COURT FILE NO.: 26/05

DATE: 20060119

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

GREER, EPSTEIN AND sWINTON JJ.

B E T W E E N:

PATRICIA K. SILVERTHORNE

Applicant

• and -

THE ONTARIO COLLEGE OF SOCIAL WORKERS AND SOCIAL SERVICES WORKERS

Respondent

Deborah L. Ditchfield, for the Applicant

M. Jill Dougherty, for the Respondent

HEARD at Toronto: November 16, 2005

REASONS FOR JUDGMENT

SWINTON J.:

1The applicant Patricia K. Silverthorne seeks judicial review of a decision of the Complaints Committee (“the Committee”) of the Ontario College of Social Workers and Social Services Workers (“the College”) dated December 12, 2003.

2The primary issue in this application is whether the Committee breached a duty of procedural fairness in failing to provide certain documents to the applicant before it made its decision disposing of a complaint against her.

Background Facts

3The applicant is a social worker employed by the Children’s Aid Society of Brant (“CAS”). She was the subject of a complaint to the College by JC, the father of a teenage girl who had been her client and who was made a Crown ward in March, 2002. In his letter of complaint dated March 22, 2003, he alleged that the applicant was directly and negligently responsible for allowing his daughter to live at risk for eight weeks and that she attempted to conceal this negligence. He also alleged that she lied in affidavits filed in court proceedings.

4Section 24(1) of the Social Work and Social Service Work Act, 1998, S.O. 1998, c. 31 (“the Act”) requires the Complaints Committee to consider and investigate written complaints regarding the conduct or actions of members of the College. Subsections 24(3) and (4) set out the information that must be provided to the member. They read:

24(3) No action shall be taken by the Complaints Committee under subsection (5) unless,

(b) the member of the College whose conduct or actions are being investigated has been notified of the complaint and given at least 30 days in which to submit in writing to the Committee any explanations or representations the member may wish to make concerning the matter;…

24(4) Notice of a complaint under clause (3)(b) shall include reasonable information about any allegations contained in the complaint.

5After considering the information received, the Committee must do one of the following pursuant to s. 24(5):

(a) direct that the matter be referred, in whole or in part, to the Discipline Committee or the Fitness to Practise Committee;

(b) direct that the matter not be referred under clause (a);

(c) require the person complained against to appear before the Complaints Committee to be cautioned;

(d) refer the matter for alternative dispute resolution if the Committee considers it appropriate to do so and the complainant and the member agree; or

(e) take any action it considers appropriate in the circumstances and that is not inconsistent with this Act, the regulations or the by-laws.

Subsection 24(8) expressly states that “except as provided by this section, the Complaints Committee need not hold a hearing or afford to any person an opportunity for a hearing or an opportunity to make oral or written submissions before making a decision or giving a direction under this section”.

6In this case, the applicant was given a copy of the original two page letter of complaint and the attached four page summary of allegations, along with 229 pages of supporting documents. The College records show that she was sent two further letters from the complainant dated June 10 and June 16, 2003, although the applicant denies receiving the June 16 letter.

7The applicant responded to the complaint by a letter dated May 16, 2003, and her employer sent a 30 page submission in support of the applicant dated July 28, 2003.

8The complainant sent a further letter to the College dated September 12, 2003, This letter was not forwarded to the applicant, as Marlene Zagdanski, the Director, Complaints and Discipline, reviewed the document and determined that it did not raise any new allegations or information relevant to the complaint.

9The Committee considered the complaint and issued reasons in which it said that it had reviewed the material set out in Schedule A to its reasons. Included in the material before the Committee was a Complaint Summary prepared by College staff.

10The Committee determined that none of the allegations made by the complainant should be referred to the Discipline Committee or the Fitness to Practise Committee. However, in its reasons, the Committee stated that some of the applicant’s alleged conduct might, if proven, be found to have contravened Principle III of the College’s Standards of Practice, which requires that “College members ensure that professional services are provided responsibly to those persons, groups or organizations seeking their assistance”. Interpretation 3.2 under Principle III requires that College members deliver client services “in a timely and reasonable manner”. Specifically, the Committee stated (at p. 6 of the reasons),

The Committee has carefully considered this allegation in the context of this Standard of Practice and Interpretation, and finds that there is unanswered information which might support a finding that the Member’s actions in relation to [the complainant’s daughter], in the approximate 6-week period, between October 4, 2001 and November 13, 2001, were neither timely, responsible nor reasonable.

According to the applicant’s submissions to the Committee, October 4 was the day she learned that the daughter was living in the community on her own, and November 13 was the date the applicant made contact with her.

11At p. 9 of its reasons, the Committee concluded:

The Committee has expressed its concern about the Member’s conduct relative to allegation 1. and its reasons for those concerns. Although the Complainant’s first allegation is a serious one, the Committee believes that the public interest can appropriately be served by providing the Member with: this decision and these reasons identifying the conduct of concern to the Committee and the basis for the Committee’s concern; and, by requiring the Member to appear before the Complaints Committee to be cautioned, pursuant to subsection 24(5)(c) of the Social Work and Social Service Work Act, on a date to be advised. It is intended that the caution will provide the Member with advice which may assist the Member to improve her future professional practice(s) and conduct. It is the Committee’s hope that the Member will seriously consider the Committee’s advice and attempt to put it into practice.

Analysis and Conclusions

Procedural Fairness

12The applicant seeks judicial review of the decision of the Committee on the basis of an alleged breach of the duty of procedural fairness. The Ontario Court of Appeal has held that a court considering an allegation of a denial of natural justice or fairness need not engage in an assessment of the appropriate standard of review; rather, the court is required to evaluate whether the rules of procedural fairness have been respected (London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 at para. 10).

13A duty of procedural fairness lies on a public authority making an administrative decision which “affects the rights, privileges or interests of an individual” (Cardinal v. Director of Kent Institution, 1985 23 (SCC), [1985] 2 S.C.R. 643 at 653). However, the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, emphasized that the duty of fairness is variable and depends on a number of factors, including the following:

1. the nature of the decision being made

2. the nature of the statutory scheme

3. the importance of the decision to the individual or individuals affected

4. the legitimate expectations of the person challenging the decision and

5. the choices of procedure made by the agency itself (at paras. 22-27).

14Taking these factors into account, I am satisfied that the Committee owed the applicant a duty of procedural fairness, because the decision whether to refer a complaint and whether to caution a member affects that individual’s interests as a professional social worker. However, the content of the duty is limited, given the nature of the decision being made and the statutory context.

15Turning to the nature of the decision being made, this is a case where the Committee investigates complaints and disposes of them by referring them to another process or by determining that they should not be referred. The Committee does not make findings of fact nor determine whether discipline is warranted; rather, it weighs the evidence to determine whether there is sufficient evidence to refer to the matter to the Discipline Committee or the Fitness to Practise Committee. It is those bodies which will make findings of fact.

16While the Complaints Committee can itself caution a member, a caution is not a sanction. It is advisory in nature and intended to be remedial (Modi v. Ontario (Health Professions Board) (1996), 1996 11773 (ON SC), 27 O.R. (3d) 762 (Div. Ct.) at p. 780). A caution is not recorded in the public registry of the College nor publicized by it. While the applicant has expressed concern about certain information disclosed on a website, that is not information that was disclosed by the College. Moreover, while the applicant has raised concerns about the impact of a caution on her ability to act as a social worker, there is no evidence, other than her perceptions, that an advisory caution is likely to have any negative effect on her career.

17The second consideration in determining the scope of the duty of procedural fairness is the statutory scheme. Here the Act contemplates a level of procedural fairness in the complaints screening process, in that it requires notice to the member of the substance of the complaint against him or her and an opportunity for the individual to respond. However, it is noteworthy that s. 24(4) requires disclosure of “reasonable information about any allegations” in the complaint so that the member can respond. It does not require disclosure of all the information obtained during the course of the investigation of the complaint.

18In my view, the Complaints Committee has met its duty of fairness in the circumstances of this case. The applicant was given reasonable information about the allegations against her and, most significantly, she was afforded all information relevant to the sole basis upon which the decision to caution was made. In particular, she was given the initial complaint and the extensive documentation provided by the complainant. She knew the substance of the allegations against her, and she was given the opportunity to respond to them. Even if she did not receive the September 12, 2003 letter, the Director of Complaints and Discipline reasonably concluded that it raised no new allegations. While the applicant states that she did not receive the June 16, 2003 letter as well, it, too, raises no allegations which were not in the material that she did receive.

19The applicant also argues that she was denied procedural fairness because she was not provided with the Complaint Summary prepared by College staff and available to the Committee. There is no evidence to suggest that the Committee relied only on the staff summary in dealing with the complaint. Indeed, it is clear in the Committee’s reasons that the members reviewed the complaint documentation set out in the schedule to their reasons. In any event, the Committee had no duty to provide the applicant with the staff summary (Sommers v. Ontario (Civilian Commission on Police Services), [2005] O.J. No. 1838 (Div. Ct.) at paras. 19 and 28).

20The applicant also argued that the informal manner in which the complainant’s wife communicated with the College in her e-mails gave rise to a reasonable apprehension of bias. There is no merit to this argument. Ms. Zagdanski replied on behalf of the College in a formal manner. Moreover, she was not the decision-maker; it was the Committee, and there is no evidence of any communication by its members with the complainant or his wife.

21This is not a case, as the applicant argues, where the Committee preferred unsworn evidence over her sworn evidence. In coming to the conclusion that a caution was an appropriate response, the Committee relied on undisputed facts set out in the applicant’s response to the complaints.

22For all of these reasons, there was no breach of the duty of procedural fairness.

The Reasonableness of the Decision

23The applicant also argued that the Committee acted unreasonably in concluding that she should be cautioned, as she had acted in accordance with the practice and procedure of Brant CAS.

24Applying the pragmatic and functional approach to determine the standard of judicial review, I conclude that the standard of review of the Committee’s decision is reasonableness. The Committee has specialized knowledge, experience and skill in analyzing information about the professional conduct of social workers and determining the proper disposition of complaints. The primary objective of the College (and its Complaints Committee) is to protect the public interest by regulating the practice of social work and social service work.

25When applying the reasonableness standard, a court must review the reasons of the tribunal and determine whether any of the reasons adequately support the decision (Law Society of New Brunswick v. Ryan (2003), 2003 SCC 20, 223 D.L.R. (4th) 577 at paras. 48-49).

26Section 3 of the Act makes its clear that it is the Committee’s task to consider the public interest and to apply the standards of the College. The issue before it was not whether the member had complied with the internal policies of her employer, but whether her conduct might be found to have contravened any of the College’s standards of practice or the provisions of the College’s professional misconduct regulation. Given the material before the Committee, it was not unreasonable for it to have decided that a caution to the applicant was appropriate in the circumstances.

Conclusion

27For these reasons, the application for judicial review is dismissed. Counsel for the College indicated at the hearing that the College would not be seeking costs if successful. Therefore, no costs are awarded.

Swinton J.

Epstein J.

Released: January 19, 2006

GREER J. (in dissent)

28I have read the Reasons for Decision of my colleague, Madam Justice Swinton, in this Application for Judicial Review, and disagree with her conclusion that the Application should be dismissed. In my view, the Committee breached a duty of procedural fairness in failing to provide the Applicant, Patricia K. Silverthorne, with all the documents the Committee received from JC, the father of the teenage girl, who became the client of the Children’s Aid Society of Brant (the “CAS”), and who was later made a Crown ward in March 2002.

29I do not disagree with the background facts, as they are set out in the majority Reasons. I am of the view, however, that additional background facts must be looked at in light of the Applicant’s contention that the Committee breached its duty of procedural fairness to her, before it made its decision disposing of a complaint against her made by the above JC. In my view, the Committee breached its duty of procedural fairness in coming to the conclusion it did in reprimanding the Applicant, who is a social worker with the CAS.

Some additional background facts

30There is an extremely long and protracted background history leading up to the complaint by JC and by his wife to the College about the Applicant. Their daughter had a history of problems with her parents, which led the daughter NC (“NC”) to leave her parents’ home. The 15 year-old NC was brought by her parents to a Youth Resource Centre (the “YRC”) for a three-month residency in July 2001. It is a housing centre for children under the age of 16 years. It is designated as a place of safety by the CAS. There was no provision for NC to stay longer than the allotted period. She, however, discharged herself somewhat early on October 4, 2001, to live independently on her own, as she had secured an apartment for herself.

31The referral documents of the CAS indicate that NC had been in various locations, other than her parents’ home, over the past year. It also states that she was doing “extremely well in school”. When she left the YRC, the CAS received a call from a worker at the YRC, Mike Dowhaniuk, stating that he felt that NC needs “assistance.” This was because NC tried to get her parents to give to her, her possessions and furniture. This call, says the documentation, resulted in an argument with the parents. Since this was not an emergency, it was given a 7-day report time by the CAS.

32The Applicant was given the file, and did a follow-up with the YRC, as she was given no information about the whereabouts of NC and was never told that NC was in any kind of danger. The Applicant followed-up with the YRC and tried to trace NC’s whereabouts. On October 4, 2001, the Applicant writes in a case note that NC has moved into her own apartment and that “Grant (Failla) is very reluctant to release N’s address to me and is unsure if they even have her new address. Grant will pass on my name & number to original referral service & have that employee call me back.” The evidence is clear that no one from the YRC ever called back or told the Applicant what attempts the YRC made to find NC and determine her address.

33On October 31, 2001, the Applicant called back to the YRC, since no one had called her back. There is a note of that date, stating that Mike Simon, of the YRC says that he does not know NC’s address and that she must not want their services as she has not been back to the Centre. NC was contacted by the Applicant on November 13, 2001, after she traced her whereabouts. She interviewed NC at her school and found out where she lived and how she met her basic needs. She arranged for NC to call her every evening at 8:00 p.m. to check in, “…until we sorted out her legal status. N. contacted me each night without fail”, says the Applicant in an affidavit later sworn by her. The Applicant also called NC’s mother LC that day and told her that she had been in contact with NC and needed to speak to her about NC’s legal status. In her affidavit, the Applicant reports that the mother’s verbal tone was “very abrupt and aggressive.”

34There are further notes dated November 14 and 16, 2001, with information about NC. NC came within the CAS’s care and custody on November 16, 2001 and was to remain so until April 27, 2001, when she would turn 16 years of age. The Applicant met with a vice-principal of NC’s school and was told that the school was not aware of NC having any behavioural problems.

35When the CAS moved before the Court for a protection order, the Applicant set out the whole family history, including NC’s problems with her parents, in an affidavit sworn to by her in connection with the protection order on November 27, 2001. The Applicant tried to deal with NC’s parents but received no co-operation from them. The Applicant tried to discuss having the parents sign a Temporary Care Agreement but received no co-operation, so the parents were put on notice that the CAS would have no choice but to apprehend NC and proceed with the protection application. The apprehension took place on November 23, 2001. NC told the Applicant that she did not wish to have contact or access visits with her parents. She did, however, wish to see her younger sister.

36At no time while NC was in the care and control of the CAS, did NC ever complain about the Applicant or any of the other case-workers she came in contact with. The CAS had previously been involved with the family in 2000, and the file had been in the hands of a different case-worker, and not the Applicant at that time.

The complaints by NC’s parents

37NC’s parents did not like what the Applicant had said in her affidavit, in support of the apprehension of NC. JC said that the family history as set out by her was not correct, and that, “…we have responded to the errors and misrepresentations of Ms. Silverthorne’s affidavit on a point by point basis corresponding to the numbered sections”, in a form dated December 19, 2001. Attached to that form are 28 single-spaced typewritten pages produced by JC, much of which is a justification for his and his wife’s position regarding NC. The Applicant then responded with a further affidavit in support of the CAS’s position. The Protection Application took place and the Final Crown Wardship Order was made on March 7, 2002.

38The written complaints made by JC to the College of Social Workers are four in number. They are dated March 22, 2003, June 10, 2003 and June 16, 2003. They are respectively 6, 23, and 15 pages in length, sent to Ms. Zagdanski, Director, Complaints and Discipline. A further letter was then sent by JC to the College on September 13, 2003. None of the allegations made by JC in these letters were ever put in affidavit form and sworn to by him. On the other hand, the Applicant responded to those she received a copy of from the College, by way of responding affidavit. The College claims that it sent all three letters to the Applicant but she only responded to the first one. The Applicant say she only received two and did not receive the third one, as noted in her counsel’s letter dated April 7, 2004, to counsel for the College. She did receive certain other materials in the complaint file.

39The Complaints Committee met on November 13 and December 9, 2003 to consider the complaints about the Applicant. The Committee had before it, the report of the CAS, supporting the Applicant’s position. While JC had complained about other social workers, besides the Applicant, none of them were before the College as the other three complained about were not members of the College. In my view, the fact that the Applicant was left in the position of having to solely respond to all complaints, since the other CAS workers were not members of the College, should have been taken into account by the Committee. The Applicant, in my view, bore the brunt of all the vitriolic complaints JC and his wife had against the CAS, as a whole. On September 13, 2003, JC wrote another letter, 33 single-spaced typewritten pages, to the CAS, stating that the Applicant lied about the case, fabricated her case notes, misrepresented facts, was arrogant, biased, deceitful and blamed her for putting “NC” at risk, during the 6 weeks when the Applicant had been unable to contact NC. The Applicant was never given a copy of this letter either.

40JC also complained about the Applicant and other social workers, of the CAS, which investigated the claims and found them to be without substance. The CAS supported the Applicant in what she had done and found no breach. It says the following in its report dated November 6, 2003:

As a result of its review of these allegations, the Committee has satisfied itself that Brant CAS, at an operational level, had in place appropriate procedures to ensure that its mandate is carried out in an appropriate manner and that it continues to adopt as an ongoing process review of its policies and procedures to ensure that the actions of its employees are subject to internal oversight and that its policies and procedures are subject to continuous improvement.

41Further, it is the position of the Applicant that the College’s Decision has not remained confidential. She states in her affidavit sworn November 7, 2005, that she has received voicemail threats (see para. 8) from another parent of a child in another CAS file, referring to her as having being reported to the College. The Applicant says that she is also the worker referred to in a Family rights website being published publicly on the Internet, under the heading “Brant Children’s Aid Society Dirty Laundry”. As of July 27, 2004, an article was posted on that website, saying that “in recent years they have had a CAS worker reprimanded by the College of Social Workers.” The Applicant’s expectation of total confidentiality about the matter had obviously been breached.

The Committee’s Decision

42The Applicant says that she has been negatively affected by the Committee’s Decision and that it has had a significant impact upon her and the way she now carries out her job as a social worker with the CAS. She feels her credibility is under attack. If she is “cautioned” by the Committee, if she is ever asked in a court setting whether she has been cautioned, she will have to answer that she has. She sees this as “…a significant blow to my credibility and evidence that I might give in a child protection (sic) proceedings.”

43The Applicant says that the Committee breached the rules of natural justice and procedural fairness, in making the finding it did about her, based on JC’s unsworn allegations against her, without giving her an opportunity to read and respond to all the letters, which were sent to the College. She asks whether the Committee had a duty to ensure that her rights to natural justice were protected or whether there was a reasonable apprehension of bias on the part of the Committee against her.

44The Committee says that it did not forward all documents to the Applicant because the September 13, 2003, letter did “not contain any new information or new allegations by the Complainant.” The Committee points out that it is not required to apply the formal rules of evidence in screening complaints, nor is it required to hold an oral hearing. It further says that it is not the function of the Committee to weigh evidence and determine disputed facts. It says it did not accept unsworn letters over the Member’s sworn affidavits. It says in paragraph 56 of its Factum that, “It simply decided not to refer any allegations to the Discipline Committee and required the Member to be cautioned based on certain facts which were not in dispute.”

The duty of fairness and natural justice

45The duty of fairness, as summarized by the Supreme Court of Canada in Cardinal v. Director of Kent Institution, 1985 23 (SCC), [1985] 2 S.C.R. 643, is set out at p. 653, as follows:

This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual.

The College is such a public authority and does make decisions, which are not of a legislative nature. It, however, sees its Decision in this case, to be one of a remedial nature, where a caution, if issued, carries no penalty with it. On the other hand, the Committee has the power to determine if the complaint will be sent on to the Discipline Committee, and this gives it great power. It therefore, in essence, evaluates the complaint, based on the facts before it, whether they are true or not.

46Procedural fairness was also examined by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.R. 748; 1999 699 (S.C.C.). In paragraphs 21 to 25, inclusive, the Court summarizes the case law and the factors to be looked at in determining whether the duty of procedural fairness has been met. In paragraph 22, the Court states:

Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

It is clear from the Applicant’s affidavits, that she feels that Committee did not use a fair and open procedure, in coming to the Decision it did to caution her for the way she dealt with the minor, NC. The Committee read all the dreadful allegations made against her and yet did not provide her with copies of all the letters. Given the length, the tenor and the number of those letters, I am of the view that all should have been given to the Applicant to review, leaving it up to her how she wished to respond. She was not given that choice.

47Since there was no appeal procedure from the Committee’s decision, the Applicant’s only route was to move by way of judicial review of the decision. As noted in paragraph 25 of Baker, supra, the importance of the decision and how it affects the lives of those affected, must be examined. The Committee’s decision has a profound impact on how the Applicant sees herself in her role as a social worker, has had a further impact, as details of her caution are being spread on a website that is accessible by the public-at-large. As the Court noted in that paragraph quoting Dickson J. (as he then was) in Kane v. Board of Governors of the University of British Columbia, 1980 10 (SCC), [1980] 1 S.C.R. 1105, at p. 113, “A high standard of justice is required when the right to continue in one’s profession or employment is at stake…”. While the Committee’s decision before us is not a disciplinary one, it certainly affects how the Applicant sees herself, and how others see her, in her professional setting.

48The facts, which cannot be overlooked in this case, are that NC left the YRC of her own accord, only a few weeks before she would have had to leave. NC found her own place in which to live independently, and felt secure enough not to call the YRC, which made no concerted efforts to find her before they called the CAS, when her parents refused to give NC her possessions and furniture. NC never missed school and was doing extremely well despite her circumstances, calling each night to her case-worker, the Applicant, once reached. Further NC wanted to become a Crown Ward in 2002 and wanted nothing to do with her parents, who only began their complaints in 2003 against the Applicant.

49The Applicant had legitimate expectations that she could fully respond to the massive missives of complaints against her. This did not take place. While the Committee had no duty to provide an oral hearing, in reaching its Decision, and while the Committee found JC’s complaint about the Applicant trying to conceal her conduct, to be unfounded, it did say, however, that the approximate 6-week period where there was no contact with NC, to be “neither timely, responsible nor reasonable.”

50In my view, the timeliness was partly governed by the failure of the YRC to provide an address for NC. Surely, it was the first line of communication with NC, and when she left the centre early, the YRC had a duty to determine where she had gone and to respond to the Applicant when it said it would call her back.

51We know nothing about the case-load being carried by the Applicant when the call came to her from the Centre. The call was not an emergency, as was noted. Once NC was contacted, the Applicant acted both responsibly and reasonably. The delay caused no harm at all to NC.

52In my view, this conclusion was unfair and the Applicant’s rights of natural justice were breached. She did not have all of the allegations in writing made against her. She wanted to have an opportunity to respond to all. If the Committee did not want her to respond to the September, 2003 letter, it ought to have mailed it back to JC, with an explanatory letter that in the College’s view, the allegations were repetitive and already made by him. It is the Applicant’s position, however, now having seen that letter, that it, in fact, does raise new allegations against her, for which she was given no opportunity to respond.

Conclusion

53For the reasons, as set out herein, I find that the Applicant’s rights of natural justice have been breached and that the duty of procedural fairness owed to the Applicant by the Committee, was not met. I therefore order that the decision of the Complaints Committee of the Ontario College of Social Workers and Social Services Workers dated December 12, 2003, requiring the Applicant, Patricia K. Silverthorne, to be cautioned, be set aside. The Applicant shall have her Costs of this proceeding, which will be fixed by the Court, if the parties cannot otherwise agree on the quantum. Order to go accordingly.

Greer J.