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Torts - Trespass. Harper v. Sauve
In Harper v. Sauve (Div Court, 2022) the Divisional Court allowed an RTA s.210 appeal where the landlord claimed the right to issue a trespass notice against the tenants' guests, apparently in a tenant's 'reasonable enjoyment' RTA s.22 application:[14] In this case, the failure to hear the evidence of the threats or to challenge the landlord’s evidence as to why a trespass notice was issued to S.K. led the member to adopt the false premise that the landlord could exclude a guest of the tenant and limit the purposes for which that guest could attend at the invitation of the tenant by use of a trespass notice. See Cunningham v. Whitby Christian Non-Profit Housing Corp., (1997) 1997 CanLII 12126 (ON SC), 33 OR (3d) 171 (Gen. Div.). This led to the remedy which in the words of the tenant allowed the landlord to police their guests and to inquire into the details of care provided by a personal support worker. It also led to the member giving inadequate consideration to whether an abatement of rent was appropriate or a fine should be imposed or both. . Land v. Dryden Police Services Board
In Land v. Dryden Police Services Board (Ont CA, 2023) the Court of Appeal allowed an appeal from a summary dismissal of a lawsuit by a self-represented indigenous couple who sued the police over events following a report that the woman had attended to pick up children from school while intoxicated. The action was grounded in negligent investigation, negligence, negligent infliction of mental distress, invasion of privacy, trespass, misfeasance in public office and breaches of ss. 7, 8, 9 and 12 of the Charter.
Regarding the trespass tort against the police, which was defended on CFSA grounds, the court stated:[18] Concerning the Dryden Police, the motion judge relied on a finding that Ms. Gardner was entitled, under s. 40 of the Child and Family Services Act, R.S.O. 1990, c. C. 11 (the “CFSA”)[1], to enter the home without a warrant to search for and remove the child and to request the police officers to assist her in doing so to dismiss many of the appellants’ claims against them. ...
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(2) Did the motion judge err in finding Ms. Gardner was entitled, under s. 40 of the CFSA, to enter the appellants’ home without a warrant and to request the police officers to assist her in so doing?
[30] The motion judge found that Ms. Gardner’s entry into the appellants’ home was lawful for two reasons. First, he accepted that Mr. Land invited Ms. Gardner into the home. Second, he found that Ms. Gardner was entitled to enter the home under s. 40 of the CFSA without a warrant and that she was also entitled under that section to request that the police assist her in so doing.
[31] On appeal, the appellants dispute both findings.
[32] It is unnecessary that I address the first finding. I have found no error in the motion judge’s conclusion that the appellants’ claims against the Society defendants are statute barred. However, the lawfulness of the police entry into the home and of their subsequent actions in arresting the appellants for obstructing the police turn on whether Ms. Gardner was entitled, under s. 40 of the CFSA, to enter the home without a warrant and to invite the police to assist her. The fact that she may have been invited to enter the appellants’ home did not entitle her to invite the police to enter the home without the owners’ permission, or to do so without a warrant and by force, unless she was acting under authority granted by s. 40 of the CFSA.
[33] Before turning to the motion judge’s findings, it will be helpful to understand the relevant provisions of s. 40 of the CFSA.
[34] To make his findings, the motion judge relied on s. 40 of the CFSA, which included provisions (ss. 40(7), (8), and (11)) that authorized a child protection worker, in certain circumstances, to enter premises without a warrant, by force if necessary, to search for and remove a child, and to request the assistance of the police in doing so.
[35] However, ss. 40(1) and 40(2) of the CFSA provided necessary context for the provisions on which the motion judge relied, so I will review those subsections as well.
[36] Section 40(1) permitted a children’s aid society to apply to the court for an order that a child is in need of protection.
[37] Section 40(2) permitted a justice of the peace to issue a warrant authorizing a child protection worker to bring a child to a place of safety if satisfied “on the basis of the child protection worker’s sworn information” that there were reasonable and probable grounds to believe that:. the child is less than 16 years old and is in need of protection; and
. a less restrictive course of action is not available or will not protect the child adequately. [38] As noted above, ss. 40(7), (8), and (11) of the CFSA, authorized a child protection worker, in certain circumstances, to enter premises without a warrant, by force if necessary, to search for and remove a child, and to request the assistance of the police in doing so. The two conditions underpinning the authority provided by these sections included that the child protection worker believe on reasonable and probable grounds (i) that a child is in need of protection, and (ii) that there would be a substantial risk to the child’s health or safety during the time necessary to obtain a warrant under s. 40(2): R. v. Davidson, 2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 39.
[39] The specific provisions on which the motion judge relied, ss. 40(7), (8), and (11), read as follows (with emphasis added):40(7) A child protection worker who believes on reasonable and probable grounds that,
(a) a child is in need of protection;
(a.1) the child is less than 16 years old; and
(b) there would be a substantial risk to the child’s health or safety during the time necessary to bring the matter on for a hearing under subsection 47(1) or obtain warrant under subsection (2),
may without a warrant bring the child to a place of safety.
(8) A child protection worker acting under this section may call for the assistance of a peace officer.
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(11) A child protection worker who believes on reasonable and probable grounds that a child referred to in subsection (7) is on any premises may without a warrant enter the premises, by force, if necessary, and search for and remove the child. [40] In finding that Ms. Gardner was entitled to enter the appellants’ home under s. 40 of the CFSA, the motion judge made a finding that Ms. Gardner had a subjective belief that the appellants’ child “may have been” in need of protection on the day in question. He said the following (with emphasis added):Section 40(11) of the CFSA states that a child protection worker who believes on reasonable and probable grounds that a child may be in need of protection may without a warrant enter premises to search for and remove a child.
The requirement of reasonable and probable grounds has both a subjective and objective component. …
Ms. Gardner has deposed that she was advised that Ms. Henry picked her child up from school while possibly intoxicated. She felt obliged to check on the welfare of the child at the [appellants’] residence. Once at the residence, she initially encountered Mr. Land, whom she observed to be acting aggressively toward her and who she thought was under the influence of alcohol. Ms. Gardner deposed that Mr. Land attempted to close the door on her after she explained why she was present at his home.
I find that Ms. Gardner, having received a referral that Ms. Henry may have been intoxicated, and having observed Mr. Land to also be possibly intoxicated and aggressive, had a subjective belief that the [appellants’ ] child may have been in need of protection on the day in question. I also find that Ms. Gardner’s belief was objectively reasonable in the circumstances.
As a result, Ms. Gardner’s entry into the [appellants’] home on November 24, 2015 was lawful pursuant to s. 40(11) of the CFSA. [41] In my view, there are several problems with this analysis.
[42] First, while Ms. Gardner gave evidence in her affidavit filed on the motion of the background circumstances the motion judge described and said she had concerns for her safety and the safety of the child, she gave no specific evidence addressing whether she believed, when she entered the residence, that the child met the statutory criterion of being a child in need of protection. Her only evidence that spoke directly to that statutory criterion was that, after the appellants were placed under arrest, she concluded the child was in need of protection primarily because there was no adult caregiver present in the home. Accordingly, to the extent the trial judge made a finding concerning this statutory criterion, he made it without a proper evidentiary foundation.
[43] Second, although s. 40(7) sets out a requirement that to act without a warrant a child protection worker must believe on reasonable and probable grounds that a child is in need of protection, the motion judge described the requirement, and his finding concerning Ms. Gardner’s state of mind, as believing that the child may be in need of protection.
[44] Third, the motion judge made no finding concerning the requirement in s. 40(7)(b) that to act without a warrant, a child protection worker must believe on reasonable and probable grounds that there would be a substantial risk to the child’s health or safety during the time necessary to obtain warrant under s. 40(2).
[45] Fourth, Ms. Gardner gave no evidence in her affidavit concerning her subjective belief about whether there would be a substantial risk to the child’s health or safety during the time necessary to obtain warrant under s. 40(2).
[46] I recognize that in making his findings, the motion judge focused on s. 40(11) of the CFSA which specifically authorizes a child protection worker to enter onto premises without a warrant, by force, if necessary, to search for and remove a child. However, s. 40(11) is premised on s. 40(7), which sets out the two pre‑conditions to its exercise recognized by this court in Davidson, namely, that a child protection worker believe on reasonable and probable grounds: (i) that a child is in need of protection, and (ii) that there would be a substantial risk to the child’s health or safety during the time necessary to obtain a warrant under ss. 40(2).
[47] The Dryden Police rely on R. v. C.(M.), 2007 ONCJ 164, 220 C.C.C. (3d) 398, at para. 42, in support of their position that child protection workers may exercise their powers to enter premises without a warrant to conduct welfare checks, i.e., based on reasonable and probable grounds that a child may be in need of protection.
[48] However, there are conflicting authorities in the courts below concerning whether the position the Dryden Police advance is correct. See, for example, R. v. Ashkewe, 2007 ONCJ 152, 220 C.C.C. (3d) 423, at paras. 27, 30 and 41.
[49] Because of the other issues I have identified, it is unnecessary that I finally decide the question whether reasonable and probable grounds to believe a child may be in need of protection is sufficient to meet the requirements of s. 40(7)(a) of the CFSA in order to dispose of this appeal. Accordingly, I consider that that question is best left to another case in which the issue can be fully argued.
[50] In this case, in addition to the first problem set out above, I conclude that the motion judge’s finding that Ms. Gardner’s entry, and therefore the police entry, was lawful under s. 40 of the CFSA cannot stand because the motion judge made no finding, and there was no evidence before him on which to base a finding, that the requirements of s. 40(7)(b) of the CFSA were satisfied. That is, Ms. Gardner gave no evidence that she subjectively believed there would be a substantial risk to the child’s health or safety during the time necessary to obtain warrant under s. 40(2).
[51] I emphasize that the absence of this evidence and a finding by the motion judge are not technical deficiencies. Sections 40(7), (8) and (11) confer extraordinary powers on child protection workers to enter premises, including a dwelling house, without a warrant, by force if necessary, and with the assistance of police. While the goal of protecting children is undoubtedly of great importance, the extraordinary nature of the powers conferred under these sections requires that the conditions for exercising them be both strictly respected and strictly enforced. While I recognize that child protection workers and the police frequently encounter fluid, and difficult, situations in carrying out their mandate to protect children, even so, they must always turn their minds to the statutory conditions for exercising their extraordinary powers before doing so.
[52] I accordingly conclude that the trial judge’s finding that Ms. Gardner’s entry was lawful under s. 40 of the CFSA must be set aside and his further finding that the police entry was lawful because Ms. Gardner was lawfully entitled to request them to assist her must also be set aside.
[53] During oral argument, the Dryden Police argued that if Ms. Gardner’s evidence did not provide lawful grounds for the warrantless entry by police using force, the evidence of the police officers surely did. However, the Dryden Police failed to identify the evidence that would support that submission.
[54] In the result, I would set aside the summary judgment dismissing the appellants’ claims against the Dryden Police with respect to which the motion judge relied on his finding that the police entry into the appellants’ home based on reasonable and probable grounds was lawful. Those claims are the claims for: negligence, false arrest, false imprisonment, assault and battery, trespass and invasion of privacy and the appellants’ claims under ss. 7 and 9 of the Charter, which must proceed to trial. . Murphy v. Mullen
In Murphy v. Mullen (Ont CA, 2021) the Court of Appeal considered whether foreseeability applied to the quantification of damages, here in a trespass case where the issue was the anticipated future use of the trespassed-upon land. The court seems to support the forseeability conclusion that damages will be assessed where the trespassed-upon owner will use the land “in any reasonable and usual way” [para 25-50].
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