WARNING

The court hearing this matter directs that the following should be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: November 2, 2020

Court File No.: C56160/12

Parties

Between:

Catholic Children's Aid Society Applicant

— AND —

V.O. (mother) C.B. (father of N.O., S.O., C.O., D.O.) B.M. (father of Li.O.) Respondents

Before the Court

Before: Justice Roselyn Zisman

Heard by: Written submissions

Reasons for Judgment released on: November 2, 2020

Counsel

• Fatima Husain — counsel for the applicant society
• Mira Pilch — counsel for the respondent V.O. (mother)
• Deborah L. Stewart — counsel for the respondent B.M. (father of Li.O.)
• No appearance by or on behalf of Respondent C.B. even though served with notice
• Tammy Law — counsel for the Office of the Children's Lawyer, legal representative for the Children S.O. and C.O.

Decision Regarding Costs

Zisman, J.:

Introduction

[1] This decision is with respect to a claim for costs of $5,819.50 on a full recovery basis by counsel for the Respondent mother against the Catholic Children's Aid Society (society). The costs relate to a motion for disclosure of case notes from a meeting between counsel for the society, society staff and doctors from the Hospital for Sick Children (HSC). The society claimed litigation privilege but just prior to the hearing of the motion agreed to disclose the note. The claim for costs is supported by counsel for the father BM. Counsel for the society is opposed.

Background

[2] It is important to outline the context of this claim for costs.

[3] This Protection Application was commenced due to Li. being admitted into the HSC at 12 months of age close to death due to severe lack of development. She was very far below her expected height and weight.

[4] On July 13, 2020, the parents, the foster mother and society worker attended a medical appointment at the Genetics Clinic for their child Li. O. (Li) at the HSC. The parents were advised by Dr. Chad and Ms. Inglese, a certified genetic counsellor that Li had been diagnosed with a rare genetic disorder, Bainbridge-Roper's Syndrome.

[5] That evening, counsel for the parents urgently contacted society counsel, Ms Husain who was away from the office on holidays that week to advise her of this information.

[6] On July 21, 2020 the parties attended by telephone at a scheduled settlement conference. Society counsel advised the court about the new information that had been received regarding the genetic disorder and that the society would be scheduling a meeting with the medical team and would consider its position accordingly.

[7] The society arranged a meeting for society staff including society counsel with Dr. Cory and Dr. Chad of the HSC to discuss their findings and the upcoming trial.

[8] On July 21st, counsel for the parents asked to be present at that meeting. Society counsel advised that the meeting was only for society staff, society counsel and the doctors and that the children's aid society case note of that meeting may not be disclosed.

[9] Society counsel also advised that a subsequent meeting would be arranged for all counsel and parents and circulated available dates for the meeting. Counsel for the parents objected due to their concern about the delay this would cause and that not permitting parents' counsel to attend the meeting violated the parents' Charter rights.

[10] On July 30th, society counsel and society staff met with the doctors by video conference. At that meeting the medical doctors were advised that the society would be arranging a further meeting for the parents and their counsel to provide them with the opportunity to ask questions and obtain information about the medical evidence with respect to Li's genetic disorder.

[11] On July 31st the society provided to parent's counsel a copy of the medical report with respect to Li's genetic clinic appointment. The society also provided parents' counsel with the names of the doctors who attended the meeting with society counsel and society staff the previous day as had been requested.

[12] With respect to the request for the release of the case note of the July 30th meeting, society counsel wrote, "With respect to the case note of my and my client's meeting with the doctors, we are claiming litigation privilege over that document, so it will not be disclosed."

[13] Counsel for the mother immediately responding stating that, "Your meeting with the doctors at HSC does not fall within the definition of litigation privilege…" and advised that if the society maintained this position, she would bring a motion and seek costs.

[14] Counsel for the father also sent an email to society counsel that day requesting the society's authority on which it based its claim for litigation privilege, including case law.

[15] On the same day, July 31st, parents' counsel submitted a 14B seeking production of the July 30th case note. Without seeing the case note, counsel alleged that the meeting had been with respect to discuss the care and treatment of the child and not for the purpose of preparing for court.

[16] On August 6th, society counsel responded to the 14B motion and stated that the dominant purpose of the meeting was held with the doctors as potential witnesses, for the society to assess its legal case and the evidence and to advise the witnesses of the upcoming trial. The subsequent meeting for all counsel to be held on August 13th was confirmed. Society counsel cited its authority in that 14B being the case of C.R. v. Children's Aid Society of Hamilton.

[17] The August 13th meeting took place by video conference. The parents, their counsel, as well as society staff and Dr. Cory and Dr. Chad participated. Counsel were invited to ask any questions they wished. Dr. Chad indicated that similar medical information had been provided in the earlier meeting with the society.

[18] On August 13th after the meeting, the society was served with a Request for Information jointly by the parents' counsel relating to the July 30th meeting. The society did not file a response indicating its position had not changed.

[19] On August 19th counsel for the mother served a Notice of Motion and supporting affidavit seeking "production of all notes and records held by the society in relation to the July 30th virtual meeting."

[20] On August 20th counsel for the mother served a corrected affidavit with a Factum in support of her motion.

[21] On Sunday, August 23rd, counsel for the father emailed society counsel and child's counsel to provide their timelines regarding filing materials so that a Confirmation be sent to the court. Counsel for the mother also emailed society counsel the next day regarding the Confirmation. Society counsel confirmed she would be filing a responding affidavit on August 25th.

[22] On August 25th, the society served the affidavit of Michelle Giustini, stating that the society was appending a redacted version of the case note of the July 30th meeting. Ms Giustini advised that the society had decided to waive its privilege regarding the case note. Inadvertently, an unredacted copy of the case note was attached to the affidavit. When the error was discovered, a redacted version was provided the next day.

[23] On August 26th counsel for the father wrote to society counsel at 7:34 a.m. requesting an answer to the question, "Who told the other participants at the meeting to not take case notes- and why. In addition to that question specifically was it you."

[24] Counsel for the mother and father sent further emails at 8:50 a.m. and 8:59 a.m. demanding that society counsel comply with the Request for Information that requested an affidavit from each participant at the July 30th meeting and to provide the information that had been requested.

[25] Counsel for the father stated in her email that, "The issue of no case notes is very troubling, if true (I note the FSW gives no information as to her basis for that belief or the enquiries she made) I repeat did you Ms Husain give that direction?"

[26] Society counsel responded within an hour that it was not appropriate for counsel to inquire about discussions between counsel and her client. Ms Husain confirmed that the society had waived litigation privilege over most of the case note of July 30th and no further affidavit or response to the Request for Information would be forthcoming.

[27] In response to yet another email that morning from mother's counsel, society counsel confirmed that, "Usually the agency practice is when more than one person attends a meeting, only one person takes notes, from what I understand. It was my understanding that that was the only note [that is, the case note of the FSW]. If there are multiple notes, I will advise you."

[28] Ms Giustini in her affidavit confirms that society counsel advised her that she did not have her own notes of the July 30th meeting and there are no other case notes except her own that were disclosed to parents' counsel.

[29] There continued to be multiple emails sent on August 26th and August 27th from parents' counsel demanding an answer to whether the case note of July 30th was the only note prepared and stating that a clear response had not been received and again requesting further answers to the Request for Information.

[30] On August 27th, counsel for the mother wrote society counsel, "your claim of litigation privilege because of the dominant purpose of the meeting was misleading (and that's a nice word for it) to the parties and the court, now that we have the notes."

[31] The hearing that took place on August 27th was moot as the society had agreed to waive litigation privilege. However, I advised all counsel that on my preliminary assessment of the issue I would have upheld the society's position that the July 30th meeting was privileged.

[32] Counsel for the mother raised the issue of costs. I advised that parties should attempt to settle the issue of costs. I suggested an offer to settle be submitted and if not settled then written submissions should be served.

[33] Prior to the date set for the production motion of August 27th and after receiving the society's affidavit of August 25th waiving litigation privilege, counsel for the mother submitted an offer to settle the issue of costs with the society paying costs of $4,47.15. The society did not respond to this offer.

[34] On August 28th counsel for the mother, filed her cost submissions with her Bill of Costs claiming costs of $5,819.50. The additional costs relate to the time spent on further correspondance, pleadings and reports and attending the virtual meeting with the parents, society staff and the HSC staff.

[35] Counsel for the mother filed a Factum. Counsel for the society also filed a Factum and a supporting affidavit of the family service worker, Michelle Giustini. Although it is not usual to file an affidavit in support of cost submissions, I found the affidavit useful in setting out in considerable detail the context of the claim for costs by parents' counsel against the society. I have reviewed the case law both counsel have relied upon.

General Principles

[36] Subrule 24(1) of the Family Law Rules ("FLR") provides guidance on costs in a family law context. The relevant sections with respect to the issues in this case are as follows:

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.

(2) This presumption does not apply in a child protection case or to a party that is a government agency.

(3) The court has discretion to award costs to or against a government agency, whether it is successful or unsuccessful.

[37] Accordingly, although the general rule that a successful party is entitled to costs does not apply to child protection cases, it is well settled law that costs may be awarded against a society in child protection proceedings although the range of circumstances in which such an award will be made is circumscribed.

[38] In Children's Aid Society of Algoma v. K.B. and T.S., Justice Gareau summarized the test to be applied as follows:

The test to attract costs against a Children's Aid Society in a child protection proceeding is a high one in that "there must be exceptional circumstances or unreasonable or unfair behaviour". The rationale for this approach is sound in that Children's Aid Societies ought not to be discouraged by the sanction of costs in carrying out a statutory mandate imposed on it to protect vulnerable children in our society.

[39] In Children's Aid Society of Hamilton v. K.L. and T.M., Justice Chappel explained why a special approach to costs in such cases was warranted as follows:

The special approach to costs claims against Children's Aid Societies recognizes the extremely important and difficult task which those agencies are entrusted with, and the challenging judgment calls which child welfare professionals must make on a regular basis in carrying out their mandate to protect children. Child protection staff must be encouraged to err on the side of caution in favour of protecting children in situations where they have reasonable grounds to do so, without having the added burden whenever they are required to make difficult judgment calls of having to embark upon a taxing cost/ benefit analysis as to whether they can financially afford to protect the child in question.

[40] At paragraph 14 of the decision, Justice Chappel then summarized the general principles that apply when costs are claimed against a child protection agency as follows:

1. Child protection agencies do not enjoy immunity from a costs award.

2. However, the starting point in analyzing a claim for costs against a child protection agency is that the child welfare professionals should not be penalized for carrying out their statutory obligation to protect children.

3. The approach to costs as against child welfare agencies must balance the importance of encouraging child protection professionals to err on the side of protecting children and the need to ensure that those professionals exercise good faith, due diligence and reason in carrying out their statutory mandate.

4. The high threshold of "bad faith" is not the standard by which to determine a claim for costs against a child protection agency.

5. Costs will generally only be awarded against a Children's Aid Society in circumstances where the public at large would perceive that the Society has acted in a patently unfair and indefensible manner.

6. A Society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it very difficult to weigh and balance the evidence and predict the legal outcome.

7. Important factors to consider in deciding whether costs against a Society are appropriate include the following:

   i. Has the Society conducted a thorough investigation of the issues in question?

   ii. Has the Society remained open minded about possible versions of relevant events?

   iii. Has the Society reassessed its position as more information became available?

   iv. Has the Society been respectful of the rights and dignity of the children and parents involved in the case?

   v. In cases involving procedural impropriety on the part of the Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society's efforts to diligently carry out its statutory mandate of protecting children.

[41] In the recent case of Windsor-Essex Children's Aid Society v. E.W., the Ontario Court of Appeal applied the "exceptional circumstances" test in dismissing a claim for costs against a child protection society.

[42] In the context of determining costs, the court is also governed by the general law regarding how costs are to be awarded.

[43] In the Factum filed on behalf of the mother, counsel refers to the case of Berta v. Berta for the proposition that the preferable approach in family law cases is to have costs generally approach full recovery as long as the successful party has behaved reasonably and the costs are proportional to the issues and the result. That case in turn relied on the case of Biant v. Sagoo.

[44] However, the Ontario Court of Appeal in the case of Beaver v. Hill explains the misunderstanding of that approach. As this is a frequent error made by counsel despite the fact that the case of Beaver v. Hill was released in 2018, I set out the court's entire explanation at paragraphs 8 to 11 as follows:

[8] Yet, that is not how the costs in this case were determined. Rather, the resulting award approached a full recovery amount. In defence of that result, the respondent relies on what is contended to be the principle from Biant v. Sagoo, [2001] O.J. No. 3693, 20 R.F.L. (5th) 284 (S.C.J.) that costs in family proceedings should "generally approach full recovery". I would make a couple of points in response to that contention.

[9] First, while the judge in Biant does make that statement, it is based on two decisions of other Superior Court judges, a close reading of which do not support the thrust of that statement. What those other cases do establish is that under the Family Law Rules, O. Reg. 114/99, judges are not constrained to the normal scales of costs found in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, since no scales of costs are mentioned in the Family Law Rules. Also, the Family Law Rules expressly provide that, depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded.

[10] Second, the respondent's assertion that this court's decision in Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730 supports the "full recovery" approach to costs in family matters also reflects a failure to read the decision closely. What this court endorsed in that case was the principle that "a successful party in a family law case is presumptively entitled to costs" (at para. 94) subject, though, to the factors set out in Rule 24. This caveat is an important one since, as this court pointed out in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321, the Family Law Rules "embody a philosophy peculiar to a lawsuit that involves a family" (at para. 11).

[11] There is no provision in the Family Law Rules that provides for a general approach of "close to full recovery" costs. Rather, r. 24(12) sets out the appropriate considerations in fixing the quantum of costs.

[45] Therefore, in setting costs the court is required to consider the factors in FLR 24(12) as follows:

(12) In setting the amount of costs, the court shall consider:

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party's behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter

[46] As the wording of the rule makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.

[47] In Serra v. Serra, the Ontario Court of Appeal confirmed that the FLR are designed to foster three important principles:

1. to partially indemnify successful litigants for the cost of litigation

2. to encourage settlement; and

3. to discourage and sanction in appropriate behaviour by litigants.

[48] FLR 2(2) adds a fourth fundamental purpose for costs to ensure that the primary objective of the FLR is met and that cases are dealt with justly. This provision needs to be to read in conjunction with FLR 24.

[49] With respect to full recovery of costs, FLR only expressly contemplates full recovery of costs in specific circumstances, where a party behaved unreasonably, in bad faith or has beat an offer to settle under FLR 18(14).

Discussion

[50] This claim for costs is unique as it arises in the context of a motion for disclosure of a meeting over which the society initially claimed litigation privilege that was rendered moot after the society waived privilege.

[51] However, costs can still be claimed even if a motion is resolved as counsel spend time preparing the materials for the motion and time to preparing their submissions.

[52] In this case, counsel also prepared a Factum on the issue of litigation privilege. In total based on counsel for mother's Bill of Costs she spent 22.7 hours not including attending a virtual meeting on August 13th with all counsel and Hospital for Sick Children medical personnel.

[53] At the hearing date of the motion, I made it clear to all counsel that on my preliminary assessment of the issue I would have upheld the society's position that the meeting of July 30th was privileged.

[54] This is a difficult and complex case, involving young vulnerable children, severe allegations of harm with respect to Li and then a risk of harm to another infant Ly who was born subsequently. The possibility that Li's severe lack of development could be a result of a genetic abnormality required the society to investigate and reassess the strength of their case.

[55] This involved a frank discussion with the HCS medical personnel. It is the society's duty on an ongoing basis to assess the strength of its case, remain open to alternate explanations and reassess its position. To do so, society counsel and society staff needed the ability to do so within the context of privacy due to the ongoing litigation.

[56] In fact, in many of the cases cited by counsel for parents, costs are sought against a society for not investigating thoroughly especially as new facts become known to the society.

[57] It is important to note that the society did not waive litigation privilege because it determined that privilege did not apply but rather because it did not wish to further delay the proceedings. The society determined that if the case note was not released there could be an appeal of that order or that the lack of disclosure could be raised as a ground of appeal of the outcome of the anticipated trial.

[58] I find that the society acted completely reasonably with respect to this issue.

[59] In this case, after the July 30th meeting, counsel for the parents were provided with the medical report with respect to the child's genetic disorder.

[60] After only a 2 week delay, a meeting was arranged for all counsel, the parents and society counsel and society staff. Parents' counsel had every opportunity during this meeting to obtain any information they wished and ask any questions of the medical personnel.

[61] I agree with the submissions of society counsel that I would have also expected that after that meeting, parents' counsel would have been satisfied with the information they obtained. If not, there was nothing preventing them from further contacting the medical staff at HSC.

[62] Despite counsel for the mother and father's attendance at the August 13th meeting and despite being told that the society had been provided with the same medical information at their private meeting on July 30th, parents' counsel served a Request for Information.

[63] Again, despite being advised who was at the meeting and that no written information was received, counsel persisted and made innuendos against society counsel that in my view were totally inappropriate.

[64] Even after receiving the case note of the family service worker, parents' counsel asked what instructions society counsel had given her client and questioning the integrity of society counsel. Parents' counsel are experienced counsel and should be aware that it is entirely inappropriate to question what instructions any counsel gives their client. There is no exception with respect to the solicitor client relationship between society counsel and their client.

[65] I have outlined the emails sent by parents' counsel to society counsel while she was on holidays, on a Sunday and the multiple emails sent within hours on a single day. This practice of expecting counsel to be at the beck and call of opposing counsel everyday and at all hours is something that the court is seeing in far too many cases. There appears to be an expectation that regardless of when an email is received it must be responded to with no regard for regular business days and regular business hours.

[66] None of the case cited by counsel deal with the unique situation that arose in this case. However, the general principles are applicable and have been considered by the court.

[67] I find that the society was entitled to meet privately with the medical staff in order to fully understand the new genetic information and to assess how that impacted on their position before the court and how it impacted the evidence that the witnesses would present to the court. For the parents' counsel to assume that they should be privy to that discussion, whether it was recorded in the case note or not, is a serious misunderstanding of the duty and obligation of the society to investigate and assess their case on an ongoing basis under the protection and privacy of litigation privilege.

[68] I doubt that the parents' counsel would permit society counsel to be part of their interviews with their experts as they prepare them for trial.

[69] Here the society acted in ways that preserved their rights but provided discourse to the society. Further, to avoid any prejudice to the parents arranged a timely meeting for parents' counsel with the medical staff so that they would have full disclosure of the new medical evidence, ask any questions they wished and then further to avoid any further delay the society released the case note of their July 30th meeting.

[70] I find that parents' counsel became unnecessarily fixated on the July 30th meeting, incurred expenses and spent time on this issue that was unwarranted.

[71] I find there was no impropriety by the society and that the society acted reasonably.

[72] The parents' claim for costs is dismissed.

Released: November 2, 2020

Signed: Justice Roselyn Zisman