Chatham-Kent Children’s Services v. T. (R.)

In this child protection matter, the Respondent Mother appealed an order of the Trial judge , after the judge refused to compel the Applicant, the Chatham-Kent CAS (“the Society”), to provide disclosure of the names and addresses of private investigators hired by it, together with copies of correspondence, retainer agreements and exchanges between them since November, 2012.

The Respondent’s Motion was brought in December and heard on January 28, 2014, as the trial was set to resume in February 2014.

Background

Child protection proceedings in this matter were ongoing for many years prior to the commencement of the trial. At one point, the Society’s concerns about the mother seemed to be resolved, and pleadings were filed by the Society seeking to terminate their involvement. However, the three children were apprehended shortly thereafter, in April 2010, after the Society discovered that the Respondent Mother was allowing the Respondent Father to visit with the children contrary to a Court Order removing the Father’s access until he completed a personality assessment. Visits between the Father and the children were discovered after the Society hired private investigators to shadow the family. Subsequent to the children be apprehended, the Society amended its pleadings to claim Crown wardship with no access. At the time of the Motion, the Respondent Mother had been successful in expanding her access to mid-week and weekend access, including unsupervised overnights, however the Order restricting the Respondent father’s access continued in effect.

After the Mother’s access was expanded in November 2012, she began to notice persons, recognized by her as private investigators, watching her residence and taking photographs and videos of the children. As a result, the Respondent Mother’s counsel served a request for information (Form 20) on the Society, pursuant to Rule 20(3)(b) of the Family Law Rules, requesting particulars of the surveillance.

Rule 20(3)(b) states:

In a child protection case, a party is entitled to obtain information from another party about any issue in the case,

(b) by Affidavit or by another method, in which case the party shall serve the other party with a request for information (Form 20).

The Respondent Mother’s request was ignored by the Society, which prompted a motion by the mother under Rule 20(5) to compel disclosure of the information requested. On the motion before the trial judge, the Society did not file any evidence that would either confirm or deny the existence of the surveillance evidence.  Although surveillance evidence was relied on in April 2010 when the children were apprehended, so such evidence was presented in the more recent motions. As Justice Heeney noted,

Counsel for the Society fairly concedes that she is not in a position to state for the record that surveillance evidence does not exist. The inference can therefore be drawn that the surveillance disclosed no evidence of any breach by the mother, and for that reason it did not form part of the Society’s case against her.

Accordingly, the trial judge held:

The party engaging in a process of surveillance may find nothing, or may for other reasons, not seek to rely upon it. In such cases, the engagement and the resulting work product will not be disclosed. However, it is certainly also irrelevant to the proceedings, as it amounts to no evidence. The fact that surveillance took place at certain times with negative results is in my view irrelevant, and a waste of court’s time and resources to be considered.

The right of the parents is to have disclosure of the case they have to meet. Any suspected surveillance is not part of the case they have to meet at this time…I see no prejudice to the parents in this case in preparing their defence on the basis that there may have been surveillance with no appreciable result.

Appeal

On appeal, the Respondent Mother raised two grounds:

1. That in making his ruling the trial judge failed to apply the standards of disclosure enunciated by the SCC in R. v. Stinchcombe (1991) and other related cases; and
2. The trial judge erred in finding that the information did not have to be disclosed because it is protected by litigation privilege.

Justice Heeney began by examining the three factors enunciated in Rule 20(5) that a court should consider in determining whether a party should be ordered to disclose information:

1. Whether it would be unfair to the party who wants the questioning or disclosure to carry on with the case without it;
2. Whether the information is not easily available by any other method; and
3. Whether the questioning or disclosure will not cause unacceptable delay or undue expense.

With regard to the first ground of appeal, Justice Heeney was ultimately of the opinion that the trial judge had made an “error of law” with respect to this finding that the “right of the parents is to have disclosure of the case they have to meet.” As Justice Heeney recognizes,

…the law is clear that the obligation to disclose includes not only evidence and information which the Society intends to use in its case against the parents, but also evidence and information which it does not intend to use…but which might be “of some use” to the parents in their own case.

Justice Heeney further concluded that the trial judge erred in drawing the inference that the surveillance that took place with negative results was “irrelevant”, finding rather that although the surveillance did not turn up any evidence of a breach of the Court Order it may have assisted the parents in their defence.

Justice Heeney further acknowledged that the mother is faced with the difficult prospect “of proving a negative: that a breach did not take place,” suggesting that the surveillance evidence may of some assistance to her. In the end, Justice Heeney opined that “it cannot be said at this stage how useful [the information] will be to the mother’s case, because the nature of the information is unknown. What is clear is that it cannot be said that the evidence is entirely irrelevant and of no use to the mother.

With respect to the Mother’s second ground of appeal, Justice Heeney held that litigation privilege, which attaches to documents obtained by the solicitor or his agent from third persons, if they were obtained for the dominant purpose of litigation, either commenced or anticipated, clearly applied in this instance (as litigation was not only contemplated but underway).

However, the question that remained for the court was whether the information contained in the privileged documents must be disclosed. In the end, Justice Heeney concluded that the case law developed under Rule 31.06(1) of the Rules of Civil Procedure applies to the request for information under Rule 20(3) of the Family Law Rules. It follows, therefore, that although the documents produced from the surveillance are privileged, the Society is obligated to disclose the informational component of that evidence.

As such, the Respondent Mother’s appeal was allowed, and that Society was ordered to produce an Affidavit containing the particulars of any surveillance done on the mother since November 2012 including: dates, times and precise locations; particulars of the activities and observations made; and the names and addresses for service of the persons who conducted the surveillance.