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Torts - Negligence - Child Welfare Agencies. Patterson v. Eastern Residential Services Inc.
In Patterson v. Eastern Residential Services Inc. (Ont CA, 2026) the Ontario Court of Appeal partially dismisses an appeal, here brought against the "order made on a r.21 motion under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which struck his statement of claim against Eastern Residential Services Inc. (“ERS”) and Simcoe Muskoka Family Connexions (“SMFC”), except for the breach of contract claim against ERS, which was struck with leave to amend".
The court considered the liability in negligence to parents, here from child welfare agencies:2. J.B. v. Ontario (Child and Youth Services)
[29] The appellant submits that, contrary to this court’s decision in J.B., child welfare agencies may, in some circumstances, owe a duty of care to parents and foster parents of the children they are mandated to protect.
[30] In Syl Apps, the Supreme Court held that the Children’s Aid Society did not owe a duty of care to biological parents because such a duty would conflict with the statutory duty owed to children in its care. In J.B., this court interpreted Syl Apps and similarly held that, “where entities exist to protect and provide for children’s best interests, to avoid conflicting duties, they must only owe a duty of care to the children they serve”: at para. 39. The appellant argues that this interpretation reads Syl Apps too broadly. In his view, Syl Apps did not establish a categorical rule that a Children’s Aid Society can only owe a duty of care to the children they serve and never, under any circumstances, to a parent or foster parent.
[31] The appellant relies on para. 49 of the British Columbia Court of Appeal’s decision in Harrison v. British Columbia (Children and Family Development), 2010 BCCA 220, 319 D.L.R. (4th) 251, leave to appeal refused, [2010] S.C.C.A. No. 293, to argue that a Children’s Aid Society may owe a duty of care to someone other than a child where doing so would not conflict with the CYFSA’s overriding mandate. He submits that this is such a case because the allegations were made purportedly on behalf of a child who could not communicate, and because B.M. was no longer in his care. In those circumstances, investigating past allegations of sexual abuse would not place the Societies in a potential conflict with the child. Nor, he adds, would a foster parent have parental expectations about the care a Crown ward would receive after removal from the foster home.
[32] I reject the appellant’s submission that any conflict in the Societies’ duties ended once B.M. was removed from his care. Even then, the Societies’ obligation to protect B.M. remained in tension with the duty of care the appellant says they owed him in investigating the alleged sexual abuse. Section 1(1) of the CYFSA confirms that priority: “The paramount purpose of this Act is to promote the best interests, protection and well-being of children.”
[33] In short, the Societies’ duty of care was owed to children who are, or may be, in the appellant’s care and whose safety may therefore be at risk. Not to him.
[34] Following J.B. and Syl Apps, this court reaffirmed in Fowler that a child welfare agency investigating abuse allegations cannot be expected to act in the best interests of both the alleged victims and the alleged perpetrators: at para. 37. This court also accepted that child welfare agencies, in exercising their statutory mandate, do not owe duties of care to third parties-that is, to anyone other than the children they serve: at para. 29.
[35] The law is settled: the appellant cannot maintain a negligence claim against the Societies. It is therefore plain and obvious that this cause of action will fail.
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