Friday, July 27, 2007

Thoughts on Syl Apps

The Supreme Court of Canada ruled today that parents can't sue child protection workers for negligently taking their children from them. The Court thinks that allowing such a thing would put these workers in a conflict, since their paramount duty should be to the children. This may be the right conclusion. But I have a few thoughts:

*Once again, the whole Anns/Cooper analysis doesn't do any work. Lawyers have to keep the policy considerations going into the second part of the first stage separate from those going into the first part of the second stage, but it's all nonsense. The law would be as certain, and quite a bit clearer, if the court just said it will create new duties of care when it thinks it is a good idea and not when it doesn't. As I understand it, this is roughly the law in England.

*The Supreme Court decided there was no duty "on the pleadings." In other words, without a trial or even affidavit evidence. The Court ruled that there would be no case even if everything the plaintiffs claimed were true. At least formally, that was the issue in the Court of Appeal: the majority didn't necessarily say that parents can sue child protection types in these circumstances, but that there should be a trial to figure this out.

I would have liked to have seen some discussion of this process point. I tend to agree with the SCC that judges should do as much work as early on in the civil process as they can: it isn't fair to either plaintiff or defendant to make everybody put in evidence and have a trial if there is no cause of action anyway. But, of course, if you need evidence to decide something, then you should wait for the evidence.

The implication of the SCC deciding the "duty of care" issue on the pleadings is therefore that it doesn't need evidence. But we are also told that the question of whether to recognize a new duty of care is principally one of policy, and involves questions of expectations, representations and reliance. Dwelling only on policy, it is at least conceivable that child protection experts or law-and-economics experts could give evidence on how allowing actions like this could affect child protection decisions. The alternative seems to be to rely on uninformed judicial intuition, which is really all we get in the decision.

*The first point and the second point are related. If the Court's "duty of care" jurisprudence focused on whether and what kind of evidence would support a new duty of care, it would be less vacuous.

*On the policy issue, I'm not sure the SCC is right. Child protection is so difficult -- everyone agrees -- because mistakes in either direction have tragic consequences. If the authorities don't take kids into care when they should, abuse will likely continue. If the take kids into care when they shouldn't, they destroy families and, in light of the statistics about children in the wardship of the state, make their lives hellish (including creating risks of abuse). Decisions are difficult, but mistakes are symmetrically disastrous.

There is an argument that protection workers making good faith decisions shouldn't be sued in negligence at all. Judges who make protection orders can't be. Police and prosecutors who put people in jail can't be. But if protection workers can be sued for one kind of mistake (not removing a child against its best interests), it should also be possible to sue them for the opposite mistake. Otherwise, you are creating a "safe harbour" in one direction, which is a terrible incentive to create. It is true, however, that a child can still sue for its loss in overzealous protection.

Case Comment on Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38

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