Appeals dismissed. Although the performed hair follicle testing for suspected drug and alcohol abuse was flawed, and were used in child protection proceedings, it is plain and obvious that the appellants’ claims cannot succeed against the various Children’s Aid Societies and Ontario for failure to disclose a reasonable cause of action.
The Motherisk Drug Testing Laboratory [“MDTL”], housed in the Hospital for Sick Children [“SickKids”] in Toronto, performed hair follicle testing for suspected drug and alcohol abuse. These results were used in family and criminal cases as well as in child welfare investigations and proceedings. It became evident that some of the test results, used in child protection proceedings, were flawed. At issue in this appeal is the potential liability of various Children’s Aid Societies [collectively “CAS”], the Ontario government [“Ontario”] and certain named workers arising from the unreliable test results.
Family members of children who were the subject of protection proceedings, sued the CAS and Ontario for damages, as a result of the faulty test results, for negligence, negligent investigation and supervision, negligent and/or intentional infliction of mental distress, bad faith, breach of fiduciary duty of care, misfeasance in public office and breaches of s 7 of the Charter. Six of those claims are the subject of this appeal.
The motions judge determined that the family members’ claims disclosed no reasonable cause of action and were bound to fail, because the CAS owed a duty of care to the children, not to the parents or family members (Syl Apps Secure Treatment Centre v BD, 2007 SCC 38). While Ontario owes a duty to the public at large, there is no relationship of proximity that would ground a duty of care to the appellants in these cases.
The Court agrees with the decision of the motions judge that it is plain and obvious that the appellants’ claims against the CASs and against Ontario cannot succeed for failure to disclose a reasonable cause of action.