Eva Ravikovich's parents launched a $3.5-million lawsuit against the Ministry of Education and the owners and operators of the daycare in Vaughan, Ont.
They allege — in claims that have yet to be tested in court — that the ministry took no steps to ensure Eva's safety despite having received four complaints that claimed the daycare was overcrowded.
Court documents show the ministry asked to be removed as a defendant, arguing it had no duty of care toward Eva's family and any enforcement of unlicensed daycares is discretionary.
The ministry also said Eva's death was not a "reasonably foreseeable" consequence of its actions.
But Judge Mary Vallee says there are "genuine legal and factual uncertainties" that can't be answered without proceeding to trial.
"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, which is empowered to take investigative steps," she wrote in her decision.
"Interestingly, after Eva's death, the ministry did obtain a search warrant and entered the daycare. Apparently, it found 29 children and 14 dogs. The ministry then obtained an injunction to shut down the daycare. This suggests the ministry was capable of taking action," she said.
"In my view, the plaintiffs may be able to successfully establish proximity. It is not plain, obvious and beyond a reasonable doubt at this stage that the plaintiffs' claim cannot succeed."
Eva's parents, Ekaterina Evtropova and Vycheslav Ravikovich, are "pleased with the result and look forward to finding justice for their little girl," their lawyer, Patrick Brown, said in an email.
The family alleges the ministry failed to properly inspect, investigate and regulate the daycare and ought to have known it was being operated illegally.
It also claims the daycare was an unsafe environment and the operators failed to both monitor children for potential health issues and respond properly to an emergency situation.
Unlicensed daycare providers in Ontario can legally care for no more than five children under the age of 10, in addition to their own children.
None of the allegations have been proven in court.
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