by
1 THE COURT:– The Durham Children’s Aid Society (“the Society”) and Marion Van Den Boomen (the defendants) appeal from the judgment of Somers J. dated March 23, 1994, in which the plaintiff D.B. was awarded $110,219.60 in damages and the infant plaintiffs R. and M. were collectively awarded $1,500.00 in damages, together with interest and solicitor and client costs. The defendants appeal from the finding of liability and the award of damages.
Brief Summary of Facts
2 D.B. is an Anglican minister. He and S.B., his ex-wife, have two adopted daughters, R. and M. D.B. and S.B. had been married for nine years and were living in Manitouwadge when their marriage broke down. In late April 1985, while D.B. was out of town for the weekend, S.B. took the children and moved to Thunder Bay. R. was 4 years old at the time and M. was 18 months old. S.B. later moved with the children to the Oshawa area. The couple divorced in June 1987.
3 The Society received a phone call on June 26, 1985 from Dr. Wright, a physician, who reported that S.B. had brought M. to him because she suspected D.B. of having sexually abused the child. In particular, S.B. was concerned about the length of time D.B. took to diaper M. She said that R. had also seen D.B. diaper the baby, and R. thought that “Daddy touched M. too long” when he applied cream to M.’s vaginal area to treat an infection. Dr. Wright was a friend of S.B.’s parents and knew S.B., although he was not her family doctor at the time. He examined M. and then referred her to Dr. Ort, a paediatrician at the same clinic. Both doctors found no physical signs of sexual abuse although each noted that M. had a slightly enlarged vaginal opening.
4 The defendant Van Den Boomen was the in-take CAS worker handling the case. She interviewed S.B. and R. on June 27, 1985 and received details of the alleged sexual abuse. In the course of the interview, she also learned that D.B. and S.B. were in the middle of an ongoing custody dispute; S.B. had an interim custody order that required her to take the girls to Manitouwadge every second weekend, at her own expense, for unsupervised access with their father. The next visit was to take place on July 6th and 7th.
5 On June 28th, the Society decided to seek an interim protection order in the Provincial Court (Family Division) limiting D.B.’s access to one-hour supervised visits at the Society’s office. The application was heard by His Honour Judge Donald on July 5th. In granting the order, Judge Donald noted that the application was “on consent.” This was not the case. Although S.B. had been served with the notice of application, D.B. had not. Van Den Boomen defended the decision not to notify D.B. on the grounds that the police had not yet interviewed him, and that protocol required the Society to maintain the element of surprise when investigating allegations of sexual abuse. As it turned out, D.B. was never interviewed by the police.
6 On July 9th, D.B. drove to Oshawa with his solicitor and met with Van Den Boomen. Apparently this meeting was not an interview per se, but D.B. gave his version of the events. He raised his own concerns that S.B. had hit R. and that a man he believed to be S.B.’s live-in boyfriend after the separation had sexually molested M. The Children’s Aid Society in Thunder Bay had previously investigated this other man, F.R., concerning alleged abuse of the two children.
7 While the interim protection order remained in effect, D.B. visited his daughters under the supervision of Van Den Boomen and the Society. Van Den Boomen continued to work on the case until August 9, 1985, when she went on maternity leave and transferred the file to a co-worker, Malcolm MacFarland.
8 The matter proceeded to a full child-protection and custody proceeding before His Honour Judge Dunn of the Provincial Court (Family Division). The hearing began on October 16, 1985 and did not end until almost one year later, on October 7, 1986. On May 21, 1986, the sixteenth day of what would be a 51-day hearing (31 days of which were devoted to child welfare matters), MacFarland told D.B. that it looked as if the Society had “backed the wrong horse” and that he was now satisfied that D.B. had not abused the girls. According to D.B., MacFarland offered to drop the protection proceedings on the condition that D.B. would waive his legal costs. D.B. refused. The Society made a formal settlement offer along the same lines on August 26, 1986 — the Society would withdraw the protection application if D.B. would agree to bear his own legal costs. Once again, D.B. refused. He had borrowed substantial sums of money from his brother-in-law to pay for his lawyer and he was not prepared to forego those costs.
9 In his reasons for judgment released on January 13, 1987, Judge Dunn dismissed the child-protection application and cleared D.B. of all allegations of sexual abuse. He also awarded sole custody of the children to D.B. In respect of costs, Judge Dunn ordered the Society to pay D.B.’s costs on a solicitor and client scale for the child welfare portion of the hearing. In his reasons, now reported at (1987), 20 C.P.C. (2d) 61, Judge Dunn found the Society’s conduct to be unfair and indefensible. The costs order at pp. 79-80 specifically sets out the dates on which the protection hearing should be assessed as full days, and the dates which should be assessed as half days. The order also reimbursed D.B. for certain disbursements but excluded others. Although the bill of costs submitted for taxation came to $91,044.84, the parties eventually settled costs at $60,000.00.
10 D.B. then brought an action against the defendants alleging negligence. He claimed damages for all of the expenses he incurred as a result of the Society’s investigation and the protection proceedings. The claim for pecuniary damages included the balance of legal fees beyond those recovered at the end of the protection proceeding.
Liability
11 The defendants were purporting to carry out their statutory duties under ss. 6(2) and 21(1)(b) of the Child Welfare Act, R.S.O. 1980, c. 66 when they commenced the investigation of D.B., and instituted child protection proceedings.
12 D.B. framed his action against the defendants in negligence. The defendants attack the finding of liability on two grounds:
* that the trial judge erred in finding that the defendants were negligent in the performance of their statutory duties prior to MacFarland’s offer to settle on May 21, 1986; and
* that, even if the defendants were negligent in performing their statutory duties, the trial judge erred in failing to limit the scope of their private law duty of care to the plaintiff D.B. so as to preclude mere negligence as a cause of action.
13 With respect to the first ground, the plaintiffs called Barbara Chisholm, an expert witness with impressive credentials in the field of social work. Chisholm gave extensive evidence on the standard of care expected of a professional social worker investigating cases of suspected child abuse. She also detailed her reasons for concluding that Van Den Boomen had been negligent in performing her duties and that her conduct had fallen below the standard of care expected of a professional social worker. The defendants did not challenge the admissibility of this evidence, nor did they seek to counter Chisholm’s testimony with expert evidence of their own.
14 The trial judge, as he was entitled, gave considerable weight to Chisholm’s testimony in concluding that Van Den Boomen had been negligent in the performance of her statutory duties. In his reasons, the trial judge carefully reviewed the manner in which Van Den Boomen carried out her investigation, and he found that her conduct fell well below the standard of care expected of a professional social worker, for the following reasons:
* She failed to follow-up with Dr. Wright and conduct a full and complete interview with him.
* She failed, in the particular circumstances of this case, to conduct a detailed interview with D.B. early in the process.
* She failed to follow-up with the police.
* She failed to have S.B. and the children interviewed by a police officer experienced in child abuse.
* She failed to properly record her interviews with S.B. and R.
* She failed to make timely and accurate notes.
* She failed to adequately consider the nature of the allegations against D.B. and their inherent improbability.
* She failed to consider the source of the allegations and the motivation behind them.
* Due to lack of training and experience, she was unable to keep an open mind and conduct a fair and balanced investigation.
* She was willing to allow S.B. to act as a co-investigator.
15 In our view, these findings are supported by the evidence. Accordingly, it was open to the trial judge to conclude that, in the particular circumstances of this case, Van Den Boomen was negligent in the performance of her statutory duties and her conduct fell below the standard of care expected of a professional social worker. It follows that the first ground of appeal must fail.
16 The second ground of appeal concerns the scope of the defendants’ liability to D.B. In particular, to what extent, if any, does a public authority such as the Children’s Aid Society owe a private law duty of care to an alleged perpetrator, arising from the performance of its statutory duties.
17 The defendants submit that the scope of any private law duty of care should be limited so as to reclude mere negligence as a cause of action. In support of this submission, they stress that children’s aid societies cannot necessarily be expected to discharge their statutory duties without negligence. In the interests of protecting children who may be at risk, societies are regularly required to act on incomplete or unverified information and they must make credibility assessments quickly. On occasion, unilateral and arbitrary decisions are necessary to safeguard the well-being of children. Conflicts may and often do arise, which pit the interests of the children against those of the alleged offender.
18 Since a society’s primary responsibility rests with the child, the defendants urge that the interests of the child must take precedence over those of the suspected abuser. Although a society may be liable at common law to a child in need of protection as a result of negligence in the performance of its statutory duties, the defendants submit that a coextensive duty of care is not owed to the alleged abuser.
19 In oral argument before us, counsel advised the court that this issue was not raised at trial. Accordingly, the trial judge proceeded on the basis that D.B. had properly framed his action in negligence, subject only to a statutory defence raised by the defendants. That defence rested on s. 15(6) of the Child and Family Services Act, R.S.O. 1990, c. C.11, which provides:
No action shall be instituted against an officer or employee of a society for an act done in good faith in the execution or intended execution of the person’s duty or for an alleged neglect or default in the execution in good faith of the person’s duty.
20 Section 15(6) was proclaimed in force on November 1, 1985, when the Child Welfare Act was repealed and replaced by the Child and Family Services Act (CFSA). By that time, as the trial judge observed, the Society had conducted its investigation, obtained an interim protection order and the trial before Judge Dunn had commenced. Nonetheless, the defendants sought to take advantage of the s. 15(6) “good faith” limitation on the ground that s. 15(6) had come into force well before the plaintiffs commenced their action in July 1987.
21 The trial judge rejected this submission. As a matter of law, he ruled that s. 15(6) had no application to the proceedings before him. Alternatively, he held that, even if the s. 15(6) “good faith” limitation did apply, it would be of no assistance to the defendants. The trial judge said:
Even if the limitation of liability section of the Child and Family Services Act were to be considered to be in force in the determination of this action, I am not satisfied that there was ‘execution in good faith’ of her duties by Ms. Van Den Boomen and subsequently by Mr. MacFarland in their dealings with the Plaintiff sufficient to obtain the protection afforded by this section.
22 In the course of his reasons, the trial judge made certain findings of fact which led him to conclude that the defendant Van Den Boomen had approached her statutory duties with a biased attitude towards D.B. In particular, the trial judge found that Van Den Boomen formed the opinion that D.B. was guilty of sexual abuse immediately after she interviewed S.B. and R. and that she closed her mind to any other possibility. This, in turn, led Van Den Boomen to:
* knowingly file a false and misleading affidavit in support of the application for the interim protection order;
* ensure by design that D.B. would not be notified of the interim protection proceeding;
* refrain from properly following up with Dr. Wright and conducting a full and complete interview with him;
* refrain from following up with the police;
* ignore evidence which should have raised serious concerns about S.B.’s conduct toward the children and her motivation for implicating D.B.;
* view D.B.’s conduct towards the children with hostility, cynicism and suspicion;
* turn a deaf ear to D.B.’s protestations of innocence and ignore information from him which should have led to further investigation; and
* prepare a report to MacFarland that portrayed D.B. as demonic and S.B. as a sympathetic victim of abuse.
23 Apart altogether from the findings of bias and lack of good faith attributable to Van Den Boomen, the trial judge also found as a fact that the defendant Society had changed its opinion about D.B. by the sixteenth day of the hearing and that the Society no longer considered him to be a threat to the children. Nonetheless, the Society forged ahead with the trial, not because the children required protection, but because D.B. refused to waive his legal costs. The trial judge described the Society’s conduct at this juncture as utterly unconscionable and indefensible.
24 In sum, the findings of the trial judge reveal an investigation tainted by bias and lack of good faith culminating in a course of conduct akin to malicious prosecution.
25 In our view, it was open to the trial judge to make the findings of fact which led to his conclusion that the defendants had exhibited bias, lack of good faith and eventually malice in the purported exercise of their statutory duties.
26 In oral argument before us, the defendants conceded that a combination of negligence and lack of good faith in the performance of their statutory duties would give rise to a common law cause of action against them. According to the defendants, s. 15(6) of the CFSA merely codified the limited duty of care the defendants owed to the plaintiff D.B. at common law.
27 In view of that concession, we find it unnecessary to decide whether the trial judge erred in failing to limit the defendants’ duty of care to the plaintiff D.B. so as to preclude mere negligence as a cause of action. The trial judge found both negligence and lack of good faith on the part of the defendants in the execution of their statutory duties. Accordingly, we see no basis for disturbing the finding of liability.
28 The defendants raised a further ground of appeal alleging undue intervention by the trial judge in his questioning of the defendant Van Den Boomen and one other defence witness. We did not call on the respondent to reply to this ground. The defendants did not raise this objection at trial and we are not persuaded that the trial judge exceeded the bounds of propriety in his questioning. This ground of appeal likewise fails.
Damages
29 The damages awarded by the trial judge may be summarized as follows:
To D.B.
General Damages – $35,000.00
Punitive Damages Out-of-Pocket Expenses – 10,000.00
– 75,219.60
To R.B. – 1,000.00
To M.B. – 500.00
30 No issue is taken with respect to the nominal damages awarded to the children. As to general and punitive damages, it was argued that S.B. had been the principal cause rather than the Society. S.B.’s involvement, however, was taken into account by the trial judge in assessing those damages.
31 The major attack was focused on the out-of-pocket expenses. D.B.’s claim as presented and allowed was as follows:
Item Claimed Allowed
Legal fees $142,520.91
plus interest less $60,000
in recovered costs $82,520.91 $50,000.00
Telephone 12,950.00 10,000.00
Air fare (8 flights from Manitouwadge to Toronto at $340.00 return
per flight) 2,720.00 2,000.00
Transportation to exercise access — 2,500 km from Manitouwadge to Oshawa. Two trips in each of July, August and September and one on October 5, 1985; 7 trips at $400.00 per trip including gas, food and hotel Lunch in Toronto during trial 2,800.00 2,100.00 $10.00 per day – $510.00, parking at $12.00 per day –
$612.00; gas and mileage to Toronto and back to Caledon $20.00 per day – $1,020
2,142.00 1,500.00
To reinstate lost pension 9,619.60 9,619.60
Total $112,752.51 $75,219.60
32 The largest out-of-pocket expense claimed was for legal costs. The plaintiff testified that his legal expenses totalled $142,520.91. The only documentary support for that figure was a letter from D.B.’s counsel to him dated October 6, 1986, which read as follows:
This will confirm that our total fees and disbursements in connection with your matter, from July 5, 1985, up to and including Friday, October 3, 1986, are as follows:
Total docketed fees: $129,925.00
Total disbursements 12,595.91
Total – $142,520.91
The plaintiff said he was unable to pay these costs and his brother-in-law gave evidence that he had paid them in full. No further information was given with respect to the aggregate sum of $142,520.91.
33 Against that amount, the plaintiff credited the sum of $60,000 received on the settlement of the costs of the protection proceedings. The 51-day hearing in the Provincial Court (Family Division) involved not only the protection application, but custody applications by both the plaintiff and his wife. The award of solicitor-and-client costs was limited to the protection proceedings which the trial judge specified took 25 full days and twelve half days. On the trial before Somers J., D.B.’s counsel produced a bill of costs in the Provincial Court (Family Division) totalling $91,044.84, of which $80,000 was for lawyers’ fees and the balance for disbursements. The fees were charged at the rate of $2,500 per day. This was the bill which was settled at $60,000.
34 In dealing with the plaintiff’s total claim of $112,752.51 for out-of-pocket expenses, the trial judge said: Many of these expenses were incurred because there was a 51 day trial in Toronto. Counsel for the Plaintiff has urged upon me that had the Society acted as it should have and contacted him or the father when the allegations were first raised the entire trial could have been avoided and proceedings gone about in a different way. While I think it likely that the trial could have been avoided I think there would have been some form of proceedings. This would have resulted in some cost not just for legal expenses but for parking and accommodation expenses in Toronto. I think it unlikely in the extreme that there would have been a 51 day custody trial in the Supreme Court. I think it equally unlikely that all of these expenses could have been avoided had the Society acted properly. It is my view that legal fees of $142,520.91 would not have been incurred. I allow for this item $50,000.
35 In making this allowance, the trial judge appears to have acted in error. The plaintiff was awarded solicitor-and-client costs for the protection hearing. He settled those costs at $60,000. No evidence was led to show why that settlement should be revisited. The application by the Society took approximately 31 days. The balance of the 51 days was taken up with the custody applications of husband and wife. The husband sought a cost order against his wife in the Provincial Court in this regard and was refused. No reason was advanced why the Society should be held liable for those costs. Part of the $142,520.41 would also be accounted for by the custody proceedings being prosecuted at the same time in the Supreme Court of Ontario at the instance of the husband. In addition, the wife had commenced a divorce petition with claims for custody, maintenance, support, a division of family assets, and equalization. Again, no reason was suggested why the Society should be responsible for that part of the plaintiff’s legal costs.
36 To summarize, no basis was established for allowing the plaintiff any part of the claim for $82,520.91.
37 One of the criticisms of the amount allowed for the other out-of-pocket expenses was that no bills, accounts or invoices were presented. The telephone claim was estimated. There were no receipted accounts for travel, meals or lodging. The trial judge was satisfied on the evidence of D.B. and his brother-in-law that a cost in the vicinity of $10,000 had been incurred and we see no error in this regard. Similarly, the travelling was undoubtedly done and comparable costs incurred.
38 In order to realize $6,400 to help cover his legal expenses, D.B. collapsed a pension fund. It would have cost him $16,019.60 to reinstate the pension. He claimed the difference, namely, $9,619.64. The trial judge acted appropriately in allowing it as a cost of raising money. Disposition
39 The appeal as to damages is allowed to the extent that the item of $50,000 for legal costs is struck out and the total of out-of-pocket expenses thereby reduced to $25,219.60. In all other respects the appeal is dismissed, in the circumstances, with costs.
AUSTIN J.A. LASKIN J.A. MOLDAVER J.A.
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