IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110429

Docket: 02-5057

Registry:
Victoria

Between:

Benjamin John Sivertson,
by his guardian ad litem, Pamela Dawn Sivertson, and the said Pamela Dawn
Sivertson and Darren James Sivertson

Plaintiffs

And:

Kerri-Lea Dutrisac,
Capital Regional District, Capital Health Region, Her Majesty the Queen in
Right of the Province of British Columbia, Ivanka Lupenec, Diane Hart, Shelly
Harnadek, Mary-Jane Kellington, and Marcia L. Thorneycroft

Defendants

Before: The Honourable Madam
Justice Boyd

Reasons for Judgment

In
Chambers

1.0        
Introduction:

[1]          
The defendant, Capital Health Region (“CHR”) applies for an order
pursuant to Rule 9-7 dismissing the plaintiffs’ claim against it.  The
plaintiffs oppose the application.  The co-defendant, Kerri-Lea Dutrisac
(“Dutrisac”) takes no position.  I must note here that more recently, the
plaintiffs have consented to a dismissal of their action against the defendant
Crown as well as the five personal defendants who are employees of the CHR, Ivanka
Lupenec, Diane Hart, Shelly Harnadek, Mary-Jane Kellington, and Marcia L.
Thorneycroft, on the basis that in the event the Court finds any of the
personal defendants at fault, the CHR will be vicariously liable for their
negligence.

[2]          
Very briefly this is an action in which the plaintiffs claim damages for
brain injury suffered by the infant plaintiff on June 11, 2001 while in
the care of Dutrisac, who was the owner and operator of a licensed daycare
(“Kare Bear Child Care”).  The plaintiffs say that Dutrisac was negligent in
her care of the infant plaintiff, with the result that he fell from a couch in
the daycare, striking his head and sustaining a brain injury.  In the
alternative the plaintiffs have said that the brain injury was caused by
Dutrisac shaking the infant plaintiff.  (Dutrisac was charged criminally with
assaulting the infant, but she was ultimately acquitted following two trials). 
However, now, in response to the defence medical legal reports, the plaintiffs
allege that the infant plaintiff’s brain injury was primarily caused by
Dutrisac’s negligence in failing to properly supervise the infant (such that he
fell from the couch), which injury was then exacerbated, after the fall, by her
gentle jostling or shaking of the child to keep him from losing consciousness.

[3]          
The plaintiffs’ claim against the CHR is that its licensing inspectors
were negligent in their inspection of the daycare and in failing to follow up sufficiently
on matters which were reported to them or brought to their attention during the
course of their licensing of the daycare and their annual inspections.

2.0        
The parties’ positions:

[4]          
The CHR’s position on this application is three-fold:

(1)         
that under the applicable legislative administrative scheme there is no
private law duty of care owed to the infant plaintiff;

(2)         
in the alternative, if there is such a private law duty of care, it is
abrogated for public policy reasons;

(3)         
in the alternative, that the plaintiffs are unable to prove any
negligence on the part of the CHR, having filed no expert evidence to support
such an allegation; and

(4)         
in the alternative and in any event, the plaintiffs have  failed to
prove that the CHR’s negligence caused the plaintiffs’ loss.

[5]          
The plaintiffs oppose the application on the following grounds:

(1)         
that this application is not suitable for disposition under Rule 9-7;

(2)         
that the application will not assist in the efficient resolution of the
proceeding;

(3)         
that it would be unjust to decide the issues on this application;

(4)         
that assuming the application may be heard under Rule 9-7, a
private law duty of care does apply in this case.  In other words, whatever
statutory immunity is available under the legislation, it is not available
where the defendant’s negligence is so overwhelming as to amount to bad faith;

(5)         
that given the admissions made by the licensing inspectors on discovery,
the Court may find ,as a matter of common sense, that negligence has been
proven and that no expert evidence is required to prove same;

(6)         
that causation has been proven.

[6]          
Since the issue of whether this application is suitable for disposition
under Rule 9-7 is logically the first issue for consideration, I will
begin with that issue and then proceed to the balance of the issues raised.

3.0        
The facts:

[7]          
For the purposes of this application, the CHR’s counsel has set out the
following statement of facts in its Written Submission, supported by the
Affidavit of Ms. Harnadek and the records appended to the Affidavit of Ms. Villar. 
I will replicate that summary of the facts below:

11.       The
Capital Health Region’s licensing department’s first contact with Ms. Dutrisac
was on February 14, 1996 when licensing conducted a visit to the home
following receipt of a call from a member of the community inquiring if the
daycare was licensed.  There were three children in care when the daycare was
inspected.  Ms. Dutrisac was not aware of the requirement to be licensed
and expressed the desire to become licensed.  Accordingly, an application for
licence was received by the Capital Health Region on February 21, 1996.

12.       The
licensing staff obtained all of the necessary documentation from the applicant
including the application, floor plans, summary of qualifications, references
and approval from the local fire marshal.  A discipline policy was submitted by
the applicant which included a recognition that she would not subject the
children to verbal, emotional or physical mistreatment.  Three very positive
telephone reference checks were obtained.

13.       A
licensing officer conducted an inspection of the proposed daycare on
March 4, 1996 and a further inspection on March 25, 1996 to confirm
that all of the requirements from the initial inspection had been met.  They
had been and accordingly, the first interim permit was issued on March 26,
1996.

14.       Thereafter,
inspections were conducted as scheduled.  The results of the routine
inspections were routinely good.  The licensing officers were satisfied that Ms. Dutrisac
was operating her family daycare in compliance with the legislation and were
pleased with her interactions with the children and the children’s apparent
comfort with Ms. Dutrisac.

15.       On
June 12, 1996 an inspection revealed that the licensee had four children
under the age of three in her care when the legislation allowed for no more
than three children under the age of three.  One of the children, however, was
to turn three by the end of the month.  Given that fact, the contravention was
not considered egregious and the operator was spoken to about ensuring
compliance with the legislation.  The inspection otherwise noted that the
operator was very conscientious and thorough with regard to licensing
requirements.  Because she had been in technical non-compliance, rather than a
permanent permit an interim permit was issued.

16.       A
subsequent inspection on November 7, 1996 determined that all items from
the previous inspection were addressed and no health or safety hazards were
noted.  A full community care facility licence was therefore issued.

17.       In
April, 1997 an 8½ month old child apparently sustained a fracture of his
arm while in the daycare.  There were no indications or suspicions of any
wrongdoing or negligence on the part of Ms. Dutrisac.  Licensing had
conducted two routine inspections since issuing the first interim permit and
both inspection reports gave a low hazard rating and noted no health or safety
concerns.  They further found in their reports that the children appeared very
comfortable and that Ms. Dutrisac was very attentive to the needs of the
children and had excellent rapport with them.  The parent of the injured child
had no concerns about the care provided by the caregiver and continued to use
the daycare for her child.  The licensing officer discussed the injury with Ms. Dutrisac
and reviewed with the caregiver the importance of supervision of children at
all times, especially young children.  The licensing officer discussed incident
report requirements with Ms. Dutrisac as she had not filed an incident
report with regard to this matter in a timely fashion.  The plan was to
continue to monitor the facility through ongoing inspections.

18.       In
January, 1997 a parent expressed a concern to licensing about the number
of days the daycare was closed over Christmas and thought that perhaps Ms. Dutrisac
was going to claim for a subsidy.  The licensing officer followed up with Ms. Dutrisac
to discuss issues such as communication with parents and professional conduct.

19.       In
December, 1997 a neighbour expressed a concern about noise but did not
want to make a complaint.  Noise concerns are not within the jurisdiction of
licensing.  However, the licensing officer did review the music program with Ms. Dutrisac.

20.       In
March, 1999 the licensing staff, while in the community, heard that the
daycare was in operation while Ms. Dutrisac was on maternity leave.  Licensing
conducted an inspection and confirmed that, in fact, the daycare was closed and
there were no children observed in care.

21.       In
July, 1999 licensing received an anonymous call from a parent of a child
in the daycare wanting advice regarding the smell of paint from the house; that
Ms. Dutrisac did not take the children outside to play; Ms. Dutrisac
did not close the daycare long enough while she was ill; and she charged
parents for days when the daycare was closed.  Licensing provided advice to the
parent and followed up on the parent’s concerns, meeting with Ms. Dutrisac
and educating her with regard to communication with parents and confirming
that, in fact, Ms. Dutrisac had carefully chosen a non-toxic paint and had
advised all of the parents that she would be painting as she felt it important
to keep the daycare in good repair.  She also advised that she was taking the
children to a nearby park while her lawn was being re-seeded.

22.       In
November, 1999 licensing received a complaint from a parent regarding
napping issues, feeding issues, diaper-changing concerns and a concern that Ms. Dutrisac
was inaccessible by telephone.  The licensing officer conducted a follow-up
inspection and was not able to substantiate the parent’s concerns.  The
inspection revealed no health or safety concerns.

23.       In
February, 2001 licensing received an anonymous call from a parent asking
about licensing requirements and indicating that she thought that there were
too many young children in care.  She also felt that there was a lack of
confidentiality on the part of the caregiver.  She also thought that the house
was dirty.  A licensing officer conducted a follow-up inspection and could not
substantiate any of the complainant’s concerns.  The number and ages of the
children in care were in compliance with the legislation and the home met
hygiene and cleanliness standards.  The licensing officer in her report
indicates that the complaint may have been in retaliation for Ms. Dutrisac
calling the Ministry for Children and Families regarding the complainant’s care
of her children.

24.       These were the only complaints
made to the licensing officers prior to Benjamin Sivertson’s injury.  There had
never been any concerns or suspicions that Ms. Dutrisac was in any way a
danger to the children in her care; quite the opposite.  All of her
interactions with the children that were observed by the licensing officers
were seen to be appropriate.

4.0        
Is this application appropriate to be heard pursuant to Rule 9-7(11)(b)(i)?

[8]          
There is no dispute that the new Rule 9-7 is effectively a restatement
of the old Rule 18A and that accordingly the jurisprudence concerning the
old Rule is applicable.  The  relevant portions of Rule 9-7 provide as
follows:

(11)      On an application heard before or at the same time as the
hearing of a summary trial application, the court may

(a)  adjourn the summary trial
application, or

(b)  dismiss the
summary trial application on the ground that

(i)   the issues raised by the summary
trial application are not suitable for disposition under this rule, or

(ii)  the summary trial application will
not assist the efficient resolution of the proceeding.

(15)      On the
hearing of a summary trial application, the court may

(a)  grant judgment in favour of any
party, either on an issue or generally, unless

(i)   the court is unable, on the whole
of the evidence before the court on the application, to find the facts
necessary to decide the issues of fact or law, or

(ii)  the court is of the opinion that it
would be unjust to decide the issues on the application

[9]          
Mr. McKnight relies on both Rule 9-7(11) and (15) and submits
that the application is not suitable for disposition under the rule, that the
application will not assist in the efficient resolution of the proceeding, and
finally that it would be unjust to decide the issues on this application.

[10]       
Relying on Kaba v. Cambridge Western Leaseholds Ltd. (1997), 43
B.C.L.R. (3d) 80 (CA), the plaintiffs assert that an action is not suitable for
summary trial where the plaintiff claims damages in negligence and there are
issues of relative fault between defendants.  In my view Kaba is of no
assistance here.  There are no claims by either of the defendants against the
other.  There are no third party claims.  The action in negligence against the
CHR is distinct from the action in negligence against Dutrisac.  Thus I am not
persuaded that here the judge would be required on the summary trial
application to make findings of fact that may embarrass the Court hearing the
subsequent issues against the co-defendant Dutrisac.

[11]       
Further the plaintiffs submit that the Court should not grant judgment
under Rule 9-7 where the plaintiff has elected trial by jury (Hung v
Gardiner, 2003 BCCA 257); where the claim is a substantial one (Mattu
v. Mattu 2001 BCCA 140, or where the action is factually complex (Cannaday
v. Sun Peaks Resort Corp. (1998), 44 B.C.L.R. (3d) 195).

[12]       
I note that in Hung the Court of Appeal reiterated that filing a
jury notice does not bar an application for summary trial.  The Court held
however that it will be an important factor to consider in assessing whether
the matter is appropriate for summary trial, and in the case of a defamation
claim (as was the Hung action), “it may hold an extra value”.

[13]       
Likewise, in Mattu, the Court of Appeal acknowledged that
“(w)hile the amount potentially involved is a matter the summary trial judge
may properly take into account when determining whether to proceed under the
Rule, it is not determinative.  Many cases involving substantial claims have
been heard and disposed of under the rule.”

[14]       
The plaintiffs also raise the issue of whether this action is too
factually complex to be disposed of under Rule 9-7.  On a review of the
evidence relating to the history of the licensing of Dutrisac’s daycare, the
inspections over time, and the events on the date of the incident itself, I am
not persuaded that factually, this is a very complex case, at least in terms of
liability.  In my view, the most complex issue is that of causation,
specifically whether the negligence of the defendant Dutrisac caused or
contributed to the infant plaintiff’s brain injury in issue.  This is a matter
I will address later in the context of both the CHR’s and Dutrisac’s
application to strike the jury.  Suffice it to say that there is a large body
of medical expert evidence to be considered and weighed in respect of that
issue.

[15]       
However, regarding the plaintiffs’ action against the CHR, the issue of
causation is not complex.  Simply put, the issue is but for the alleged
negligence of the CHR in its inspections of the subject daycare and its
continued licensing of the daycare, would the infant plaintiff have suffered
his brain injury?

[16]       
The plaintiffs’ most significant challenge to this application concerns
their submission that the Court will be unable to determine the facts necessary
to adjudicate this summary trial application.  The CHR’s counsel submits that
the facts may be gleaned from the Affidavit of Ms. Shelley Harnadek sworn
March 15, 2011, attached to which affidavit is Exhibit A, being the
entirety of the CHR file regarding the subject daycare.  Ms. Harnadek was
the licensing supervisor for the defendant CHR from June 2006 until
October 2007.

[17]       
She deposes at paragraphs 9 and 10 of her Affidavit:

Now produced and shown to me and marked as Exhibit “A”
to this my Affidavit is a true copy of the licensing file kept by the Capital
Health Region with regard to the Kare Bear facility.  This file contains
documentation in the possession of Vancouver Island Health Authority with
regard to the operation of the daycare.  It outlines all of our interactions with
the daycare which are required to be documented by us.

This daycare licensing file was
kept in the ordinary course of business of the Capital Health Region
(subsequently Vancouver Island Health Authority).

[18]       
The CHR’s counsel submits that those records are admissible as business
records in this proceeding.  The plaintiff’s counsel disputes the admissibility
of the CHR licensing file as business records.  While he concedes the defendant
CHR has met the first branch of the test (that is, that the records are kept in
the ordinary course of business), he says the affiant has nevertheless failed
to affirm that the records were made at the time an event occurred or within a
reasonable period thereafter, as required by s. 42(2) of the Evidence
Act.

[19]       
I am satisfied, given the sworn statement in Ms. Harnadek’s affidavit,
that the CHR records are indeed business records made in the “usual and
ordinary course of business”.  As she has deposed, the file contains all
interactions with the daycare which must be documented by the CHR and indeed,
on a review of the records, it is clear that, with the exception of the two
incident reports regarding the Gautier child prepared by Dutrisac after the
incident, the records are contemporaneous ones.  These are the records which
have been produced since the outset of this action and have been referred to by
all parties throughout the discovery process.  Nothing in the records comes as
any surprise to the plaintiffs.  Nor has there been any suggestion that the
records are incomplete, other than plaintiffs’ counsel’s recent complaint that
he has not received any of the computer records which he has requested.  The
CHR apparently began to keep computer records concerning the various daycare
facilities, commencing a few months before this incident.  In any case, the
CHR’s counsel has confirmed that a search has been made and that there are no
computer records of any kind in this case, other than the single sheet which
has been produced.

[20]       
In addition the CHR’s counsel has put before the Court Ms. Villar’s
affidavit sworn March 11, 2011, attached to which is the expert report of Mr. Greg
Ritchey.  Attached to Mr. Ritchey’s report is a summary of the evidence of
the five licensing inspectors in question, which facts Mr. Ritchey has
assumed in providing his expert opinion.

[21]       
The plaintiffs’ counsel has submitted that even assuming these “facts”
are before the Court, there are conflicts in the evidence which cannot be
resolved by the summary trial judge.  Accordingly, he says that this matter may
be inappropriate for disposition under Rule 9-7.  In this regard, the
plaintiffs’ counsel has only identified two particular conflicts in the
evidence.

[22]       
First he notes that in her affidavit, Mrs. Harnadek deposes that
after she learned of the incident involving the Gautier child, she “would have told”
her supervisor, Ivanka Lupenec, about the incident.  However on her discovery,
she testified that she could not recall having “actually physically” taken the
complaint form concerning the matter to Lupenec.  In my view, this is not a
true conflict in the evidence, since the documents clearly record that Harnadek
referred the matter to Lupenec on May 16, 1997, resulting in Lupenec
actually conducting a visit to the daycare facility on May 23, 1997 (see
Exhibit A to Harnadek Affidavit, document #82).  Whether or not Harnadek
physically walked the complaint form to Lupenec’s office is of no particular
significance.

[23]       
The second alleged conflict concerns Dutrisac’s evidence on her
discovery that she could not recall whether any investigation of the Gautier
incident had occurred after she filed the two incident reports relating to the
incident.  The plaintiffs’ counsel submits that this evidence contrasts with
para. 8 of Mr. Ritchey’s report which notes that:

The parent of the injured child
had no concerns about the care provided by the caregiver, and continued to use
the day care for her child.  These factors would all support the outcome of the
Licensing’s investigation into this incident, which was to discuss and
review with the caregiver the importance of supervision of children at all
times, especially young children, discuss incident reporting requirements with
the caregiver, and continue to monitor the facility through ongoing
inspections.

[24]       
Plaintiffs’ counsel submits that this summary of evidence is inaccurate
since, according to Dutrisac’s evidence, she was unaware of any investigation
of the Gautier incident had occurred.

[25]       
I am not persuaded that there is any conflict in the evidence.  As the
CHR’s counsel points out, Dutrisac’s evidence was accurate in the sense that in
fact there was no investigation of this incident immediately following the
event.  The incident involving the Gautier child only came to the attention of
the CHR licensing authorities when that child’s parent telephoned the CHR in
May 1997.  That call led the licensing authorities to then contact
Dutrisac, following which they assisted her to prepare the two incident reports
which were subsequently filed.  Although the incident reports were dated April 14,
1997, being the date of the incident, they were not actually filed until later
in May 1997.  As Mr. Ritchey has assumed in his report, the
investigation consisted of meeting with Dutrisac to discuss and review the
importance of supervision of children at all times, discuss incident report
requirements, and finally to continue to monitor the facility through ongoing
inspections.

[26]       
During submissions, Mr. McKnight made reference to excerpts from
the examinations for discovery of the five licensing inspectors.  He suggested
that contrary to the summary of the facts prepared by CHR’s counsel, these
excerpts demonstrate that both individually and collectively, the licensing
inspectors failed to discharge their duty of care to protect and promote the
health, safety and well-being of children.  He says the excerpts of discovery
evidence prove that the licensing inspectors ought to have been aware of and
acted upon a series of reports and complaints about events which occurred in
the daycare months and years prior to the incident in question.  He says that
those reports and complaints vividly illustrated that the defendant Dutrisac
was overwhelmed and was not suited to operate a daycare with the number of
children who were under her supervision and care—a fact which the CHR
licensing inspectors failed to grasp.

[27]       
Having reviewed those excerpts of evidence, I am unable to reach such a
conclusion.  Further, having compared those excerpts with the summary of facts
prepared by CHR’s counsel, I am unable to identify any significant errors which
render this application for summary trial inappropriate for determination at
this juncture.

4.1        
Will the hearing of this application assist in the efficient resolution
of the proceeding – Rule 9-7(11)(b)(ii)?

[28]       
In effect, the plaintiffs’ counsel submits that the Court has been left to
sift through a large volume of affidavits and discovery evidence, and that in
these circumstances, there is a substantial risk that time and effort will be
wasted by the Court.  In my view, in a case in which the trial is set to
proceed before a judge and jury for a period of several weeks commencing in May 2011,
in circumstances where the CHR contemplates calling all five licensing
inspectors to review the history of this daycare, an expert to address
liability and many experts to address the damages issues, the resolution of
these issues in the course of a summary trial application lasting just under a
day-and-a-half offers the prospect of an efficient resolution of at least that
action.

4.2        
Would it be unjust to decide the issues on this application– Rule 9-7(15)(a)(ii)?

[29]       
Under this heading, the plaintiffs submit that the CHR has delayed in
bringing this application and that it is unfair and unjust for this application
to now be brought, approximately one month before trial, at a time when it
would be best for the parties to focus on trial preparation.  The plaintiffs’
counsel notes that the CHR has been “threatening” to bring a summary trial
application since 2006.  In his view, the CHR has offered no explanation for
its decision to wait to bring this application until the eve of trial.

[30]       
On a review of the Affidavit of Ms. Villar, legal secretary and
assistant to Ms. Woods, I reject the complaint that the CHR intentionally
delayed in bringing this application.  A review of that material indicates the CHR
has always taken the position that absent bad faith, the Community Care
Facilities Act, R.S.B.C. 1996, c. 60 prohibits any action for damages
being brought against the licensing officers.  This issue was raised by CHR’s
original counsel, Ms. Slater, and then reiterated by Ms. Woods,
commencing in August 2010, after the discoveries of the licensing officers
were completed.  Repeated requests were made by the CHR counsel for the
plaintiffs to consent to the dismissal of the action against the licensing
officers.  Failing that, she advised that this application would be set down
for hearing.  The CHR’s counsel arranged for a Case Management Conference to be
held before Bernard J. on November 18, 2010, at which time he ordered
that the summary trial application be heard before April 15, 2011.  I find
that the CHR’s counsel diligently continued to make efforts to find dates for
the application suitable to both the Case Management Judge as well as all
counsel.  Those efforts continued throughout late 2010 and early 2011,
ultimately resulting in the dates in question being selected for the summary
trial before me.  There is, in my view, no evidence whatsoever of any delay.

[31]       
Plaintiffs’ counsel further complains that it would be unjust to permit
the summary trial application to proceed when the CHR has delayed in the
production of some of the documentation and information requested on
discovery.  I note that the plaintiffs’ requests for production of various
documents and information arose in early July 2009, immediately following
the discoveries of the various CHR licensing officers.  So far as CHR’s counsel
was aware, all of the information requested was produced under cover of a
letter dated October 1, 2009, in which letter the CHR’s counsel asked that
plaintiffs’ counsel alert her to any items which might be missing.  It is
significant that the plaintiffs’ counsel did not respond to this letter for
some considerable time.  The first request from plaintiffs’ counsel for further
documents was not made until April 4, 2011—1½ years later.  On receipt of
that request, that information was promptly produced.  In any case, none of the
information which was most recently produced is relevant to this application.

[32]       
Finally, the plaintiffs’ counsel complains that the CHR intentionally
delayed in delivering its expert report (the Ritchey report) until the second
last day before the expiry of the defence expert report deadline, less than six
weeks prior to trial.  The Ritchey report addresses the issue of whether the
CHR and its employees (the five licensing inspectors involved) met the standard
of care expected of a daycare licensing facility and daycare licensing
inspectors in their handling of Dutrisac and her daycare facility.  The plaintiffs’
counsel complains that as a result of the late delivery of this report, he will
likely be unable to find an expert to offer a rebuttal opinion.  Accordingly he
submits it would be unjust to permit the summary trial application to proceed
without the plaintiffs having an opportunity to “level the playing field”.

[33]       
I have some difficulty with this latter complaint.  Clearly, before
filing its own expert report, the defendant CHR would wait to first receive the
plaintiffs’ own expert report, so as to determine the case to be met, whether
its own defence report required amplification or whether there were fresh
issues raised by the plaintiffs which now required a response in an amended
defence report.  The plaintiffs’ failure to retain their own expert with instructions
to prepare an expert report is not an omission to be laid at the feet of the
defendant CHR.  The plaintiffs’ counsel presumably made their own deliberate
decision not to adduce such expert evidence and indeed, during submissions, Mr. McKnight
insisted that, in his view, no expert evidence was required to prove negligence
in this case.  If the plaintiffs are now prejudiced by that deliberate
decision, this is not for the defendant CHR’s account.

[34]       
On a review of all the circumstances here, and applying the test set out
in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36
B.C.L.R. (2d) 202 (C.A.), I find that this is an appropriate case for
disposition under the summary trial rule.  In essence there are no conflicts in
the evidence.  There is no issue concerning the credibility of any of the CHR’s
employees.  Nor can the evidence regarding liability be characterized as
complex.  The primary issue for resolution is a question of law—that is whether
the CHR owed any private law duty of care to the infant plaintiff.  Assuming
that issue is ultimately resolved in favour of the CHR, the action against the CHR
must be dismissed and the balance of the issues fall away.

5.0        
Does a private law duty of care apply in this case?

[35]       
The CHR submits that in carrying out their duties in this case, its medical
health officers acted in a quasi-judicial fashion as prescribed by the
provisions of the Community Care Facility Act, R.S.B.C. 1996, c. 60
and the accompanying Childcare Licensing Regulations.  Since this
legislative scheme is central to the defence position, I will set out the
relevant provisions below:

4    (1)  Subject
to this Act and the regulations, a medical health officer may issue to an
applicant a licence to operate a community care facility if the medical health
officer if of the opinion that

(a)  the applicant,

(i)   if a person other than a
corporation, is of good character and has the training, experience and other
qualifications required under the regulations, and the personality, ability and
temperament necessary to operate a community care facility in a manner that
will maintain the spirit, dignity and individuality of the person being cared
for.

(2)  If a medical health officer is
of the opinion that an applicant has complied with all of the requirements of
subsection (1) that may significantly affect health or safety and is in
the process of complying with the other requirements of subsections (1),
the medical health officer may issue to the applicant, on terms and conditions
the medical health officer considers necessary or appropriate , one or more
interim permits to operate a community care facility for a period not exceeding
a total of one year.

6    If the
director determines following a hearing that a licensee or permit holder has
contravened an enactment of British Columbia or of Canada or a term or
condition of the licence or interim permit, the director may attach terms or
conditions to, suspend or cancel the licence or interim permit.

8    A licensee
or interim permit holder must do all of the following:

(a)  only employ at a community care
facility persons of good character who meet the standards for employees
specified in the regulations;

(b)  operate the community care facility
in a manner that will maintain the spirit, dignity and individuality of the
persons being cared for;

(c)  operate the community care facility
in a manner that will promote the health and safety of the persons in care.

14  The medical health
officer appointed under the Health Act for an area of British Columbia
must do the following:

(a)  investigate every application for a
licence to operate a community care facility within that area and report to the
director respecting the application, or any other matter relevant to it
requested by the director;

(b) investigate every complaint that an
unlicensed community care facility is being operated within that area, or that
a community care facility being operated within that area under a licence or
interim permit does not fully comply with this Act or the regulations, and
report the result of the investigation and make a recommendation to the
director;

(c)  carry out inspections, whenever the
medical health officer considers it necessary, of every community care facility
that is being operated within that area under a licence or interim permit and
report the results of the inspections to the director;

(d)  perform additional duties in the
administration of this Act that the Lieutenant Governor in Council may direct
by regulation.

Appeals to the board

15  (2)  An applicant for a license,
interim permit or certificate or a licensee, a permittee or a certificate
holder may appeal to the board under this section if

(b)  the director has….

(ii)  attached terms or conditions to,
suspended or cancelled a licence or an interim permit under section 6 or 7
or a certificate under section 9(2),

(c)  a medical health officer has refused
to issue a licence or interim permit under section 4…

16  (1)  A community care facility must be
open at all times to visitation and inspection by the director or a medical
health officer, who may

(a)  examine
any part of the facility,

(b)  call for
and inspect the financial and other records of the community care facility, and

(c)  inquire
into all matters concerning the community care facility, its employees and
guests, including any treatment or rehabilitation program being carried out in
the community care facility.

19  (1)  An action for damages does not
lie and must not be instituted against the director, a medical health officer
or a member of the board or a panel or a person acting on behalf or under the
direction of any of them because of anything done or omitted in good faith in
the performance or intended performance of any duty or the exercise or intended
exercise of any power under this Act or the regulations.

 (2)  Subsection (1) does not
absolve the government or an employer from vicarious liability for an act or omissions
for which it would be vicariously liable if this section were not in force.

[36]       
Relying on the decision of Callaghan J. in Harrington (Guardian
ad litem) v. Pappachristos, [1992] B.C.J. No. 2600 (B.C.S.C.), the CHR
submits that the medical health officers in the case at bar were exercising
quasi-judicial powers under the 1996 Community Care Facility Act.  I
note here that the only difference between the relevant portions of the
legislation considered in Harrington (the 1979 Act) and the
legislation in issue here, concerns the administrative scheme.  The powers
which were afforded the Provincial Childcare Licensing Board under the 1979 Act
have now been delegated, under the 1996 Act, to the Director.  The “medical
health officers” under the 1996 Act are charged with the same powers as the
“supervisors” under the 1979 Act, as well as the additional duty of issuing
daycare licenses.  That power was vested in the Board under the 1979 Act.

[37]       
In Harrington, the infant plaintiff was injured at a licensed
daycare.  The infant plaintiff sought to add individual members of the
Provincial Childcare Licensing Board and health care workers employed by the
City of Vancouver as defendants to the action.  As in the case at bar, the
plaintiff alleged negligence on the part of the Board and its licensing
officers in continuing to license the daycare as well as negligence on the part
of the supervisors in reporting to the Board and making recommendations on
licensing matters.

[38]       
In Chambers, the Master refused to allow the proposed defendants to be
added as defendants to the action.  He held that since these individuals
exercised quasi-judicial powers under the Community Care Facility Act,
absent bad faith or malice on their part, no cause of action could be brought
against them.  Although the proposed amendments to the Statement of Claim
alleged bad faith, the materials filed in support of the application did not
provide any facts to substantiate that plea.  Accordingly the application was
dismissed.

[39]       
The Master’s decision was upheld on appeal by Callaghan J.  He
rejected the plaintiff’s submission that the Licensing Board’s or the
supervisors’ actions ought to be classified as operational rather than
quasi-judicial in nature.  In doing so he referred to the provisions of the Community
Care Facility Act and noted at page 4:

The legislation
does not set out a list of factors or specific criteria which applicants either
meet or fail to meet; rather, the legislation calls for the Board members to
weigh evidence and to exercise their discretion.  In doing so they will
undoubtedly affect individual rights, specifically, the right to operate a
child care facility.  The Board, therefore, in determining whether an
individual seeking a licence is entitled to it or not, is acting in a
quasijudicial capacity.

He continued at page 4-5:

Seven of the proposed defendants are
supervisors whose authority comes within s. 9 of the Community Care
Facility Act which requires the medical health officer to investigate every
application for a licence, to investigate complaints that an unlicensed
community care facility is being operated, and to carry out inspection of
licensed operating facilities.  In each instance they are to report back to the
Board.  The master concluded at pp. 22-23 of his reasons:

Likewise, the supervisors in conducting their duties
pursuant to the instructions received from the Board and in carrying out
investigations or monitoring the operation of the facility, are also performing
part of that quasi-judicial function.  Their reports and the results of their
investigation or monitoring processes form the basis, at least in part, upon
which the Board issues, renew [sic], or revokes licences.  Their function in
that regard cannot be viewed as operational within the meaning or test set out
in Just v. B.C.

[40]       
The plaintiffs’ counsel seeks to distinguish Harrington on the
basis that in that case, as Callaghan J. noted at page 2 : “(t)he
plaintiff seeks to add the individual Board members…solely on the
basis that they…licensed and continued to license (the) day care center.  The
supervisors are sought to be added solely in respect of their functions
in reporting to the Board and making recommendations on licensing matters.”  Mr. McKnight
submits that in the case at bar, the plaintiffs’ allegations are much broader
and instead focus on both quasi-judicial (licensing) as well as operational
(inspection) functions.  I am not persuaded that this distinction is
applicable.  I reject that reasoning.  Clearly, in Harrington, the Court
considered the licensing supervisors’ inspections to be part of the
quasi-judicial process.  As Callaghan J. noted at page 3:

On each occasion
the supervisors must investigate and report back to the Board.  Consequently
they are linked directly to the Board and, as an arm of the Board, are part of
the quasi-judicial process.  They are required to be fact finders in order to
enable the decision making body to function.  ….

[41]       
Relying on the decisions of the Supreme Court of Canada in Cooper v.
Hobart, 2001 SCC 79 and Edwards v. Law Society of Upper Canada,
2001 SCC 80, the CHR submits that in the case at bar, where a public
authority is exercising its powers under a statutory scheme, applying the Anns
test (from Anns v. Merton London Borough Council [1978] A.C. 728
(U.K.H.L.), the Court ought to find there is insufficient proximity between the
CHR and the plaintiffs to give rise to any private law duty of care.  Even
assuming a prima facie duty of care can be established, it submits that at
the second stage of the Anns analysis, such a duty of care is negated
for policy reasons, since the impugned conduct is quasi-judicial in nature.

[42]       
As I understand it, the legal principles here are not in dispute.  Those
principles were summarized by the Supreme Court of Canada in the recent
decision of Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5.  At
para 39, the Court adopted a summary of the principles articulated by the Court
in D.(B.) v. Children’s Aid Society of Halton (Regions), 2007 3 SCR 83
(S.C.C.) at paras. 26-30:

·                    
The statute is the foundation of the proximity analysis and
policy considerations arising from the particular relationship between the
plaintiff and the defendant must be considered.

·                    
The fact that an alleged duty of care is found to conflict with
an overarching statutory or public duty may provide a policy reason for
refusing to find proximity.  Both Cooper and Edwards are
examples.  In Cooper, a duty to individual investors on the part of the
Registrar of Mortgage Brokers potentially conflicted with the Registrar’s
overarching public duty; in Edwards, the proposed private law duty to
the victim of a dishonest lawyer potentially conflicted with the Law Society’s
obligation to exercise its discretion to meet a myriad of objectives.

·                    
A statutory immunity provision may also, as in Edwards,
indicate the Legislature’s intention to preclude or limit private law duties.

[43]       
The plaintiffs’ counsel does not dispute the application of the Anns
test in either Cooper or Edwards.  However he says that in the
case at bar, as in Fullowka, the medical health inspectors’ relationship
with the young clients of the daycare was such that, even applying the Anns
test, a private law duty of care did arise.

[44]       
In Fullowka, the Court considered the liability of the government
of the North West Territories for the alleged negligence of a mining regulator
in failing to order the closure of a mine following threats of violence by
striking miners.  Four months prior to the explosion the regulator wrote to his
government Minister detailing concerns about the safety of the mine and seeking
support for an order to close it.  The regulator subsequently received legal
advice that he did not have the statutory authority to order the closure of the
nine to prevent criminal acts.  Thus no closure order was issued until after
the fatal explosion.

[45]       
The court held that while the mining safety regulators’ role under the
regulatory scheme was analogous to that of the Registrar of Mortgage Brokers
and the Law Society in Cooper and Edwards, the relationship
between the government inspectors and the miners was considerably closer and
more direct than the relationships in issue in Cooper and Edwards. 
At paras. 43-45, the Court summarized the three factors which led to that
conclusion:

43        The persons to whom mining inspectors are said to
owe a duty – those working in the mine – is not only a much smaller but also a
more clearly defined group than was the case in Cooper or Edwards.
There, the alleged duties were owed, in effect, to the public at large because
they extended to all clients of all lawyers and mortgage brokers.

44        In addition, the mining inspectors had much more
direct and personal dealings with the deceased miners than the Law Society or
the Registrar had with the clients of the lawyer or mortgage broker in Edwards
and Cooper.  As pointed out in Hill, in considering whether the
relationship in question is close and direct, the existence, or absence, of
personal contact is significant.  …As the trial judge found in this case,
visits by inspectors to the mine during the strike were "almost
daily" occurrences, 11 official inspections were conducted and at any time
a tour of the mine was required, the inspector would be accompanied by a member
of the occupational health and safety committee (para. 256).  There was
therefore more direct and personal contact with miners than there was with the
clients in either Cooper or Edwards.

45  Finally, the inspectors’
statutory duties related directly to the conduct of the miners themselves.  This
is in contrast to the Law Society in Edwards or the Registrar in Cooper
who had no direct regulatory authority over the claimants who were the clients
of the regulated lawyers and mortgage brokers.

[46]       
Mr. McKnight submits that in the case at bar, the CHR’s medical
health officers (like the mining inspectors in Fullowka, and the Barreau
du Quebéc in Finney v. Barreau du Quebéc, 2004 SCC 36,)
had a direct personal relationship with the children under the defendant
Dutrisac’s care at the daycare facility.  He notes that from time to time, when
a parent lodged a complaint, he or she dealt directly with the medical health
officers and their supervisors.  He notes that on discovery, each of the five
medical health officers in issue admitted that from time to time, the
inspectors had direct dealings with the parents regarding complaints.

[47]       
While there is no dispute that on occasion the medical health officers
dealt with complaints regarding Dutrisac’s daycare, on a review of the
discovery evidence tendered, I am not persuaded there is any evidentiary
foundation for a finding that these medical health officers/daycare licensing
inspectors ever formed any relationship with the infant plaintiff or his
family.  There is no evidence before me of any direct communications between
any of the licensing inspectors and the infant plaintiff or his family prior to
the event when the infant plaintiff fell off a couch at the daycare.  In
contrast to the situation in Finney none of the actions of the medical
health officers can be said to have been “made in the relationship of proximity
with a clearly identified complainant”.

[48]       
Further, in the case at bar, as in Edwards and Cooper,
none of the licensing inspectors ever had any direct regulatory control over
the infant plaintiff or his family or any of the attendees of the daycares
under their jurisdiction.  Thus, in my view, none of the exceptions found in Fullowka,
which grounded the finding of a private law duty of care, exist here.

[49]       
To the contrary, in this case, as in Cooper, “the factors giving
rise to proximity, if they exist, must arise from the statute under which the
(Director) is appointed.  That statute is the only source of his duties,
private or public.”  Here, the statute does not impose a duty of care on the
Director or the licensing inspectors to children and parents who are dealing
with daycare operators regulated by the Act.  Rather the Director’s duty is to
the public as a whole.

[50]       
As in Cooper, I find that a duty to individual children and
parents would potentially conflict with the Director’s overarching duty to the
public-at-large.  A review of the relevant powers and duties of the Director
under the Act confirms this conclusion.

[51]       
The overall statutory scheme governing the licensing of daycare
facilities provides an efficient framework to ensure the operation of community
care facilities “in a manner that will maintain the spirit, dignity and
individuality of the person being cared for “(s. 4(1)(a)(i)).

[52]       
Under s. 6, if the Director determines, following a hearing, that a
licensee is in contravention of the Act or Regulations, the Director may attach
terms or conditions to the license, suspend the license or cancel the license. 
This can be done without a hearing where the Director has reasonable grounds to
believe that the health or safety of children cared for at the daycare is at
risk and the Director may attach terms or conditions to the licence or suspect
the licence, but he must commence a hearing as soon as practicable.

[53]       
Under s. 15 of the Act, a daycare operator may appeal the
suspension or cancellation of her licence to the Community Care Facility Appeal
Board and may appeal any term or condition attached to his license.  The
decision under appeal may be stayed pending the outcome of the proceeding.

[54]       
Under s. 14 of the Act, the medical health officer must (a)
investigate every application for a daycare licence; (b) investigate every
complaint that an unlicensed community care facility is being operated or that
a licensed facility does not fully comply with the Act or Regulations; (c)
carry out inspections, whenever the medical health officer considers it
necessary and to report the results to the Director.

[55]       
Under s. 16(1) every community care facility must be open at all
times to visitation and inspection by the Director or a medical health officer
who may examine any part of the daycare call for and inspect records, and
inquire into all matters concerning the daycare.

[56]       
Finally s. 19(1) exempts the Director and medical health officer
from any action for damages ‘because of anything done or omitted in good faith
in the performance or intended performance of any duty or the exercise or
intended exercise of any power under (the) Act or the regulations.”

[57]       
As in the Cooper decision, the CHR and its inspectors must
balance a myriad of competing interests when dealing with the licensing and
inspection of daycares, including the daycare owner’s interest in the continued
operation of her business and the parents’ and the public’s interest in the protection
of children in the care of the daycare owner.

[58]       
In my view, this balancing of interests is inconsistent with the
imposition of a private duty of care.  Thus, on a review of all of the authorities,
and a consideration of the legislation in issue, I reject the notion that any
private law duty of care was owed by the CHR (and its employees) to the infant
plaintiff and his family.

[59]       
If however I am in error, and it is found that such a private duty of
law does arise in the circumstances of this case, then I nevertheless find that
the application of the second stage of the Anns test yields no different
result.  As the Ontario Court of Appeal held in Williams v. Canada (Attorney
General), 2009 ONCA 378, at para. 17, at the second stage :

…the court considers whether
there are "residual policy considerations" that militate against
recognizing a novel duty of care.  …These are policy considerations that
"are not concerned with the relationship between the parties, but with the
effect of recognizing a duty of care on other legal obligations, the legal
system and society more generally".

[60]       
In my view, any private law duty of care which may arise in this case
would be negated for overriding policy reasons as in the Cooper case. 
This is because (i) the licensing officers were exercising both policy and
quasi-judicial functions such that any decision required the balancing of both
public and private interests.  The Director must act fairly or judicially in
removing an operator’s license and this is potentially inconsistent with a duty
of care to children and families; (ii) the Director must make difficult
discretionary decisions in an area of public policy.  His decisions are made
within the limits of the powers conferred on him in the public interest; and
(iii) if there was a private duty of care owed by the Director to the
children and parents, it would effectively create an insurance scheme for all
those children attending licensed daycares within the Province, at great costs
to the taxpaying public.  As the Court held in Edwards, there is no
indication here that the Legislature intended that result.  Indeed the
statutory immunity from liability provision suggests the contrary.

6.0        
Bad faith:

[61]       
Finally, as I understand the plaintiff’s counsel’s submission, it is
that the statutory framework in question and particularly the statutory
immunity provision at s. 19(1) of the Act is of no assistance to the CHR,
since the evidence supports a finding that the medical health inspectors were
acting in bad faith in failing to respond to the reports and complaints
about events which had occurred in the Dutrisac daycare in the months and years
prior to the date when the infant plaintiff was injured.

[62]       
The plaintiffs rely on the decision of Melvin J. in M.D.
(Guardian ad litem of) v. British Columbia, 2000 BCSC 700.  There the
infant plaintiff’s guardian ad litem brought action against the Province and K,
a foster parent, for injuries suffered by the child when she was shaken by K. 
The child was born addicted to methadone as a result of drug use by her
mother.  An inadequate fostering parent assessment led to the child being
placed with K, a foster parent who did not have the proper qualifications for the
child’s care.  The Ministry staff had failed to advise the social workers
properly and the social workers in turn had not given appropriate information
to the caregiver.  The Ministry staff had also not properly inquired into K’s
qualifications or suitability, nor had they determined whether the litigation
guardians or the child’s aunts were preferable caregivers.

[63]       
The Court rejected the application of s. 101 of the Child Family
and Community Service Act which provides immunity from liability “for
anything done or omitted in good faith in the exercise or performance or
intended exercise or performance of (a) a power, duty or function conferred by
or under this Act”.  The Court held that the statutory immunity from liability
was not available to the Ministry staff since they had failed to consider the
facts they ought to have known before the decision was made to place the child
with K.

[64]       
In my view, the M.D. decision has no application here.  First,
given the direct relationship between the various Ministry social workers and
the infant plaintiff, there was no question that there was a duty of care owed
to the infant plaintiff.  Indeed at para. 40, the Court held “there can be
no doubt that the Ministry has a duty of care towards children it takes into
its custody.  This duty, of course, must be carried out by social workers in
the employ of the Ministry.”  In the case at bar, as I have discussed earlier,
there was no such close relationship between the licensing inspectors and the
infant plaintiff or his parents such as to give rise to a private law duty of
care.

[65]       
Secondly, the  statutory immunity section considered in M.D. was
that which had previously been considered by the Court in the context of the
duty of a Superintendent of the Ministry of Children to exercise his statutory
discretion with due care—that is “to honestly consider the facts he knew or
ought to have known, before he makes his decision”.  (D.B. v. British
Columbia (Superintendent of Family and Child Services) (1997), 30 B.C.L.R.
(3d) 201 (B.C.C.A.) at para. 52).  The Court held that the lack of
communication and inquiry between the social workers demonstrated a “failure to
consider the facts that the Ministry staff ought to have known before the
decision was made to place the child with K.”  In the Court’s view this
“failure to consider” as well as the Ministry’s social workers apparent efforts
to deliberately thwart the infant plaintiff’s relatives’ bid to seek custody reflected
a lack of good faith within the meaning of D.B., thus robbing the
Ministry staff of the protection of the statutory immunity provision.

[66]       
I am not persuaded that the good faith expected of a Superintendent of the
Ministry of Children, who is directly responsible for the health, welfare and
education of all children under his statutory custody, is akin to that which
can be expected of either the Director or the medical health officers
responsible for carrying out the statutory mandate of ensuring the proper
operation and licensing of day care facilities in the Province under the Community
Care Facilities Act.  In the context of the latter legislation,  I believe
that as in Finney the concept of bad faith:

…can and must be given a broader
meaning that encompasses serious carelessness or recklessness.  Bad faith
certainly includes intentional fault.  …However, recklessness implies a
fundamental breakdown of the orderly exercise of authority, to the point that
absence of good faith can be deduced and bad faith presumed.  The act, in terms
of how it is performed, is then inexplicable and incomprehensible, to the point
that it can be regarded as an actual abuse of power, having regard to the
purposes for which it is meant to be exercised.  (para. 39)

[67]       
In the case at bar, there is no evidence in my view to suggest anything
approaching bad faith on the part of any of the medical licensing inspectors. 
Accordingly, I am not persuaded that the defendant CHR or its employees can be
denied the protection of this statutory immunity from liability.

7.0        
Negligence/Causation:

[68]       
Since I have found there is no private law duty of care owed to the plaintiffs,
it is unnecessary to consider the final issues—that is (i) whether the plaintiffs
have proven that the CHR or its daycare licensing inspectors were in breach of
the standard of care expected of them in this case and (ii) whether, the
plaintiffs have proven on a balance of probabilities that but for the alleged
negligence of the CHR and its licensing inspectors the infant plaintiff’s
injury would not have occurred.

[69]       
That said, I must at least note that the plaintiffs have filed no
evidence of any kind, sworn either by an expert or a lay witness, to suggest
that the CHR or its medical licensing inspectors were negligent in the carrying
out of their duties.

[70]       
 For its part, the CHR relies on the expert report of Mr. Ritchey
which confirms that the complaints which were made about the Dutrisac daycare
and which were investigated by the licensing staff prior to the incident, would
not have been sufficient to result in a revocation of the Dutrisac license.  He
has opined that the CHR and its employees met the standard of care expected of
childcare licensing officers in their dealings with the daycare operated by
Dutrisac.

[71]       
The plaintiffs have submitted that the Court ought not to rely on the
Ritchey report since it is based on a summary of the facts which is not
supported by the evidence before the Court, and in some cases relies on statements
in which there is a conflict in the evidence.  Mr. McKnight submits that
he ought to be entitled to a full cross examination of Ritchey before his
opinion should be admitted in evidence and considered by the Court.  As I noted
earlier, I am not persuaded that the facts here are in dispute or that there is
any real conflict in the evidence.  Thus I see no reason for any cross
examination of Ritchey.

[72]       
 In my view, the Court here is effectively faced with the uncontroverted
expert opinion of Ritchey, which has not been challenged by any expert on the
plaintiffs’ side.  In these circumstances, I find that to the extent it is
necessary to consider the issue of negligence, the Ritchey report provides a
sound foundation for a finding that neither the CHR or the medical inspectors
failed to meet the applicable standard of care applicable to childcare
licensing officers.

[73]       
Finally, as to the issue of causation, there is no evidence that but for
the alleged negligence of the CHR and its licensing inspectors, this injury
would not have occurred.  The evidence is that none of the inspections
performed by the licensing officers nor anything reported to them should have
led to either the closure of the daycare or to any communication to any of the daycare
parents that they should have any concerns about their children while under
Dutrisac’s care.

8.0        
Conclusion:

[74]       
On a review of all the evidence and the submissions of counsel, I am not
persuaded that the plaintiffs have proven that the defendant CHR or its
employees owed any private duty of law to the plaintiffs or that even assuming
they do, they failed to meet the standard of care expected in the
circumstances.  Accordingly, the defendant CHR must succeed on this Rule 9-7
application.  This action is dismissed against the CHR.  Costs will follow the
event.

“The
Honourable Madam Justice Boyd”