Shaken baby case mcneill


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Shaken baby case mcneill

  1. 1. IN THE SUPREME COURT OF BRITISH COLUMBIACitation: L.C. & L.S. v. H.M.T.Q. et al, 2005 BCSC 1668 Date: 20051201 2005 BCSC 1668 (CanLII) Docket: S54706 Registry: New WestminsterBetween: L.C. & L.S. PlaintiffsAnd 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 JudgmentCounsel for the Plaintiffs K. MorrisonCounsel for the Defendant E.W. Lewis, N. BarnesDate and Place of Trial/Hearing: New Westminster, B.C. May 9, 10, 11, September 26, 27, 28, 29, 30, and October 3, 4, 5, 2005
  2. 2. L.C. & L.S. v. H.M.T.Q. et al Page 2[1] This case illustrates the difficulties inherent in child protection investigationswhere a parent steadfastly maintains her innocence and medical opinion suggestsher guilt. At issue is whether the Crown has any vicarious liability in negligence for 2005 BCSC 1668 (CanLII)acts done or not done by social workers employed by the Ministry of Children andFamilies, exercising delegated statutory authority in the course of such aninvestigation.[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 criticalcondition and was transferred to Children’s Hospital in Vancouver. The medicalexperts there formed the view that D.C.’s injuries were not accidental. The headpaediatrician contacted the Ministry, who removed D.C. and his two older siblingsfrom the home. Fortunately, D.C. recovered well enough to be discharged fromhospital about one month later. The Ministry placed him in the home of L.C.’smother, the plaintiff L.S.[3] The Ministry conducted an investigation. At the time the injury apparentlyoccurred, L.C. and her three-year-old son were at home with D.C. The experts atChildren’s Hospital were of the view that the injuries could not have been caused bya three-year-old and were most likely the result of severe shaking. L.C. has alwaysmaintained that she did not harm D.C. While not witnessed, she thought that thethree-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
  3. 3. L.C. & L.S. v. H.M.T.Q. et al Page 3continuing custody order for D.C. The matter went to trial and the judge made anorder returning D.C. to his parents.[5] L.C. and L.S. bring this action against the Ministry in negligence. They say 2005 BCSC 1668 (CanLII)the Ministry’s social workers did not conduct a proper investigation and should havereturned D.C. to his parents without going to court. They claim damages for loss ofincome and for the legal and associated costs incurred in the Provincial Courtprotection hearing.[6] The Ministry says that L.C. and L.S. do not have a cause of action innegligence in these circumstances, and alternatively if they do, the Ministry’s socialworkers 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 theparties, the children, and family members, in order to protect the identities of thechildren involved in this case. Counsel for the Ministry also sought a ban on thepublication of the names of the social workers involved in this case, but only ifnegligence against them was not proven.[8] I do not consider it appropriate to restrict publication of the names of thesocial workers in this judgment, regardless of the outcome. These individuals wereexercising statutory authority and I see no reason why the court should substituteinitials for their names in these reasons for judgment.
  4. 4. L.C. & L.S. v. H.M.T.Q. et al Page 4ISSUES[9] The issues are: (a) Does the Ministry owe a private law duty of care to L.C., a parent, and 2005 BCSC 1668 (CanLII) 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 notowe a private law duty of care to L.S., but that it does owe a private law duty of careto L.C. in the circumstances of this case. I have also concluded that the scope ofthat duty is limited to a duty of due care and good faith, that the Ministry’s socialworkers did not breach that duty of care, and that consequently, the Ministry is notvicariously liable to L.C.NARRATIVE AND FINDINGS OF FACTThe injuries and initial apprehension of D.C.[11] The plaintiff L.C. has three children. D.C., born September 7, 1996, is theyoungest. J.C. was born in 1993 and A.C. in 1985. She is married to E.C., who is
  5. 5. L.C. & L.S. v. H.M.T.Q. et al Page 5the 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. 2005 BCSC 1668 (CanLII)was then seven weeks old. He was sleeping in a bassinet, which L.C. had placedon the bed in the master bedroom, against the wall. The door to the bedroom wasclosed. L.C. was doing housework. At approximately 10:00 am, she went to checkon J.C., then three years old. She found him in the master bedroom. The bassinetwas in the middle of the bed and J.C. was leaning over it, pushing on the baby’schest. The baby was crying. She reprimanded J.C. and picked up D.C., who settleddown shortly after. She did not notice any injury to D.C. However, for the rest of theday, 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 worriedabout 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 bonewas shattered into a three-pointed stellate fracture. Dr. Hamson, the paediatricianwho 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.”
  6. 6. L.C. & L.S. v. H.M.T.Q. et al Page 6[15] D.C. had seizures while at the hospital and his condition quickly began todeteriorate. He was transferred to Children’s Hospital in Vancouver. At one pointthe doctors thought he might not survive. He was in the intensive care ward for 2005 BCSC 1668 (CanLII)several days. Fortunately he began to improve. After about three weeks, he wasdischarged back to the local hospital.[16] The Ministry, through the Director, removed D.C. from the custody of hisparents on November 2, 1996, the day following his admission to hospital. A judgeof the Provincial Court made an order on November 16, 1996, placing D.C. in thecustody of the Director pending a protection hearing. After a meeting with theextended family on November 29, 1996, the Ministry decided to place D.C. in thecare of his maternal grandparents, the plaintiff L.S. and her husband, as a restrictedfoster placement. On December 2, 1996, D.C. was discharged from hospital intotheir 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 theparents in March 1997.[18] In addition, the police were conducting an investigation. The Ministry socialworkers 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.’sinjuries. The first was Einar Maartman, the intake worker employed in the Ministry’sAfter Hours program, who made the initial decision to remove the children. Mr.
  7. 7. L.C. & L.S. v. H.M.T.Q. et al Page 7Maartman prepared a detailed After Hours Report, which outlined the information heobtained from a number of sources, including the parents and paediatricians. Herelied in particular on medical information from Dr. A. Cogswell, who described the 2005 BCSC 1668 (CanLII)injuries as including retinal hemorrhage, skull fracture, and significant brain damage,and suggested that D.C. may have been severely shaken and thrown. He alsorelied on similar information and opinion from Dr. Jean Hlady, the director of theChild Protection Service Unit at Children’s Hospital.[20] In her initial consultation report, Dr. Hlady concluded that D.C. had sufferedsevere non-accidental trauma. She based this on the presence of the large skullfracture, the retinal hemorrhages, and the intracerebral bleeding. She made theinitial calls to the Ministry and to the police.[21] Deborah Zapp, the acting district supervisor, received the After Hours Reportabout D.C. and recognized that this was a complex matter. She sent a report toDiane Wenger, the acting area manager, and she assigned two social workers to thefile, Leslie Holtby and Paul MacDonald.[22] Ms. Holtby took steps to obtain for the parents supervised access to theirchildren and to determine if it was possible to place the children with family orfriends. She and Mr. MacDonald continued with their investigation. On November15, 1996, they met with Dr. Hlady, who outlined the injuries and explained why shethought they resulted from shaken baby syndrome. In her Discharge Summarydated 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
  8. 8. L.C. & L.S. v. H.M.T.Q. et al Page 8bleeding, cerebral edema and retinal hemorrhages. She referred to an examinationof the eyes by an ophthalmologist, who had indicated that there were bilateral retinalhemorrhages “consistent with severe shaking injury.” She thought it “very unlikely 2005 BCSC 1668 (CanLII)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 arisk assessment on the C. family. Mr. McNeil found few risk factors, only 4 of 23possible factors. These factors related to the severity of the injury and the youngage of the child. Some areas were not rated due to insufficient information. Inessence, this was a good family with a lot of strengths. The profile was unusual andit created a dilemma for the Ministry, when compared to the medical information.[24] Mr. McNeil recommended that a family assessment be completed, that thechildren remain in care pending completion of the investigation and assessment, thatthe older two children be placed with a family friend, and that the maternalgrandparents 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 theassumption that [L.C.] was responsible for the injuries to [D.C.].”[25] The Ministry implemented Mr. McNeil’s recommendations. Ms. Holtbyretained 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 hisexpertise.
  9. 9. L.C. & L.S. v. H.M.T.Q. et al Page 9[26] On November 29, 1997, the family requested a meeting with the Ministrysocial workers regarding the placement for D.C. Ms. Holtby had advised them thatthey could not yet proceed to place him with L.S. Ms. Holtby arranged the meeting, 2005 BCSC 1668 (CanLII)and a fairly large contingent of family and friends attended. Ms. Wenger was in thebuilding 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 ascaregivers and would be an appropriate placement, and she approved it.[27] There was some evidence that Ms. Holtby and Ms. Zapp expressed views tothe effect that L.C. was guilty of causing the injuries to D.C. The family had theimpression 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 theythought at the time. Mr. Maartman was quite convinced that D.C. had been shakenand remained firmly of that view. Ms. Holtby, while suspicious, testified that this wasnot her perspective, but there was medical evidence pointing that way and the familyneeded to understand that in respect of the Ministry’s responsibility. Sheacknowledged that she likely told them that it was improbable that the three-year-oldwas guilty. Ms. Zapp agreed that she advised L.S. and her husband that they werenot to accuse the three-year-old and that they had to follow the Ministry’s directionsor D.C. would be removed from their care. She denied making statements aboutD.C.’s prognosis.[28] Dr. Elterman completed his assessment in February 1997. He did not findanything of sufficient magnitude to assist him in identifying a psychological factorrelevant to explaining D.C.’s injuries. He found no information suggesting an anger
  10. 10. L.C. & L.S. v. H.M.T.Q. et al Page 10control problem in either of the parents and no evidence that either of the two olderchildren had been abused in any way.[29] As a result of Dr. Elterman’s conclusions, the two older children were returned 2005 BCSC 1668 (CanLII)to the parents under the Director’s supervision for six months, under a consent orderdated March 11, 1997. D.C. remained in the care of the Director for a further threemonths under a consent order dated March 14, 1997. He continued to reside withhis maternal grandparents, with supervised access to the parents.[30] Meanwhile, there were several changes in the Ministry staff. In January1997, Ms. Holtby left her position to take further education and Ms. Wenger left herposition as acting area manager to become a team leader in another district.Subsequently, Mr. MacDonald also left. In April 1997, Carol Jones became thesocial worker responsible for this file. Ms. Zapp left her position as acting teamleader 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 thereturn of D.C. They also sought further medical information. In May, their counselsent 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 andconsider 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
  11. 11. L.C. & L.S. v. H.M.T.Q. et al Page 11 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 2005 BCSC 1668 (CanLII) 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 hemorrhageswere consistent with shaken baby syndrome. However, he noted that the findingswere asymmetrical and because no spinal cord anomalies were found, “one maywish to pursue further to know if the findings on the left eye particularly, could beconsistent with cerebral edema instead of shaken baby syndrome.” He mentionedother factors that spoke against a chronic child abuse situation.[33] Also in May, Dr. Elterman provided an update report to the Ministry. He didnot find psychological evidence related to increased risk. He recommended thatD.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, heconsulted with Carol Jones about this case and reviewed some of the key
  12. 12. L.C. & L.S. v. H.M.T.Q. et al Page 12documents. He was aware there appeared to be competing medical opinions andthe decision was difficult. Because there was another court date pending and adecision had to be made, he requested a case conference with all of the people who 2005 BCSC 1668 (CanLII)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 forMay 29, 1997.The Ministry’s decision[36] At the meeting on May 29, 1997, the Ministry decided not to return D.C. to hisparents and to seek a continuing custody order in Provincial Court. The plaintiffstake issue with this decision, in light of the conflicting medical opinions about thepossible cause of D.C.’s injuries. They say that the Ministry ought to have deferredthe decision until they made further inquiries in order to properly understand andreconcile the medical evidence.[37] Although it appears that this meeting was assembled quite quickly, almostevery worker who had been involved in this case after the initial apprehensionattended: the current and previous social workers, Ms. Jones and Ms. Holtby; thecurrent and previous team leaders, Mr. Walters and Ms. Zapp; and the current andprevious area managers, Ms. London and Ms. Wenger. Mr. McNeil, the childprotection 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 individualsto attend such a meeting.
  13. 13. L.C. & L.S. v. H.M.T.Q. et al Page 13[38] Ms. Jones provided a summary of the information in the file, including thestatus of the police investigation, her involvement with the family, and the plan ofcare they had developed. Most of the participants recalled, in varying degrees, 2005 BCSC 1668 (CanLII)discussing Mr. McNeil’s risk assessment, Dr. Elterman’s reports, Dr. Hlady’s opinionand 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 stronglyfor a return. Ms. Zapp did not recall attending the meeting and it is not clear if shewas 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 childabuse. While they considered what Dr. Traverse had to say, they did not accept hisopinion as overriding the child protection team at the Children’s Hospital. Ms.Wenger said that the Ministry had a formal relationship with the child protectionteam, as a resource.[40] Ms. London first became aware of the case only a few days before thismeeting. She did not review the file in advance. She did not recall reading any ofthe medical reports in advance, but she did recall reading Dr. Traverse’s letter duringthe 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 anumber of factors, including the severity of the injury, the age of the child, themedical 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
  14. 14. L.C. & L.S. v. H.M.T.Q. et al Page 14level of accepted responsibility. She did not consider seeking another medicalopinion because Dr. Hlady had consulted with a number of other specialists. Ms.London thought they had all of the medical evidence that was available. 2005 BCSC 1668 (CanLII)[41] All of the participants described the decision as very difficult. Ms. Holtby aptlydescribed it as a “kind of Solomon decision.” Essentially, they opted to err on theside of safety for the child by retaining custody and putting the issue before thecourt.[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. Hladyto 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’sopinion with Dr. Hlady, at least in any detail. The scant notes taken by Ms. Jonesindicate only that Dr. Hlady “reconfirmed that she is not of opinion that this injurycould have been caused by 3 yr-old” and that Dr. Hlady “would like any otherreports.” There is no evidence that Dr. Hlady received a copy of Dr. Traverse’s letterat any time up to June 1997.The Proceedings in Provincial Court[43] Following the May 29, 1997 decision, the Ministry amended its application fora further extension of the temporary order of March 14, 1997, and applied forcontinuing custody. The hearing started on September 10, 1997, and continued for
  15. 15. L.C. & L.S. v. H.M.T.Q. et al Page 15a total of seven days. Unfortunately, these days were scattered throughout themonths of September and December 1997 and March and June 1998.[44] Dr. Traverse gave evidence on September 17, 1997. He expanded on the 2005 BCSC 1668 (CanLII)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 bythe cerebral edema and the little baby brother thumping on the chest.”[46] Dr. Hlady gave evidence on December 17, 1997. She confirmed herdiagnosis of shaken impact syndrome. She testified that there were twocomponents to D.C.’s injuries: the first was the skull fracture and the second was theswelling of the brain and bleeding in the subdural space. She said that the retinalhemorrhages were quite severe, and that such hemorrhages do not have to bebilateral or equal in shaken baby syndrome. She acknowledged that there were noabnormal skeletal findings in D.C.’s neck or spine and no bruise marks or damage tothe skin. This did not detract from her opinion, as she explained that there are caseswhere 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 beencaused by a three-year-old child. She was specifically asked about Dr. Traverse’s
  16. 16. L.C. & L.S. v. H.M.T.Q. et al Page 16May 12, 1997 opinion, in particular, his questioning about the ophthalmologicalfindings. 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 2005 BCSC 1668 (CanLII)damage. She did not think it was a possibility that the child thumping on the baby’schest could cause intracranial pressure.[48] She was asked in cross examination to consider, for the first time, a scenariowhere the three-year-old was jumping on the bed, fell, and hit the baby’s head withhis knee. She said this could explain the skull fracture but not the retinalhemorrhages, the subdural bleeding and the cerebral swelling. Dr. Hlady said that ina young baby, shaking has to be a strong possibility where there are retinalhemorrhages, 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 retinalhemorrhages are almost always present in shaken baby incidents and that a checkfor them should be done at the very first opportunity. She also said that they areeasily 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 Unitat Children’s Hospital did not find any. Subsequently, two ophthalmologistsexamined the child and found them. Dr. Hlady did not rely on the first doctor’sexamination, but rather on those of the ophthalmologists. The first ophthalmologistindicated that the hemorrhages were sub-retinal in nature and the other indicatedthat the findings were consistent with a severe shaking injury.
  17. 17. L.C. & L.S. v. H.M.T.Q. et al Page 17[50] Up to this point in the hearing, the medical evidence, while more detailed, wasessentially the same as the information that was available to the Ministry at the timethe Director made the May 29, 1997 decision. 2005 BCSC 1668 (CanLII)[51] During the hearing, the judge noted the serious allegations and indicated thatshe hoped the Director would retain a forensic pathologist to review the records andgive evidence to assist the court. The Ministry then sought an opinion from Dr.Sharon Boone, a forensic pathologist. Dr. Boone wrote a report, dated December16, 1997, and gave evidence at the hearing on March 11, 1998. Her opinion wasconsistent 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 firmin 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 surgeonqualified in both neurological and orthopaedic surgery. Dr. Kuntz wrote a reportdated April 18, 1998, and gave evidence on June 18 and 22, 1998. Dr. Kuntz did acomprehensive review of the medical records and the history given by L.C. Hereconstructed the event and developed the hypothesis that “the 3 year old 35 poundsibling may have been trampolining on the parent’s bed causing the bassinet tomigrate towards the middle of the bed where the bassinet clipped the leg of the 3
  18. 18. L.C. & L.S. v. H.M.T.Q. et al Page 18year old who fell knee-first onto [D.C.]’s skull.” He referred to D.C.’s injury as “a veryserious playground injury ‘at the knee of a child’.”[54] Dr. Kuntz’s report gave an extensive analysis about a number of clinical 2005 BCSC 1668 (CanLII)findings. He was of the view that the retinal hemorrhages were caused, not byshaking, but by acute subdural hemorrhage, and that the injuries were aggravatedby the way D.C. was subsequently handled.[55] Dr. Kuntz concluded that D.C. did not suffer shaken baby or shaken impactsyndrome. He believed the clinical findings were explained by the single impactknee injury scenario.[56] The police investigation continued during the course of the proceedings inProvincial Court, until March 1998, when the police informed the Ministry that Crowncounsel 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 hisparents. She outlined the two theories presented to explain the injury to D.C. andfound 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;
  19. 19. L.C. & L.S. v. H.M.T.Q. et al Page 19 • 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 2005 BCSC 1668 (CanLII) 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’s attack on the medical conclusions of shaken baby syndrome, based oncertain medical facts and knowledge in the hospital records, which should have beentaken into consideration by the Ministry but were not. She found that Dr. Hlady hadagreed 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, ifnot 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)
  20. 20. L.C. & L.S. v. H.M.T.Q. et al Page 20[61] The parents asked for costs of the proceedings, but the judge declined tomake such an order. Rule 4(10) of the Provincial Court (Child, Family andCommunity Service Act) Rules permits the court to award costs where the judge 2005 BCSC 1668 (CanLII)determines that calling another party’s expert was unnecessary. Given thecomplexity 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 vicariouslyliable 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 initiallymade claims against Dr. Hlady, Ms. Zapp and Mr. Walters, the statement of claimwas 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
  21. 21. L.C. & L.S. v. H.M.T.Q. et al Page 21 (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 theproceedings before the Provincial Court, L.C.’s loss of income and L.S.’s loss of 2005 BCSC 1668 (CanLII)income while she remained at home to care for D.C.[65] There are several problems with the plaintiffs’ case. First, it is brought innegligence, without alleging that the Ministry owes the plaintiffs a private law duty ofcare 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 specialdamages for economic losses, yet the income loss claims appear to arise, at least inpart, from a claim for damages arising from emotional harm. I have been referred tono case where plaintiffs have advanced only economic loss claims against theCrown in similar circumstances. Counsel for the plaintiffs advised the court that hemade a deliberate decision not to seek damages for pain and suffering andemotional harm to L.C., due to the difficulty of separating the causes for this asbetween the Ministry’s actions and the obvious trauma of D.C.’s injuries. Hestressed, however, that personal injuries were suffered in this case. Third, theplaintiffs did not provide sufficient evidence of their alleged damages to meet theirburden of proof. There was no documentary evidence supporting the claim for legalcosts. The income loss claims were supported by pay stubs, but there was littleevidence as to the basis for these claims and no evidence proving causation.[66] The Ministry defended this action on two main grounds. First, it submittedthat the Ministry owes no private law duty of care enforceable in damages to these
  22. 22. L.C. & L.S. v. H.M.T.Q. et al Page 22plaintiffs. Second, if such a duty of care exists, it submitted that the Ministry met thestandard of care required of a reasonable child protection authority in thecircumstances, and its employees exercised their statutory discretion properly and in 2005 BCSC 1668 (CanLII)good faith.ANALYSIS OF THE ISSUES(a) Does the Ministry owe a private law duty of care to L.C., a parent, andL.S., a grandparent, in respect of the duties carried out by the director and hisor her delegates in a child protection investigation under the Child, Family andCommunity Service Act?[67] Counsel for the plaintiffs submitted that the Child, Family and CommunityService Act (the Act) creates a duty to families, which is a duty that the socialworkers employed by the Ministry act in good faith.[68] Counsel for the Ministry submitted that there is no recognized duty of care innegligence 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 LondonBorough Council, [1978] A.C. 728, as adopted by the Supreme Court of Canada inKamloops 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 statutorypublic authority liability for pure economic loss, that a general duty of care to personsother than children in need of protection has not been recognized, and that there arestrong policy reasons why such a duty of care should not be recognized in thesecircumstances.[69] While these claims for economic loss arise in quite a different context than themore usual business or commercial context, it is nevertheless important to consider
  23. 23. L.C. & L.S. v. H.M.T.Q. et al Page 23whether this type of loss is recoverable. Recovery in tort for pure economic loss islimited because of the risks of indeterminate liability. However, Canadian courtshave allowed recovery for pure economic loss where a sufficient relationship of 2005 BCSC 1668 (CanLII)proximity exists between the plaintiff and the defendant and between the negligentact and the loss. “Proximity is the controlling concept which avoids the spectre ofunlimited liability”: Canadian National Railway Co. v. Norsk Pacific SteamshipCo., [1992] 1 S.C.R. 1021 at 1152. McLachlin J. (as she then was) stated in Norskat 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 dutyof care, I have applied these principles, which originated in Home Office v. DorsetYacht Co. Ltd., [1970] 2 All E.R. 294 and Anns, having regard to the differences infactual 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 theCrown could be liable for the actions of its employees in the exercise of discretionarystatutory authority. It held that there could only be liability if the person entrustedwith discretion either unreasonably failed to carry out his or her duty to consider thematter or reached a conclusion so unreasonable as to show a failure to do his or her
  24. 24. L.C. & L.S. v. H.M.T.Q. et al Page 24duty. 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 2005 BCSC 1668 (CanLII)borstal trainees. The trainees had been working on an island under the control ofthree officers. While the officers were asleep, several of the trainees stole a yachtand ran it into another yacht. On a preliminary point of law, the question waswhether the Home Office could be held liable for the damage to the yachts. It wasconceded that it would be vicariously liable if an action could be taken against theofficers.[73] The House of Lords held that the Home Office could be liable on the factspleaded. The majority held that the officers owed a common law duty of care to theowners. Lord Reid accepted the proposition that if a person performs a statutoryduty carelessly so that he causes damage to a member of the public, which wouldnot 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 discretionarystatutory 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
  25. 25. L.C. & L.S. v. H.M.T.Q. et al Page 25 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 2005 BCSC 1668 (CanLII) 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 ofprotecting neighbours and their property from escapees with the public interest inpromoting rehabilitation.Anns v. Merton[76] In Anns, the House of Lords further defined the circumstances in which thelaw would impose private law duties on public authorities discharging statutory,public law powers and duties. Lord Wilberforce set out a two-stage test. First, isthere a relationship of proximity between the alleged wrongdoer and the person whohas suffered damage sufficient to create a prime facie duty of care? Second, arethere any considerations which ought to negative, reduce or limit the scope of theduty, limit the class of person to whom it is owed, or the damages to which a breachof it may give rise? In respect of the second stage of the test, reference was madeto Home Office.[77] Lord Wilberforce recognized that a public body’s powers and duties aredefinable 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
  26. 26. L.C. & L.S. v. H.M.T.Q. et al Page 26 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: 2005 BCSC 1668 (CanLII) 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 toprovide a useful framework in which to approach the question of whether a duty ofcare should be imposed in a new situation and that its importance lies in itsrecognition that policy considerations play an important role in determining proximityin new situations. It clarified the policy considerations to be considered at eachstage of the Anns test.[81] The Court confirmed that to find a prima facie duty of care at the first stage ofthe analysis, there must be reasonable foreseeability of the harm plus proximity. In
  27. 27. L.C. & L.S. v. H.M.T.Q. et al Page 27this regard, two questions arise: (1) Was the harm that occurred the reasonablyforeseeable consequence of the defendant’s act? (2) Are there reasons,notwithstanding the proximity between the parties established in the first part of this 2005 BCSC 1668 (CanLII)test, that tort liability should not be recognized here?[82] The proximity analysis at this stage focuses on factors arising from therelationship between the parties, which include questions of policy. Proximity isgenerally used to characterize the type of relationship in which a duty of care mayarise. Sufficiently proximate relationships are identified through the use ofcategories. Categories are not closed. Where the source of the duty involved is in astatute, 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 caredoes not fall within a recognized category, and must be considered where a duty ofcare in a novel situation is alleged. This is where residual policy matters areconsidered. These are concerned with the effect of recognizing a duty of care onother legal obligations, the legal system, and society more generally. At this point,the distinction is made between policy and operational decisions. Similarconsiderations may arise where the decision in question is quasi-judicial or, as Iexplain further below, discretionary.Duty of care under the Act[84] There are few cases in Canada that have addressed the Crown’s duty of caretowards 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.
  28. 28. L.C. & L.S. v. H.M.T.Q. et al Page 28British 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 childrenand their parents against the Superintendent of Family and Child Services and three 2005 BCSC 1668 (CanLII)social workers. After a brief investigation, one of the social workers formed theopinion that the father had sexually abused one of the children. All seven childrenwere apprehended. They were returned home after four days, when the fatheragreed to leave the house. Two months later, the father was allowed to see thechildren under supervision. Subsequently, after extensive investigations and after aProvincial Court judge stated her view that the allegations were unfounded, theMinistry dropped the matter.[85] The Court accepted that the social workers made significant errors ofjudgment in exercising their discretionary power to apprehend the children. Therewas conflicting opinion evidence from experts as to whether the social workers’actions accorded with good practice. Esson J.A. noted that this is a particularlypainful and difficult area, where there is much room for differences of opinion anderrors of judgment.[86] The trial judge had determined that the doctrines in Anns and Kamloopswere not applicable, as those cases were a long way from the power to take intocustody. 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,
  29. 29. L.C. & L.S. v. H.M.T.Q. et al Page 29 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 2005 BCSC 1668 (CanLII) 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 Appealdismissed an action in negligence brought by the owners of property against theSuperintendent of Family and Child Service, two youths who were permanent wardsof the Superintendent, and a foster parent. The youths broke into the plaintiffs’ cabinseveral 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 Courtof Canada in Just v. British Columbia, [1989] 2 S.C.R. 1228, concluded that therewas a relationship of sufficient proximity between the Superintendent and theproperty 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.
  30. 30. L.C. & L.S. v. H.M.T.Q. et al Page 30[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 theimposition of a duty: first, whether the statute provided an explicit exemption, and 2005 BCSC 1668 (CanLII)second, whether the agency was making a policy decision.[90] Macfarlane J.A. concluded that the protection provided in s. 23 of the Familyand Child Service Act, S.B.C. 1980, c. 11 exempted the Superintendent fromliability, and it was unnecessary to consider the policy/operational aspect of thedecision. Section 23 provided that no person is personally liable for anything doneor omitted in good faith in the exercise or purported exercise of the powers conferredby the Act. The current s. 101 provides a similar protection.[91] In this case, however, the plaintiffs have not brought their action against thedirector or any person exercising delegated authority, but only seek damagesagainst the Crown, through the Ministry, for vicarious liability. The Ministryconceded 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 Ministryis exempt from liability for negligence, it is necessary to consider the nature of thedecision at issue. As Esson J.A. stated in A.G. supra, the distinction betweendiscretionary decisions and other decisions is more apt in relation to this case thanthat between policy decisions and operational decisions.[92] I note that in MacAlpine, Wallace J.A., in dissent, preferred the approach ofMr. Justice Esson in A.G., applying Home Office to determine liability. He noted
  31. 31. L.C. & L.S. v. H.M.T.Q. et al Page 31that Just did not set down as a rule or principle that in every case of alleged liabilityof a government agency only one analytical approach is permissible. He concludedthat a decision made in the exercise of a statutory discretion was prima facie 2005 BCSC 1668 (CanLII)immune from review unless it failed to meet the standard set in Home Office. Asset out below, I have taken the approach described by the Supreme Court ofCanada in Cooper, as adapted to the particular circumstances of this case, asdiscussed 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. andL.S. must each establish: (a) that the harm complained of is a reasonablyforeseeable consequence of the alleged breach, (b) that there is sufficient proximitybetween the parties that it would not be unjust or unfair to impose a duty of care onthe Ministry, and (c) that there exist no policy reasons to negative or otherwiserestrict 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 thecircumstances of D.C.’s injuries. The harm complained of by L.C. is the cost ofdefending herself in the child protection hearing and her loss of income due to herinability, as a result of her emotional state, to return to work. The harm complainedof by L.S. is her loss of income due to her inability to work while she was caring forD.C. and her delayed return as a result of her emotional state.
  32. 32. L.C. & L.S. v. H.M.T.Q. et al Page 32[95] In my view, it was reasonably foreseeable that L.C. would suffer these kindsof losses if the Ministry social workers failed to properly investigate the matter, andthus delayed the return of D.C. to his parents. In the particular circumstances of this 2005 BCSC 1668 (CanLII)case, where the Ministry was working closely with L.S. as a family member andfoster parent, her loss of income was also reasonably foreseeable. Where theanalysis 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 delegatesacted in this case is the Act, so the factors giving rise to proximity, if they exist, mustarise from the Act.[97] The Ministry concedes that the Act imposes a duty of care on the director andhis or her delegates to children. There have, in fact, been cases brought by childrenagainst the Ministry and its employees where children have been placed andsubsequently harmed: see, for example, C.H. v. British Columbia (2004), 31B.C.L.R. (4th) 26 (C.A.). Counsel submitted, however, that the Act does not alsoimpose a duty of care to parents or families generally.[98] There have been actions brought against the Ministry and those exercisingdelegated authority under the Act or its predecessor Acts by persons other thanchildren. In some of those cases, the actions were brought by both parents and theirchildren: 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 notexplicitly addressed in these cases, but there is an implication, particularly in A.G.
  33. 33. L.C. & L.S. v. H.M.T.Q. et al Page 33that parents are in a relationship of sufficient proximity to the Ministry to create aprima facie duty of care. As noted above, in MacAlpine, the action was brought byproperty owners for damage to their cabin by wards of the Superintendent of Family 2005 BCSC 1668 (CanLII)and Child Service, and sufficient proximity was found to exist between theSuperintendent and the owners. I note, however, that in none of these cases did theplaintiffs claim only for economic loss.[99] Clearly, the Act focuses on children. It deals primarily with child protectionand service delivery to families and children. There is an express direction in s. 2that the Act “must be interpreted and administered so that the safety and well-beingof 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 childs views should be taken into account when decisions relating to a child are made; (e) kinship ties and a childs 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 theprocess in motion by removing a child where he or she has reasonable grounds to
  34. 34. L.C. & L.S. v. H.M.T.Q. et al Page 34believe that the child needs protection, and the child’s health or safety is inimmediate danger or there is no less disruptive measure available that is adequateto protect the child. Section 13(1) sets out the circumstances where a child needs 2005 BCSC 1668 (CanLII)protection. Notably, most of those circumstances involve some form of abuse, harmor neglect by a parent.[101] Thereafter, the issues are brought to court and it is for the court to determineif 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 toattend the hearings before the court. The director has the power under s. 48 toreturn a child to the parents before a protection hearing if satisfied that the child is nolonger in need of protection.[102] This statutory scheme provides a framework to ensure that the director hasdiscretionary authority to remove children in need of protection, with checks andbalances 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 interestsof children. One of these principles, that families are considered to be the preferredenvironment for the care and upbringing of children, is reflected in the supportservices 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 ….
  35. 35. L.C. & L.S. v. H.M.T.Q. et al Page 35[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 Childand Family Services v. K.L.W., [2000] 2 S.C.R. 519. At issue there was the 2005 BCSC 1668 (CanLII)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 innon-emergency situations without judicial authorization did not violate s. 7 of theCharter of Rights and Freedoms. In this context, L’Heureux-Dubé, J. for themajority, 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 insufficient proximity to the Ministry. L.C., a parent, was being supervised by theMinistry and was working with the social workers with the objective of having herchildren returned home. L.S., a grandparent, was also being supervised by theMinistry as a restricted foster home for D.C. There is clearly a relationship betweenthe Ministry and these two parties. There must also be sufficient proximity betweenthe alleged negligent act or breach of duty and the loss.[105] The Ministry argued that a duty resulting in the kinds of economic lossesclaimed in this case may result in liability in an indeterminate amount for an
  36. 36. L.C. & L.S. v. H.M.T.Q. et al Page 36indeterminate 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 thespectre of unlimited liability.” In this analysis, courts must have regard to a variety of 2005 BCSC 1668 (CanLII)factors, depending on the nature of the case. Here, the alleged negligent act, theMinistry’s failure to properly investigate D.C.’s injuries, directly affected L.C. Shelost custody of D.C. and took whatever steps she could to get him back. With theassistance of L.S., she retained a lawyer. She did not return to work as plannedafter her maternity leave. These steps resulted in losses that included legalexpenses and loss of income.[106] The same cannot be said for L.S. While she was certainly affected, the lossshe claims is too remote from the alleged negligent act to satisfy the proximityanalysis. Her loss can be described as a kind of relational loss, as discussed byStevenson J. in Norsk, supra at pp. 1175 - 1176. It does not arise directly from theMinistry’s alleged breach of duty, but rather arises as a result of L.S.’s relationshipwith L.C., the alleged injured party. L.C. lost custody of D.C. and L.S. stepped in tobe the child’s primary caregiver while the Ministry investigated and the situation wasresolved one way or another. There was no certainty as to how long this processwas 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 sameargument could be made by anyone who took on the role of a restricted fosterplacement, whether a member of the family or a close friend. To find a private lawduty of care to persons in the position of L.C. would, in my view, result in
  37. 37. L.C. & L.S. v. H.M.T.Q. et al Page 37indeterminate liability to an indeterminate class. It would be unjust or unfair for theMinistry’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 2005 BCSC 1668 (CanLII)stage of the Anns test, the issue of indeterminate liability is a consideration thatshould negative the duty of care to her. In my view, the duty should not extend tothe class of person in L.S.’s position, nor should it extend to the damages she claimsin this action.[108] Finally, a key question is whether the kind of loss claimed by L.C. is withinthe purview of the Act: Kamloops, supra, at p. 33. The analysis in Kamloopsregarding economic loss is difficult to apply to the facts of this case. While this is notthe kind of loss the Act was specifically intended to guard against, it is not outsidethe purview of the Act, considering the role of a parent in child protectioninvestigations and hearings. Moreover, I do not think that permitting recovery forthese claims for economic loss would result in unlimited liability. All of the losses arepast losses. The amounts are determinate and the class – a parent in an activerelationship with the Ministry - is specific.[109] I note that both pecuniary and non-pecuniary damages have been awardedto children: see C.H., supra and Delaronde, supra. With respect to the legal costsincurred in the child protection hearing, the Act does not provide for costs to be paidto parties such as L.C. and Judge Maltby did not award costs. However, incircumstances where there has been a finding of liability in negligence, a claim forsuch costs takes on a different character. A plaintiff should be entitled to claim legal
  38. 38. L.C. & L.S. v. H.M.T.Q. et al Page 38costs as out of pocket expenses if he or she is unable to obtain costs in theprotection hearing, and there is a clear causal connection between the negligent actand the expenses. 2005 BCSC 1668 (CanLII)[110] In my view, the duty to L.C. should not exclude economic loss under theproximity analysis. In the particular circumstances of this case, I find there issufficient proximity between the Ministry and L.C. to create a prima facie duty ofcare. Despite this, there are clear policy reasons to limit the scope of tort liability inrespect of the duties carried out by Ministry delegates in child protectioninvestigations.Policy(i) The nature of the decision[111] The distinction between discretionary decisions and other decisions, which ismore applicable in this case than the distinction between policy decisions andoperational 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 thecourt considers factors that “ought to negative, or reduce or limit the scope of theduty, limit the class of person to whom it is owed or the damages to which a breachof 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 orher delegates, the social workers and their supervisors. These kinds of decisions
  39. 39. L.C. & L.S. v. H.M.T.Q. et al Page 39are especially difficult. The trial judge in A.G. gave an apt description of thisdifficulty, which was referenced by the B.C. Court of Appeal at p. 228: Social workers must make difficult choices when determining what to 2005 BCSC 1668 (CanLII) 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 verydifficult decision to make. On the one hand, it had a very young child with a veryserious injury. Dr. Hlady, with the support of the medical team at Children’sHospital, formed the opinion that the injury was non-accidental, that it was likely theresult of a shaking and impact, and that it must have been inflicted by L.C., themother. Dr. Traverse was not so sure, but he did not give a definitive opinion to thecontrary. There was no dispute that if the injury was caused by shaking, it could nothave been inflicted by the three-year-old brother. On the other hand, it had a familywith 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 andadamantly denied inflicting any injuries. The extended family and friends workedwith 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 forcontinuing custody. They resolved the dilemma, as some described it, by erring on
  40. 40. L.C. & L.S. v. H.M.T.Q. et al Page 40the side of the safety of D.C. As the statute permitted, they brought the issue to thecourt to determine.[115] In A.G., Esson J.A. held that these circumstances were like those in Home 2005 BCSC 1668 (CanLII)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 Houseof 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 natureof the decision involved in this case does not negative a duty of care, but it reducesor limits the scope of the duty of care. Thus, the duty of care owed by the Ministry toL.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 proximityanalysis should be addressed in the first stage of the Anns test, as described in
  41. 41. L.C. & L.S. v. H.M.T.Q. et al Page 41Cooper. Counsel argued strenuously that to find a duty to parents who aresuspected of child abuse would conflict with the duty the Ministry clearly owes to thechild. I was referred to J.D. (F.C.) v. East Berkshire Community Health N.H.S. 2005 BCSC 1668 (CanLII)Trust and others and two other actions, [2005] U.K.H.L. 23, a recent decision ofthe House of Lords, as persuasive authority on this point.[120] This policy issue is of considerable importance. It may be the kind of broadconsideration 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 orsecond 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 ofparents. The decision, which was based on a preliminary point of law, applied tothree cases where a parent was incorrectly suspected of child abuse. In each casethe parent brought proceedings against the health trust and in one instance againsta physician personally, claiming damages for negligence in the clinical investigation,diagnosis and reporting of the child’s condition. The primary question was whetherphysicians and, vicariously or directly, health trusts, were liable in damages to aparent in such a case. A parallel question concerned the liability of a local authorityin respect of its investigation of suspected child abuse.[122] In a four-to-one decision, the majority determined that the duty owed by aphysician or other health professional to a child in making decisions regarding child
  42. 42. L.C. & L.S. v. H.M.T.Q. et al Page 42abuse should not be clouded by imposing a conflicting duty in favour of parents orothers suspected of having abused the child.[123] Lord Bingham, in dissent, expressed the opposite view at para. 44, that 2005 BCSC 1668 (CanLII) … 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 thecommon law liability of physicians, not on the liability of social workers exercising astatutory discretion. The plaintiffs had claimed, essentially, that doctors owed to theparents a duty sounding in damages if they acted in good faith, but carelessly, by
  43. 43. L.C. & L.S. v. H.M.T.Q. et al Page 43failing 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 2005 BCSC 1668 (CanLII) 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 personserroneously suspected of child abuse was that clinical and other investigations mustbe conducted in good faith. He equated this with the level of protection affordedgenerally to persons suspected of committing crimes. This is the only legal recoursefor a person suspected of child abuse in the absence of a common law duty of goodfaith arising from a statutory duty.[127] An earlier decision of the House of Lords, X (Minors) v. BedfordshireCounty Council, [1995] H.L.J. No. 29, addressed the issue in the context ofstatutory duties. Five appeals were considered. Two of them involved allegationsthat public authorities negligently carried out, or failed to carry out, their statutoryduties 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 asthe 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 ayear later, the child was returned to the mother.
  44. 44. L.C. & L.S. v. H.M.T.Q. et al Page 44[128] Lord Browne Wilkinson discussed the conflict issue briefly, expressingconcern that local authorities would adopt a more cautious approach in childprotection matters. In considering the exercise of a statutory discretion generally, he 2005 BCSC 1668 (CanLII)reiterated the law as established in Home Office and Anns. However, with respectto the child protection cases, he held that, as a matter of policy, it was not just andequitable to impose a common law duty on local authorities to children or parents inrespect of the performance of their statutory duties to protect children. He basedthis on a number of considerations related to the statutory system set up to protectchildren at risk. In J.D., it was acknowledged that this proposition was stated toobroadly, and that local authorities may owe common law duties to children in theexercise of their child protection duties.[129] I agree with the Ministry that to place a duty towards parents in thesecircumstances may subject the Ministry and its delegates to potentially conflictingduties. These decisions of the House of Lords are compelling. However, theanalysis in J.D. was not made in the context of a statutory duty, but rather in thecontext of professional negligence. X (Minors) denied a general duty based onpolicy considerations that were pertinent to the child welfare system in England,which Lord Browne-Wilkinson described as interdisciplinary, involving theparticipation of the police, educational bodies, doctors and others, and involving jointdiscussions, joint recommendations and joint decisions. He considered that it wouldbe manifestly unfair to introduce into such a system a common law duty of careenforceable against only one of the participant bodies.
  45. 45. L.C. & L.S. v. H.M.T.Q. et al Page 45[130] Considering the limited scope of the duty of care as I have outlined above, Ido not consider that the imposition of such a duty to a parent places the Ministry in aconflict of sufficient magnitude that would negative the imposition of any duty. 2005 BCSC 1668 (CanLII)Provided its delegates exercise their discretion in child protection investigations ingood 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 outlinedabove, the standard of care is that set out in Home Office, which the Court ofAppeal 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 dutythat would otherwise be owed in a case of negligence. Decisions relating to childwelfare are inherently difficult and liability cannot be founded on errors of judgmentmade in good faith: D. (B.), supra, at p. 217.[133] I pause here to say that narrowing the scope of the duty or lowering thestandard of care is not consistent with the normal duty to take reasonable care in acause of action for negligence. However, this is the cause of action that courts
  46. 46. L.C. & L.S. v. H.M.T.Q. et al Page 46have recognized and under which the analysis of a duty of care has generally beenmade.[134] In conducting a child protection investigation, then, the Ministry’s delegates 2005 BCSC 1668 (CanLII)must exercise their discretion with due care and in good faith. Only where there hasbeen a failure to carry out the duty to consider the matter, or if the conclusionreached is so unreasonable as to show a failure to carry out the duty, will there beliability. With respect to good faith, they must honestly consider the facts as theyknow 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 tomatters that may have affected their decision not to return D.C. to his parents, andthat in this way they breached the standard of care. They were put on inquirybecause 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 conflictingopinions 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, theyimproperly delegated their authority to Dr. Hlady.[136] The Ministry admits that it is vicariously liable for the actionable conduct, ifany, of the social workers who were involved with the C. family. However, it arguedthat all of the individuals involved met the standard of care. They carefullyconsidered the information that was available to them, weighed it, and decided to err
  47. 47. L.C. & L.S. v. H.M.T.Q. et al Page 47on the side of safety to the child. They did not delegate their decision-makingfunction to anyone. They cannot be faulted for bringing the matter to court, as theAct clearly provides for this. 2005 BCSC 1668 (CanLII)[137] The Ministry points to s. 48 of the Act, which gives the director discretionaryauthority 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 thissection because there was no change of circumstances at the time the decision wasmade 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 saythe director ought to have acted under this provision and returned D.C. to hisparents, instead of proceeding to court to seek continuing custody.[139] I have considered the evidence in light of Judge Maltby’s determination thatD.C. was not a child in need of protection and on this basis, the decision of thesocial workers on May 29, 1997 was wrong. D.C. was returned to his parents inAugust 1998 and he remains with them today. Fortunately, he is doing well. He is inthe 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 basisof the May 29, 1997 decision, as well as the information that they considered. Whilethere was a substantial amount of documentary and other information available to
  48. 48. L.C. & L.S. v. H.M.T.Q. et al Page 48them, 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 diagnosisand the basis for it. Despite this, I find that all of the Ministry’s delegates and 2005 BCSC 1668 (CanLII)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 ofshaken baby syndrome. I note that Ms. Holtby did meet with Dr. Hlady in person onNovember 15, 1996.[141] Dr. Traverse’s opinion was somewhat more fulsome, but it did not provide aclear alternative diagnosis or explanation for the injury. He was equivocal as towhether a blow by a three-year-old could create such extensive brain damage. Heraised as “conceivable” the possibility that repeated thumping on D.C.’s chest couldhave created an increase in intracranial pressure. He also stated that the delaybetween the time of the injury and the initiation of treatment allowed secondary braindamage to occur.[142] Dr. Traverse agreed that the findings of retinal hemorrhages were consistentwith shaken baby syndrome, but he questioned whether these findings could beconsistent with cerebral edema instead of shaken baby. He suggested that “onemay wish” to pursue this further. Counsel for the plaintiffs submitted that the socialworkers were put on inquiry due to this comment, and that none of them addressedit in their evidence. However, none of the Ministry witnesses were questioned aboutthis specific comment, either in direct or cross-examination. They were asked, andeach gave evidence about Dr. Traverse’s answers to the three questions. The