Syl Apps Revisited

Tomorrow, Friday, July 27, the Supreme Court of Canada (“SCC”) will be rendering judgment in Syl Apps Secure Treatment Centre v BD[2007] 3 SCR 83 [Syl Apps].

Syl Apps was first discussed here at The Court by Julian Ho in his May 3 post. The case involves a novel question of law which merits our refocused attention.

As some may recall, the Syl Apps case begins with R.D., a psychologically-troubled, 14 year old Ontario girl who wrote a short story at school, depicting her parents abusing her. The story eventually led child-welfare officials to investigate the situation. The officials concluded that R.D. had serious mental health issues and that wardship should be awarded to the Halton Region Children’s Aid Society in order to protect her from herself. No criminal charges were ever laid against the parents, who maintain that the short story was fictional.

Several months after being apprehended, R.D. was placed in the Syl Apps Secure Treatment Centre in Oakville, Ontario, where she received treatment from a number of individuals, including social worker, Douglas Baptiste. R.D. remained in the care of child welfare providers until the age of majority, at which time she did not return to her family.

Members of R.D.’s family, including her parents, siblings and grandparents, brought an action in October of 2004 maintaining that the Halton Children’s Aid Society, Syl Apps, two physicians and the social worker Baptiste had, among other things, been negligent in their dealings with the family. The family contended that while under the care of Syl Apps, R.D. was treated as a victim of child abuse when she had, in fact, never been abused. Such treatment, the plaintiffs maintain, has made it impossible to ever reintegrate R.D. back into the family unit.

The respondents, for their part, brought a motion to strike the claims against them on the basis that the claims contained no cause of action. They argued that they had not owed a duty of care to members of R.D.’s family, but solely to R.D. The motions judge found this to be the case, and dismissed the claims. In response to this decision, the plaintiffs narrowed their scope, appealing the dismissal against Syl Apps and Baptiste only.

In a dramatic 2-1 Ontario Court of Appeal (“ONCA”) judgment in 2006, the ONCA applied the test set out in Anns v Merton London Borough Council, [1978] AC 728 (HL), and concluded that Syl Apps may, in fact, “owe a duty to R.D.’s family that differs from the duty owed to R.D. and that these different duties would not necessarily conflict” (para 48). As such, Laskin J.A. reasoned:

Therefore, in my view, we should not be too quick to conclude that a service provider and its employees can never owe a duty of care to the family of a child in need of protection. Before deciding this important question, we should have the benefit of an evidentiary record. In my opinion, at the pleadings stage, it is not plain and obvious that the plaintiffs’ claim against Syl Apps and Baptiste in negligence must certainly fail (para 58).

However, in a strong dissenting opinion focused heavily on policy concerns, Sharpe J.A. suggested that recognizing that child welfare officials owe a duty of care to families presents real challenges to the very raison d’etre of child welfare programs:

The imposition of an additional duty of care to R.D.’s parents, from whose care she had been removed, and the consequent threat of a civil action, would conflict with the respondents’ primary duty to the child. To saddle them with an additional and potentially conflicting duty of care towards R.D.’s family would unduly interfere with their primary and paramount duty to look out for R.D.’s best interests (para 73).

Certainly, as we wait for tomorrow’s SCC decision, we can rest assured that policy considerations will continue to loom large.

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