Daycare Negligence and Potential Government Exposure

Daycare Negligence and Potential Government Exposure

Written by: Patrick Brown, Principal Partner and Jamie Davison, Student-At-Law


On July 8, 2013, two-year-old Eva Ravikovich was left for 7 hours by an unlicensed daycare worker in the back seat of an SUV in Vaughan, Ontario, causing her death.

In an effort to ensure that this never happened again,  Eva’s parents brought a civil lawsuit against the not only the operators but also the province of Ontario, represented by the Minister of Education for their failure to properly inspect, investigate and regulate the unlicensed daycare, despite numerous complaints.

At the time, this was a novel claim. The Minister of Education had never been held to owe a duty of care to the children or the parents of children in unlicensed daycares in Ontario. Therefore, in response to the Plaintiffs’ claim, the Minister brought a motion to have the case thrown out of court on the ground that they owed no duty to Eva and her parents  and therefore could not be found responsible.

Patrick Brown, Principal Partner at McLeish Orlando, successfully argued that the Minister owed a duty of care to Eva and her family and won the right to carry on with the case.  This opened the door not only to a successful outcome for the family, but it also resulted in the government passing the new Child Care and Early Years Act.  The government would go on and revamp the daycare system.  A new system that seeks  protection and accountability.  Below is a brief overview of how the decision came about and how novel claims can be pursued.


After Eva’s lawsuit was launched, The Minister argued that this claim disclosed no reasonable cause of action as the minister owed no duty of care to Eva or her family. While it may seem odd that the Minister of Education for the Province of Ontario, responsible for enforcing the Day Nurseries Act[1] regulating unlicensed childcare, would argue that they owe no duty to Eva, at the time, no such a duty had been recognized.

To establish a duty of care, the Court applies a two-part test:

  1. Does the relationship between the plaintiff and the defendant disclose sufficient foreseeability and proximity to establish a prima facie duty of care?[2]

Under the first stage of the test, the Court will first determine if the claim advanced describes a relationship that is the same as or analogous to a relationship that courts have previously recognized. In Eva’s case, there was no previously recognized relationship that was analogous to that of the Minister and a child in an unlicensed daycare; this was a novel claim.

Where the claim does not fall within an established or analogous category, the analysis shifts to whether the harm alleged was reasonably foreseeable and the degree of proximity between the parties.

In establishing a prima facie duty of care, there is an added wrinkle when the tortfeasor is a government actor. The inquiry will focus initially on whether the alleged duty arose explicitly or by implication from their statutory scheme and if the duty is otherwise negated by statute. In this case, the Day Nurseries Act, was not determinative as to any duty owed by the Minister, and therefore the Court had to explore the specific circumstances of the interactions between the Minister and Eva and her family within the context of the legislative scheme to determine whether a sufficiently close and direct relationship existed between the parties to justify the imposition of a prima facie duty of care.

2. Once a prima facie duty of care has been found, are there any residual policy concerns which ought to limit or negate that duty of care?[3]

A prima facie duty of care will be negated only when the conflict, considered together with other relevant policy considerations, gives rise to a “real potential for negative policy consequences”[4]. These considerations must be more than speculative. There must be a real potential for negative consequences of imposing the duty of care. An example of a residual policy consideration is a risk of indeterminate liability. The courts do not want to establish a duty owed where the result would be overbroad and could lead to indeterminate liability. In Eva’s case, the Courts would shy away from establishing a duty of care for the Minister where this duty would be owed to the universe of children attending daycares in Ontario as their liability would be overbroad and indeterminate. However, it may not be overbroad for the Courts to establish a duty owed to a narrow and distinct group of potential victims along with other children attending this particular daycare.


Nearly two years following Eva’s death, the decision from the Superior Court of Justice was heard dismissing the Minister’s motion and allowing the case to continue.

Justice Vallee’s reasons for dismissing the motion to strike were as follows[5]:

  • Based on the allegations within the suit, the ministry knew,
    • It had received four complaints between May 2, 2012, and November 16, 2012.
    • Its staff members did a site visit and saw seven children under the age of 10 entering the daycare.
    • The Ministry wrote a letter to the daycare operator dated November 26, 2012, stating that it was operating in contravention of the Day Nurseries Act.
    • One month later the Ministry received another complaint, this time that 17 children were being cared for at the daycare.
    • Even if the Ministry is not required to take enforcement steps, it may be that the Ministry ought to have reported the matter to the local health unit empowered to take investigative steps.
  • The Ministry is capable of taking legal action:
    • After Eva’s death, the Ministry obtained a search warrant and entered the daycare to find 29 children and 14 dogs.
    • The Ministry obtained an injunction to shut it down.
  • This is a novel situation:
    • The court must consider, assuming the facts pleaded to be true, whether there is any reasonable prospect of successfully establishing proximity on the basis of statute or otherwise.
    • The relationship is not required to be close and direct to support a finding of proximity; rather, the question is whether the actions of the wrongdoer had a close or direct effect on the victim and if the wrongdoer should have had the victim in mind as someone who might be harmed.
    • The Plaintiffs may be able to successfully establish this proximity; it is not plain and obvious and beyond a reasonable doubt at this stage that the claim cannot succeed. There are uncertainties that cannot be answered at the pleadings stage.


Justice Vallee’s decision is significant.

Recently in Alberta, an ecoli outbreak in various daycares has called into question whether proper oversight is given to those looking after our children.

As more and more incidents of negligence and neglect in unlicensed daycares come to light, the decision of Justice Vallee becomes increasingly relevant for the potential of government exposure to liability. If you or someone you love has been injured in an unlicensed daycare, our team of personal injury lawyers at McLeish Orlando is here to help. Contact our office for a free consultation to discuss your claim.




[1] R.S.O. 1990, c. D.2

[2] Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 at para. 20 (S.C.C.)

[3] Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 at para. 20 (S.C.C.)

[4] Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 at para. 43 (S.C.C.)

[5] Evtropova v. Minister of Education, 2015 ONSC 3321

Patrick Brown


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