Court of Appeal for Ontario

Date: 2018-01-15 Docket: C63234

Panel: Hoy A.C.J.O., Huscroft and Paciocco JJ.A.

Parties

Between

J.K. Plaintiff (Respondent)

and

Her Majesty the Queen in Right of the Province of Ontario Defendant (Appellant)

and

Banyan Community Services Inc., Craigwood Youth Services, Pwi-Di-Goo-Zing-Ne-Yaa-Zhing Advisory Services, CAS of Nipissing and Parry Sound, William W. Creighton Youth Services, Ray of Hope Inc., Northern Youth Services Inc., Youth Services Bureau of Ottawa, Anago (Non) Residential Resources Inc., Kennedy House Youth Service Inc., North Eastern Ontario Family and Children's Services/Services a la Famille et a L'Enfance du Nord-Est de L'Ontario, St. Lawrence Youth Association, Kinark Child and Family Srvc. Corp. (Markham), Casatta Ltd., York Detention Centre Ltd. Third Parties (Respondents)

Counsel

Tamara D. Barclay and Jonathan Sydor for the appellant, Her Majesty the Queen in right of the Province of Ontario

Kirk Baert and James Sayce for the respondent plaintiff, J.K.

C. Kirk Boggs for the respondents Banyan Community Services Inc., Craigwood Youth Services, Pwi-di-Goo-Zing-Ne-Yaa-Zhing Advisory Services, CAS of Nipissing and Parry Sound, William W. Creighton Youth Services, Ray of Hope Inc., Northern Youth Services Inc., Youth Services Bureau of Ottawa, Anago (Non) Residential Resources Inc., Kennedy House Youth Service Inc., North Eastern Ontario Family and Children's Services/Services a la Famille et a L'Enfance du Nord-Est de L'Ontario, St. Lawrence Youth Association, Kinark Child and Family Srvc. Corp. (Markham), and York Detention Centre Ltd.

No one for the respondent Casatta Ltd.

Hearing and Lower Court Decision

Heard: September 11, 2017

On appeal from: The order of Justice Paul M. Perell of the Superior Court of Justice, dated December 22, 2016, with reasons reported at 2016 ONSC 8047.

Costs Endorsement

[1] We have received and reviewed the parties' costs submissions.

[2] In its Notice of Appeal, the Crown sought the reinstatement of its third party claim that had been struck by the motion judge.

[3] In our reasons released on November 24, 2017, we concluded that it was not plain and obvious that the Crown's third party claim had no reasonable prospect of success, and accordingly allowed the Crown's appeal of the motion judge's order striking its third party claim.

[4] The Crown did not accept that the plaintiff, J.K., could amend his Fresh as Amended Statement of Claim in such a manner that the Crown's third party claim would have no reasonable prospect of success and the Crown's third party claim could be properly struck without leave to amend. However, we concluded that it was possible for J.K. to do so, and, as requested by J.K., provided guidance on the kind of amendment that would enable the Crown's third party claim to be struck.

[5] J.K. is amending his pleading to include the suggested language. Therefore, while the appeal was allowed, the outcome is that the relief granted by the motion judge – namely, striking the Crown's third party claim – remains.

[6] In our view, in these circumstances, it is not appropriate to disturb the costs awarded by the motion judge for the motion below and each party should bear their own costs of the appeal.

"Alexandra Hoy A.C.J.O."

"Grant Huscroft J.A."

"David M. Paciocco J.A."