Appeal Court Considers Class Action Against Child Aid Societies

The Ontario Court of Appeal is set to determine if pregnant women affected by controversial birth alerts – a method that led to babies being taken from their families – can file a class-action lawsuit against 49 children’s aid societies throughout the province.

This ruling could either reverse or change an Ontario common law that hasn’t been updated in many years.

If approved, this action would create a significant opportunity for vulnerable individuals to seek justice in future class actions, according to lawyers, while others claim it might negatively impact businesses in Ontario.

“[It’s] an unnecessary barrier and shouldn’t be the law of Ontario,” said Tina Yang, a partner with Goldblatt Partners LLP and an attorney for the plaintiffs.

Birth alerts occurred when child welfare agencies sent notifications to hospitals regarding pregnant individuals they considered “high-risk.” These alerts compelled health-care workers to notify authorities whenever these mothers sought medical assistance or gave birth. This process resulted in newborns being separated from their parents, which critics have condemned as unconstitutional and unlawful.

The Ontario government issued guidance in 2020 to terminate this practice, stating that these alerts disproportionately impacted Indigenous and racialized mothers. Of several birth alert class-action lawsuits launched across various provinces, Ontario’s is currently the most advanced.

Last year, a judge allowed the lawsuit to proceed against the Ontario government but denied it permission to include the 49 Children’s Aid Societies (CASs) also named as defendants.

During a two-day hearing at the Ontario Court of Appeal this week, Yang’s team argued that the case against the 49 societies should be reevaluated so affected families can hold accountable those agencies they believe caused them harm.

“We’re thankful to have clients who said, ‘Don’t let this be the end of the road for other people who faced birth alerts,'” Yang told CBC about co-plaintiffs G. G. and W. W., whose identities remain confidential due to a publication ban.

“We’re hopeful that the court agrees with us.”

Ontario an ‘outlier’

The decision involves five appeal court judges rather than the usual three because of its significance, according to Yang – asking for either an overturning or exception to a procedural rule not revisited since a 2002 ruling.

“I feel like it’s a big deal,” said Yang, adding that it’s “a potentially very significant [shift] in terms of promoting access to justice for class members.”

The procedural rule under consideration is known as the Ragoonanan principle, which mandates each named defendant must have a corresponding plaintiff with a direct claim against them. This rule is partially designed to protect defendants from ungrounded claims.

In this situation, Yang’s team would need to identify 49 individuals who have experienced birth alerts willing to publicly represent class actions against each agency – which lawyers argue is challenging due to power imbalances and vulnerabilities within this group.

There are also issues related to time, cost, emotional distress and stigma involved in pursuing such cases, explained Yang.

“When you stack all those things together.. it becomes virtually impossible for people to come forward,” she stated.

Tina Yang, a lawyer with Goldblatt Partners LLP, is part of a team representing two plaintiffs leading the Ontario birth alert class-action lawsuit. This week, Yang’s team argued against keeping 49 local agencies shielded from litigation. (Doug Husby/CBC)

During this week’s court session, Yang’s team maintained that all CASs issued birth alerts over several years and stressed that vulnerable members should be protected behind named plaintiffs.

They described Ontario as an “outlier” because other provinces do not enforce such strict rules or provide means for vulnerable groups seeking class actions like this one.

The attorneys representing the 49 child welfare agencies countered by stating each CAS operates independently with its own directors and service demographics.

They claimed this lawsuit attempts too broadly by targeting all 49 agencies when only two named plaintiffs were directly affected by Native Child and Family Services of Toronto and Chatham-Kent Children’s Services.

They suggested it was speculative that other potential plaintiffs wouldn’t be willing to come forward.

The CAS lawyers declined CBC’s request for an interview.

G. G., a co-plaintiff in the class action learned in 2016 that Native Child and Family Services of Toronto had issued a birth alert for her. (Sook-Yin Lee/CBC)

‘Downstream consequences’

Diverse third-party organizations expressed their views both supporting or opposing this move during court proceedings.

Together with groups like Women of Class and The Class Action Clinic at Windsor University , the Canadian Civil Liberties Association (CCLA) urged modifications or abandonment of the Ragoonanan principle.

In its submission , the CCLA argued that “overshoots its purpose”and “acts as an escape hatch for wrongdoers.”

Lawyer Golnaz Nayerahmadi represented CCLA in court , stating how crucial class actions have been in allowing vulnerable communities pursue accountability addressing systemic wrongs or Charter violations.

Nayerahmadi added changing Ragoonanan could offer “extremely helpful” options enabling future groups seeking justice.

“It could have significant consequences on enhancing access rights regarding justice for marginalized communities ,” Nayerahmadi noted.

The Ontario Court of Appeal located in Toronto has Chief Justice Michael Tulloch noting earlier on Tuesday; that his five-judge panel will announce their final decision soon , which may take months according To what Yang says.(Colin Perkel/ )

However ; the Ontario Chamber Of Commerce cautioned overturning such rules risks exposing provincial businesses towards much more litigation associated costs ahead.

The chamber advised justices need consider impacts on ongoing lawsuits emphasizing there are potential financial strains inflicted upon business sectors involved.

Province also appeals

The Provincial Government appealed certification ruling given regarding lawsuit filed versus itself.

Its legal representatives contended ontario isn’t responsible concerning independent CAS operations despite regulatory oversight authority existing.

Attorneys reiterated broad duty owed public doesn’t equate specific ‘duty care’ towards expectant women involved.

Ministry overseeing Children Community Social Services avoided media inquiries citing pending case details under review still ongoing.

Chief Justice Michael Tulloch reserved judgement awaiting responses indicating timeline extends into coming months depending circumstances observed preceding verdict decisions made now & beyond.

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