Executive Summary: Key Legal and Evidentiary Issues

• Carol Harper's proposed class action challenges the Government of Manitoba's use of "birth alerts" — written notices distributed to hospitals by Child and Family Services agencies regarding pregnant women whose children might be in need of protection at birth.
   
• The defendant brought a motion to dismiss on the basis that the plaintiff's claim was filed outside the applicable limitation period under The Public Officers Act and The Limitations of Actions Act.
   
• Central to the limitation period dispute is whether the defendant fraudulently concealed the use of birth alerts generally and, specifically, whether it concealed the issuance of the birth alert in the plaintiff's case so as to toll the limitation period until September 2021.
   
• The defendant sought leave under King's Bench Rule 21.01 to file the affidavit of Sherry Lyn Lam, an Issues Management Specialist for the Child Protection Branch of the Manitoba Department of Families, to support its motion to dismiss.
   
• The plaintiff objected that 26 paragraphs of the 47-paragraph affidavit and most of its 39 exhibits were inadmissible on grounds of irrelevance, hearsay, and prejudice outweighing probative value.
   
• The court admitted the affidavit in large part, excluding only paragraphs 34–36 and exhibit LL, which related to a CBC News video report for which no proper court record was established.

Facts of the case

Carol Harper gave birth to a child at St. Boniface Hospital in Winnipeg on January 8, 2019. Winnipeg Child and Family Services had issued a birth alert regarding the plaintiff on December 18, 2018. As a result, the agency was notified when the child was born, and on January 10, 2019, the child was apprehended from the hospital. The plaintiff subsequently agreed to transfer guardianship of the child to her aunt. The practice of issuing birth alerts was brought to an end in Manitoba on July 1, 2020.

The plaintiff says she did not know that a birth alert had been issued regarding her pregnancy until sometime in September 2021, when she obtained copies of her hospital records from St. Boniface Hospital. On March 15, 2022, she filed a claim alleging that the issuance of the birth alert breached her privacy rights, was not based on lawful authority, and breached her rights under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. She seeks to have the action certified as a class proceeding under The Class Proceedings Act, C.C.S.M., c. C130, on behalf of all persons who have been subject to birth alerts.

Policy, legislative, and statutory provisions at issue

At the time the plaintiff's claim was filed, the limitation period for claims against "public officers" was governed by s. 21(1) of The Public Officers Act, C.C.S.M., c. P230, which required claims to be filed within two years of the occurrence of the act complained of, with no element of discoverability. The plaintiff acknowledges she missed that deadline, as well as the time frame under Part II of The Limitations of Actions Act, R.S.M. 1987, c. L150. However, she alleges that the defendant fraudulently concealed the use of birth alerts from the public generally, and in particular concealed the issuance of a birth alert in her case, with the result that the limitation period was tolled until September 2021 when she first discovered the birth alert.

The defendant's motion to dismiss is brought under King's Bench Rule 21.01, which requires the defendant to obtain leave to file an affidavit. The hearsay provisions at issue include the common law rule admitting party admissions, the business records exception under s. 49 of The Manitoba Evidence Act, C.C.S.M., c. E50, and the information and belief rule under King's Bench Rule 39.01(4). The Child and Family Services Act also requires agencies to maintain records according to standards established by the Director of Child and Family Services (s. 7(1)(q)), and such records are routinely admitted as business records.

Reasoning and analysis

Greenberg J. assessed the admissibility of the Lam affidavit against the central issues on the motion to dismiss: when the plaintiff first knew that a birth alert was used in the apprehension of her child, and whether the defendant fraudulently concealed the practice. The plaintiff's credibility on the first issue was identified as a key consideration.

On relevance, the court found that all of the information in the Lam affidavit — including the plaintiff's history with CFS, the circumstances surrounding the apprehension, publicly available government information about birth alerts, and media articles about the practice — was probative of either when the plaintiff knew about the birth alert or whether the defendant deliberately concealed it. The court rejected the plaintiff's argument that she could limit the evidence to only those portions of her own affidavit that assisted her case, finding that the defendant was entitled to tender evidence challenging assertions the plaintiff had made under oath, including her assertion that she raised her first child in a safe and culturally appropriate home. The CFS records regarding her first child were admitted as admissible business records under s. 49 of The Manitoba Evidence Act, given that they were created in the usual and ordinary course of business.

The court also dismissed the plaintiff's collateral fact rule objection, finding no authority for the proposition that the rule bars a moving party from tendering evidence that responds to assertions made by the opposing party on the same motion. Media articles spanning January 2018 to February 2020 were admitted as non-hearsay — introduced not for their truth but to demonstrate that birth alerts were the subject of public discourse, which was directly relevant to the fraudulent concealment allegation.

Regarding the CBC News content, the court distinguished between the YouTube video report (paragraphs 34–36 and exhibit LL) and a related written CBC article published on February 1, 2020. As to the video and its transcript, the court found that a link to a YouTube website is subject to "reference rot" and does not create a proper court record; the transcript itself was not admissible evidence but only an aide to interpreting a recording that had not been properly introduced. Accordingly, paragraphs 34–36 and exhibit LL were struck. The written CBC article and its surrounding paragraphs were admitted, however, because the plaintiff's statement quoted in it — denying prior knowledge of birth alerts — was admissible as a party admission, and the court found the double hearsay concern was outweighed by the truth-seeking function of the court and the importance of not excluding reliable evidence that directly bore on the plaintiff's core assertion.

Ruling and overall outcome

The court ruled that the Lam affidavit, comprising 47 paragraphs and 39 exhibits, is admitted with the exception of paragraphs 34–36 and exhibit LL, which related to the CBC YouTube video and its transcript. The defendant was largely successful on this motion. Costs of the motion were not determined at this stage; the court directed that costs should be awarded to the party who is ultimately successful on the motion to dismiss.