WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) Prohibition: identifying child.
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
(9) Idem: order re adult.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Ontario Court of Justice
Date: January 20, 2017
Court File No.: Kitchener 217/14
Between:
The Children's Aid Society of the Regional Municipality of Waterloo, Applicant,
— And —
A.L. and P.L. The Respondents.
Decision on Costs
Counsel:
- Danika Brown – counsel for the applicant society
- Brigitte Gratl – counsel for the respondent P.L.
- A.L. – on her own behalf
- Valeria Ruoso – counsel for the Office of the Children's Lawyer, legal representative for the children M.L.1 and M.L.2
PARRY J.:
A. OVERVIEW
[1] This child protection matter proceeded to trial before me. The trial was held over the course of the weeks of January 25, 2016, and March 1, 2016. In September of 2016, I released a judgment granting sole custody of the children of A.L. and P.L. to A.L. I further granted sole discretion to A.L. regarding any access by P.L. I requested and received submissions on costs from all of the parties.
[2] The Society seeks costs against Mr. P.L. and against Ms. Gratl, his counsel. Ms. A.L. joins in a request for costs against her former spouse. The OCL takes no position.
B. THE LEGAL AND FACTUAL POSITION ADVANCED BY THE SOCIETY (AND MS. A.L.) IN SUPPORT OF THE REQUEST FOR COSTS
[3] Ms. Brown, on behalf of the Society, alleges that the matter would not have proceeded to trial but for the Charter application brought by Ms. Gratl on behalf of Mr. P.L. This application was withdrawn on the first day of trial.
[4] The Society notes that the matter was originally the subject of a Summary Judgment Motion, first scheduled on August 14, 2014. That motion was adjourned because Ms. Gratl had, prior to the hearing on the motion, filed a motion seeking two types of remedy: (1) Charter relief; and (2) the striking of portions of the affidavits filed by the Society in support of its Summary Judgment Motion.
[5] On October 30, 2014, the parties, on consent, withdrew the Summary Judgment Motion. A transcript of the proceedings from August 14 and October 30th make it clear that but for Ms. Gratl's motion, the Summary Judgment Motion would have proceeded on August 14th. However, neither the transcript nor the continuing record assist in illuminating the degree to which the Motion to Strike influenced the decision to adjourn the matter on August 14 and withdraw the matter on October 30th.
[6] The society also takes issue with what it asserts was an unreasonable litigation strategy, asserting that, essentially, Mr. P.L.'s trial position was, on its face, an unreasonable one.
[7] The society also takes issue with Ms. Gratl's repeated late disclosure of witnesses, her repeated violation of the rule in Brown v. Dunn during the trial, her admitted lack of timely interviews of witnesses [and thus her lack of readiness for trial], and an allegedly frivolous and vexatious Charter motion.
[8] While recognizing that costs in child protection proceedings ought to be sparingly imposed, the Society argues that the facts of this case warrant costs both against Mr. P.L. and his counsel.
[9] Ms. A.L. essentially adopted the Society's position and provided the court with an understanding of the costs she endured during the course of the litigation.
C. THE POSITION ADVANCED BY MS. GRATL ON HER BEHALF AND THAT OF HER CLIENT
[10] Ms. Gratl argues that the Society cannot seek costs against her personally, because Rule 24(9) requires the opposing party to bring a Motion for costs against a solicitor before the court has jurisdiction to consider costs.
[11] Ms. Gratl further argues that she and her client are entitled to vigorously defend against any attempt by the State to remove the child from the life of a parent.
[12] She takes issue with the assertion that her positions and conduct during the trial were unmeritorious. As she puts it, this is simply a case where, "in the final analysis, the Court did not accept Mr. P.L.'s position."
D. THE LAW
[13] I am grateful to the Society for its summary of the relevant law on the subject. I will attempt to briefly outline the law as I understand it on the subject.
[14] Rule 24(2) specifically states that the ordinary presumption of costs in favor of the successful party does not apply to the issue of costs in child protection proceedings.
[15] Faced with state intervention, parents have a right to force the state to prove its case against them. They are therefore given considerable latitude in the conduct of their defense. Consequently, costs in child protection cases should be seldom granted and only in situations where the parents acted in bad faith or conducted the case in a patently unreasonable manner disproportionate to the issues at stake. Put another way, the outcome of the case, despite appearing obvious and perhaps inevitable in hindsight cannot be the sole basis upon which entitlement to costs rests.
Children's Aid Society, Region of Halton v. J.S. [2014] O.J. No. 522
[16] Rule 24(9) provides the court with jurisdiction to award costs against a lawyer personally. The provision reads as follows:
- If a party's lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,
(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;
(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;
(c) order the lawyer or agent personally to pay the costs of any party; and
(d) order that a copy of an order under this sub rule be given to the client.
[17] Costs against counsel should only be made in the clearest of cases, particularly in child protection cases. A high legal threshold has been said to be necessary to protect solicitor client privilege and to prevent a chill upon bold and fearless advocacy, especially in circumstances where parents are fighting against the immense power of the state to preserve the integrity of their family unit.
M.D. v. Windsor-Essex Children's Aid Society [2010] O.J. No. 2270
[18] In assessing the appropriateness of costs, a two-step analysis should be employed. First, the court must determine whether the lawyer has "run up costs without reasonable cause or has wasted costs".
[19] At the second stage the case specific elements of the case must be examined. While there is no exhaustive list of factors, some of the useful issues and questions to be examined are as follows:
a) To what extent did the lawyer's conduct involve an element of fault: is the issue one of inadvertence, simple negligence, extreme negligence, or bad faith?
b) Did the conduct affect the integrity of the administration of justice?
c) Was it reasonable for the lawyer to believe that the conduct was properly undertaken in the vigorous defense of a client?
d) Was the conduct within the realm of what should be tolerated in litigation including high conflict litigation involving child protection?
e) Would a costs award have the effect of chilling resolute advocacy?
f) Given the interests at stake, the role of the lawyer and the importance of solicitor client privilege, has the case for costs been made out?
M.D. v. Windsor-Essex Children's Aid Society [2010] O.J. No. 2270
E. ANALYSIS
[20] Mr. P.L. adopted what I believe to be an unreasonable and unrealistic litigation strategy. In my view, a man who wilfully abandoned his children for about two years, rather than briefly work with the CAS to provide confidence in his parenting capacity, is a man who proved unwilling to make child focused decisions, who determined it was more important to be right than it was to behave in a way that communicated to his children that they mattered to him. I have no way of knowing whether his behavior was in accordance with legal advice, without the benefit of legal advice on his course of conduct, or in defiance of legal advice. I do know, however, that by the time of trial, his convictions were deeply entrenched. He honestly believed in the righteousness of his convictions. While I am in wholehearted disagreement with his abandonment of his children and with his litigation strategy, I am loath to award costs against him. As noted, courts should be very hesitant to award costs in child protection proceedings. Many of the parents in these proceedings are parties precisely because they have difficulty thinking reasonably, behaving reasonably, and perceiving the world reasonably and realistically. Some of these parents, because of their deficits, become unsuccessful litigants. When they do so, they sometimes pay what many would consider the ultimate price: the loss of their children. Mr. P.L. has paid that price. He lost custody of his children and lost the right to unfettered access. He brought this outcome upon himself, in my view, but he nevertheless has incurred a significant cost for his conduct. He was entitled to put the Society to the test of proving its case. He was entitled to rely upon the guidance and advice of legal counsel when putting the Society's case to the test. It is clear to me that he vehemently believed in the righteousness of his cause, even though I held and continue to hold an entirely different view than him about the merits of his case. Perhaps, upon reflection, he will someday realize that there was a better way to have navigated the stormy waters of his marital breakdown. In the meantime, I am not inclined to compound the negative outcome for Mr. P.L. by awarding costs against him.
[21] With regard to Ms. Gratl, I have thought long and hard about the issue of costs. I disagree with Ms. Gratl that costs against her are not available because there has been no motion for costs. I invited submissions for costs. Rule 24(9) envisions the court inviting submissions for costs. CAS counsel sought in her submissions for costs to be awarded personally against Ms. Gratl. Ms. Gratl, having been put on notice, provided a detailed written response to the requests for a costs order against her. The Rules make it clear that costs against a lawyer can be granted on motion of an opposing party or on the courts own motion, provided that the lawyer who is the object of the claim be provided an opportunity to make submissions. Ms. Gratl was put on notice and has made submissions. She has had procedural fairness. Accordingly, I am of the view that I have the jurisdiction to grant costs against Ms. Gratl if I deem it just and appropriate to do so.
[22] The position advanced on behalf of Mr. P.L. in my view had no realistic chance of success. Indeed, in my view, it was unreasonable. Mr. P.L. alienated himself from the children for two years, yet he claimed to be the victim of alienation. He sought full custody of children he had willingly not seen for two years and appeared prepared to sever their contact with their mother, with whom they shared a loving relationship. Ms. Gratl was his counsel for most of this two year period. Her conduct of the trial [including the theme of her cross-examinations and her substantive submissions] suggests she either engaged in unyielding obedience to her client or aided and abetted his unreasonable litigation stance throughout the period of her retainer. I cannot easily conceive of an alternative interpretation of her litigation conduct. Of the two apparent interpretations, I am not sure which is worse.
[23] Ms. Gratl also insisted upon a bifurcated trial. In and of itself, this stance is far from problematic. It becomes problematic however, when she and opposing counsel espouse diametrically opposed and mutually exclusive theories of the case, both of which involve a conclusion that the children are in need of protection: the CAS and mom alleged physical and emotional abuse; Dad alleged fabrication as part of a campaign of deliberate parental alienation. In either case, the children would be in need of protection. Ms. Gratl conceded this conclusion after the lunch break on the first day of trial and as a result conceded that there ought to be a finding. Such a concession could have been made far earlier.
[24] To compound my concern about Ms. Gratl's trial conduct, Ms. Gratl twice surprised the opposing litigants with new witnesses, some of which were revealed after opposing parties had called their witnesses, and without giving the opposing parties or their witnesses notice of the content of the new witnesses' evidence. In short, Ms. Gratl engaged in breaches of a basic principle of procedural fairness. It would appear that from Ms. Gratl's submissions that Ms. Gratl was aware of the existence of some of these witnesses long before the trial management conference. During the first week of trial, Ms. Gratl was ordered to provide a final witness list to counsel by the Friday of that week. She did so. However, on the Thursday prior to the second week of trial she disclosed new witnesses and a statement of their anticipated evidence. At the outset of the second week of trial, counsel objected to the introduction new witnesses at such a late stage. Counsel also objected to the hearsay nature of the proposed evidence. In her defense, Ms. Gratl said some rather disturbing things. First, she blamed her client for the late disclosure of these witnesses. She explained that her client insisted upon having the exclusive power to meet with and vet clients during trial preparation. She effectively intimated that her client was tardy in doing so with the final proposed witnesses. She thereby threw her client under the proverbial bus. She also effectively admitted that she abdicated to her client her role as counsel in trial preparation. She thereby threw herself under the proverbial bus. Secondly, she impugned the credibility of her client by asserting that at least one of the witnesses was going to say something entirely different than the disclosed hearsay evidence gathered by her client. She informed the court that she interviewed the witness on the Friday before the resumption of the trial and obtained entirely different evidence from the witness than her client did two days earlier. In the result, not only did she admit initially abdicating her duties and obligations for trial preparation to her client, she also alleged that her client either negligently or dishonestly obtained completely different information than the information she obtained two days later. To make matters worse, she sat on this newly discovered discrepancy, only informing the court and counsel of the discrepancy during submissions on the hearsay object – despite the fact that court started over an hour late due to a court staffing issue.
[25] During the second week of trial, Ms. Gratl also brought a mistrial application on her client's instructions. When asked for the legal basis for the mistrial application, she could not advance one. Instead she simply indicated that she was instructed to do so by her client.
[26] In my view, lawyers should not mindlessly follow clients' instructions irrespective of established law and legal principles. Rather, they should govern themselves in accordance with client instructions, so long as those instructions are in accordance with established law and legal principles, and so long as those instructions are properly informed. Lawyers are not ventriloquists' dummies. They are officers of the court, with a duty to the court as well as a duty to their client. Abdicating trial preparation to a client and thereby failing to afford procedural fairness to the opposing party is not acceptable. It is likewise unacceptable to impugn your client for his late trial preparation or to impugn the integrity of his witness interviewing. Similarly, it is unacceptable to bring a motion despite admitting the lack of a legal foundation to do so.
[27] I note as well that, more than once, Ms. Gratl sent an agent, who was not and could not be privy to all of the earlier evidence, to appear on this trial in her stead. Indeed, she sent an agent to give final submissions. I wonder how that poor agent would have been in a position to answer questions of the court during oral submissions, had I opted to rely solely upon oral submissions. It is entirely improper, in my view, to parachute in an agent to take the place of retained counsel who has been conducting the trial and who would have familiarity with the evidence previously called. It is even more inappropriate when counsel has been ordered by the local administrative trial judge to carry on the trial, despite the fact that counsel had double booked herself elsewhere.
[28] Having said all of that, apart from the Charter application, to which I will turn shortly, I am not satisfied that Ms. Gratl's conduct of the trial needlessly ran up costs. While there may be aspects of her trial conduct which are open to criticism, both she and her client were entitled to put the Society to the test of satisfying its burden of proof. For the same reasons I have declined to award costs against Mr. P.L., I likewise decline to impose costs against Ms. Gratl for conduct of the trial that did not pertain to the withdrawn Charter motion.
[29] The Charter motion, however, requires an entirely separate consideration. Not content with adopting an uphill litigation stance, Ms. Gratl launched a Charter motion, which on its face was, in my view patently unreasonable. On behalf of Mr. P.L., Ms. Gratl brought an application under sections 2, 7, and 8 of the Charter. It was agreed by Ms. Gratl that this Charter motion would only become relevant if there had been a "finding" and the trial moved onto the disposition phase of the proceeding.
[30] The factual backdrop of the Charter complaint can be briefly summarized. Mr. P.L.'s twin boys alleged that he had been physically abusive to one of them, and they therefore did not want to attend for an access visit. The CAS apprehended the children when Mr. P.L. would not suspend his access visit to permit an investigation of what turned out to be a fairly minor incident. After the apprehension, Mr. P.L. remained steadfast in his desire to confront the boys and get them to admit that they had lied when making the allegations against him. Indeed, he remained steadfast in this desire when giving his evidence at trial. Faced with a man who fervently asserted that he was the victim of the lies of his own children, the CAS did not want access visits to become coercive visits or incidents of interrogation. Accordingly, they wanted to ensure that Mr. P.L. obey the requirement that he not discuss the allegations with his children during access visits. Mr. P.L. bristled at this requirement and continued to do so up to and during his trial. In order to ensure Mr. P.L. obeyed this very reasonable condition of supervised access, the CAS insisted that he either speak English to his children or use a Greek interpreter, so that the CAS could be privy to the discussions with his children during supervised access. In addition, the CAS did not want the introduction of third parties to supervised access visits, including the introduction of the family priest. One could be forgiven for envisaging the use of a priest to exercise moral suasion in an effort to obtain an admission from the boys that they had lied about the alleged physical abuse. One could also easily be forgiven for insisting a brief access visit be spent with the custodial parent, not a third party.
[31] On behalf of Mr. P.L., however, Ms. Gratl alleged that the society's stance violated Mr. P.L.'s right to be free from the seizure of his thoughts, his right to freedom of association, and his children's right to freedom of religion. In my view, it is absolutely preposterous to allege a seizure of someone's thoughts occurs when the State insists on being able to actually supervise a visit. Insisting upon the ability to monitor a father who is intent on convincing his children that they lied is not thought seizure. It is child protection. Protecting a child in accordance with a constitutional valid statute is not a violation of freedom of association. It is child protection. Upon receiving grounds to believe that the father wishes to employ a priest to encourage the children not to lie about the allegations against the father, the prevention of that father from bringing a priest to assist in his campaign of moral suasion is not a breach of the father's right to freedom of religion. It is child protection. The father has standing to challenge the breach of his right to freedom of religion. I am unaware of a case that would suggest he has standing to advance that right on behalf of the children, who were represented by the OCL in this case, and who specifically asserted to the case workers that they did not wish to see a priest. In short, I am of the view that the Charter application was frivolous and vexatious and worthy of summary dismissal.
[32] However, even if one were to assume that the alleged Charter breaches were meritorious, one must go on to ask what relevance the alleged breaches have to the disposition phase of the proceeding. Recall that this was the only phase of the proceeding to which Ms. Gratl maintained the Charter application was relevant. At the outset of trial, when asked how the Charter application could be relevant to the disposition phase of the proceeding, Ms. Gratl was unable to articulate anyway in which the conditions of long abandoned access visits could be germane to the issue of the children's best interests in the disposition phase. Instead, she withdrew the application. She indicated something to the effect of "perhaps it is safe to withdraw it now". She further indicated that perhaps it was more relevant to the CLRA proceeding – a perplexing comment, given that the state is not a party in CLRA proceedings and that the Charter exists to govern state conduct, not the conduct of private citizens.
[33] I have no hesitation in concluding that, in bringing and withdrawing her unmeritorious Charter application, Ms. Gratl has "run up costs without reasonable cause or has wasted costs."
[34] I am satisfied that the bringing of a patently unmeritorious motion, one that counsel herself ultimately concedes is irrelevant to the issues at hand, could be described as:
a) being at the very least, extremely negligent;
b) Undermining the integrity of the administration of justice;
c) Not conduct that would be reasonable for a lawyer to believe was properly undertaken in the vigorous defense of a client; and
d) Not conduct within the realm of what should be tolerated in litigation.
[35] I am also satisfied that a costs award against a lawyer for bringing and then withdrawing an admittedly irrelevant Charter motion would NOT have a chilling effect on resolute advocacy. Vigorous defense of clients does not extend to bringing, then withdrawing admittedly irrelevant motions.
[36] I must then ask myself to what extent did costs get run up by the unmeritorious and withdrawn Charter motion.
[37] The society argues that it would not have withdrawn its summary judgment motion, but for the launching of this frivolous and vexatious Charter motion. However, trial counsel, Ms. Brown, was not the counsel who withdrew the summary judgment motion. Another CAS counsel, Ms. Currie, withdrew the summary judgment motion. I have no affidavit from Ms. Currie or submissions from Ms. Currie that articulates that the Charter application was the sole reason for the abandonment of the summary judgment motion. I note here that the Charter motion was accompanied by a motion to strike certain portions of the CAS affidavits in support of their summary judgment motion. As a result of the withdrawal of the summary judgment motion, the motion to strike portions of the affidavits became unnecessary. Having reviewed the endorsements and transcripts from the relevant court dates, I cannot determine whether the Charter motion was solely responsible for the withdrawal of the summary judgment motion, whether the motion to strike was responsible, or whether a combination of the two was responsible. I am therefore not able to conclude that the frivolous Charter motion gave rise to the two week trial before me. It may well have been Ms. Gratl's motion to strike that persuaded the Society to withdraw its Summary Judgment Motion.
[38] I do know however, the parties were all put the inconvenience of reviewing, considering, and planning to contest the Charter motion. I do know that Ms. Gratl effectively conceded that this motion was irrelevant to the only stage in the proceedings to which she originally asserted it applied.
[39] Therefore, in my view, there ought to be a costs award granted against Ms. Gratl personally for the bringing of this patently unmeritorious and [more importantly] admittedly irrelevant Charter Motion. In coming to this determination, I am mindful of the fact that this is not the first time Ms. Gratl has been sanctioned for her conduct during litigation: eg. Huron-Perth Children's Aid Society v. J.B.C.L. [2015] O.J. No. 6065; Debruyn v. Debruyn [2005] O.J. No. 1375. Repeated chastisements and costs orders against Ms. Gratl do not appear to have dulled her zeal for questionable conduct.
[40] Given the discretionary nature of a costs order, I am not of the view that the quantum of the costs need be particularly onerous. In the case at bar, the message comes more from the making of the award than from the quantum of it. In coming to this conclusion, it occurs to me that virtually all of the factual matters that formed the subject matter of the Charter complaint would necessarily have formed part of the substantive trial. I say this because the material facts on the Charter complaint were being relied upon by both parties in an effort to characterize Mr. P.L.'s estrangement from his children for two years: the society (correctly) alleged a self-imposed alienation as a result of his standoff with the CAS; Mr. P.L. (incorrectly) alleged being the victim of alienation at the hands of his former spouse and the CAS. Nevertheless, any reasonable counsel would and should review and assess the merits of the Charter application and consider whether there existed any recognized legal basis for bringing this application. It was, at the very least, an unnecessary distraction and inconvenience.
[41] The CAS has indicate that it would provide a bill of costs in the event costs were awarded. I do not require a bill of costs. I am not inclined to delay the decision any further. The matter has gone on long enough. In addition, I am inclined to cap costs at the equivalent of two hours at the notional rate of $250 per hour. Only the CAS and Ms. A.L. are seeking costs -- the OCL has declined to do so. Consequently, costs awarded personally against Ms. Gratl shall be in the sum of $500 in favor of The Children's Aid Society of the Regional Municipality of Waterloo and $500 in favor of A.L.
Released: January 20, 2017
Signed: "Justice C.A. Parry"