DATE : October 20, 2021
ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario
IN THE MATTER OF:
AN APPLICATION BY THE OFFICE OF THE CHILDREN’S LAWYER PURSUANT TO SECTIONS 119 AND 123 OF THE YOUTH CRIMINAL JUSTICE ACT FOR ACCESS TO YOUTH RECORDS IN RELATION TO A MATTER PRESENTLY BEFORE THE SUPERIOR COURT IN TORONTO
(Court File No. FS-19-12971)
RULING ON COSTS
Duncan J.
[1] The Office of the Children’s Lawyer (OCL) brought an application for an Order pursuant to section 119 or 123 of the Youth Criminal Justice Act granting access to youth records coming under the protection of section 118 of the YCJA.
[2] The Respondent, now an adult, is a party to a divorce proceeding being held in the Family Court in Toronto. Parenting and decision making in respect to the child of the dissolving marriage are in issue.
[3] A judge of that Court had requested the intervention of the OCL pursuant to s 112 of the Courts of Justice Act. In gathering information for preparation of a report to the Court, the OCL became aware of a “significant finding” under the YCJA made against the Respondent.
[4] I dismissed the application by judgment given August 9 2021.
[5] An issue of costs was raised by the Respondent at the time of the application and was adjourned for consideration. Written submissions were received from the Respondent and the OCL on that issue. The Respondent now seeks costs against the OCL or, in the alternative, seeks an Order for appointment (and funding) of counsel.
[6] These are my reasons for decision on these issues. I will deal with the alternative submission first.
Appointment of Counsel
[7] The Respondent rather vaguely pleads this alternative remedy. It is mentioned in only one paragraph of her submissions (para 4). No argument is presented in support nor is any statute, rule or caselaw cited as a source of authority to make such an Order. It is not mentioned in the final prayer for relief.
[8] The Applicant OCL however has referred to section 25 of the YCJA as being available to the Respondent as an alternative that could have been pursued – but wasn’t – instead of making a claim for costs. [1]
[9] However, I think the OCL has overlooked subsection 25(3) – it is not mentioned in the written submission nor included in the statutory provisions in the appendix to those submissions. That section limits the appointment of counsel to certain proceedings under the YCJA – and does not include a proceeding to seek access to records. If there was any doubt about it, the Court of Appeal in R v L.S. (2006), 2006 ONCA 40609, 215 C.C.C. (3d) 246, has made it clear that that the appointment power in section 25 is limited (and strictly so) to the enumerated proceedings.
[10] While this is dispositive of any possible reliance on section 25, it should also be mentioned that the application of the section in this case faces other significant hurdles such as the retroactivity of the proposed Order and the Respondent being well into adulthood at this point in time. [2]
Rowbotham
[11] While not specifically raised as a possible source of authority for funding of counsel, I will consider whether a Rowbotham order is available and appropriate.
[12] In R v Rowbotham (1988) 1988 ONCA 147, 41 CCC 3d 1 (Ont CA), the Court held that in serious, complex or lengthy criminal matters where the accused was impecunious and had been denied legal aid, the Court had authority to order that counsel be funded at state expense in order to preserve his right to fundamental justice and a fair trial. The principle has been extended into non-criminal matters such as child protection hearings: New Brunswick (Minister of Health and Community Services) v. G.(J.) 1999 SCC 653, [1999] 3 S.C.R. 46.
[13] The appointment of counsel is based on fair trial concerns. I can not see that such an order could ever be made in respect of a trial or proceeding, as in this case, that has already occurred with the full assistance of very capable counsel. In my view, Rowbotham orders are not intended for the settling of accounts or compensation for the costs of legal services already rendered. [3]
Costs
[14] The jurisdiction to award costs in a legal proceeding must be based on some statute, rule of court or recognized inherent authority. In this case the Respondent bases her claim on Rule 57 of the Rules of Civil Procedure. The foundation for that Rule comes from section 131 of the Courts of Justice Act which in turn applies only to civil proceedings: section 95 CJA
131 (1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. R.S.O. 1990, c. C.43, s. 131 (1).
95 (1) This Part [4] applies to civil proceedings in courts of Ontario
[15] The question then arises: Is a records access application a civil or criminal proceeding? The distinction is important. In civil cases costs are generally awarded to the successful party. However, in criminal cases, costs are rarely ordered: R v Tiffin 2008 ONCA 306: [5]
94 “In circumstances of a criminal prosecution there are essentially two instances when costs may be awarded: (i) in cases of misconduct by the Crown; and (ii) in other exceptional circumstances where “fairness requires that the individual litigant not carry the financial burden flowing from his or her involvement in the litigation.
95 While the term “exceptional circumstances” has not been specifically defined, it requires more than a case of general importance, or that a person has suffered losses for which he or she is not responsible.”
[16] A records access application has none of the hallmarks of a criminal matter. There is no charge; no prosecutor; no plea; no trial; no acquittal or conviction; no punishment. In my opinion, if a proceeding is not criminal - and therefore not excluded by s 95 CJA - then it follows that it is civil or at least is governed by section 131 CJA and Rule 57 with respect to costs. [6]
[17] Accordingly, the award of costs on this application is entirely in the discretion of the Court and can be made simply on the basis of success, without proof of misconduct or fault by the opposite party. This is as it should be. An application for access to youth records can be made by many, including anyone who can satisfy the court that they have a valid interest. This might include those with less than benign motives or intentions who should properly be deterred by the prospect of being responsible for the respondent’s costs.
[18] The exercise of discretion will include those factors enumerated in Rule 57 and may take into account the special status and role of the OCL as discussed below.
Costs Against the OCL
[19] The Applicant OCL first submits that it has immunity from a costs order by virtue of section 142 of the CJA:
142 A person is not liable for any act done in good faith in accordance with an order or process of a court in Ontario. R.S.O. 1990, c. C.43, s. 142.
[20] I doubt that this section applies to an award of costs. Rather I think it seeks to shelter against substantive liability in tort and the like. Costs are part of the price of conducting litigation and not an imposition of liability in the same sense. Any ambiguity in the meaning of this section should be resolved in favour of a narrow interpretation.
[21] Significantly, this section was not mentioned in the cases discussed below that dealt at length with OCL responsibility for costs. If the section provided the protection now claimed by the Applicant, it would have been the simple answer in those cases.
[22] There is a distinction between party costs and non-party costs. The authority to award costs against a non-party is grounded in the inherent jurisdiction of superior courts. [7] Such awards are exceptional.
[23] In Eustace v. Eustace, 2018 ONSC 2367 the Divisional Court discussed the question of costs against the non-party OCL in family law proceedings.
[28] In the recent decision of Proulx v. Proulx, 2017 ONSC 5134, D.L. Chappel J. conducted a helpful and thorough analysis of the caselaw surrounding the question of when and if costs should be awarded against the OCL. I would adopt the following principles that emerge from her analysis:
(i) If the OCL has acted in bad faith costs should be awarded against it.
(ii) Costs may “also be ordered against the OCL in exceptional circumstances where its actions fall short of bad faith, but it engaged in patently unreasonable, unfair or indefensible conduct that exceeded its statutory mandate or had a significantly deleterious impact on the litigation (para. 35(b)).
[29] These principles establish a stringent test for awarding costs against a non-party that is consistent with the test articulated by the Court of Appeal in R v 974649 Ontario Inc.. This is as it should be. The OCL is a non-party. Further it is a non-party who has been invited to participate in the litigation by the court.
[24] But this test, as the Court makes clear, applies where the OCL is a non-party. It corresponds to the general rule respecting non-party costs (Eustace par 29). That is not the situation here. In my view the OCL was a party to the access proceedings than were before me. It initiated the application. It identified itself as the Applicant in the originating Notice and all subsequent filings. Counsel for the OCL conducted the proceedings. No other party was directly involved. [8]
[25] The question then becomes whether the same non-party stringent test above applies when the OCL is a party to a proceeding. In Eustace (paras 30-32) the Court adopts and quotes from Proulx (also non-party case) where the Court identified considerations unique to the role of the OCL:
[30] In discussing the threshold for awarding costs against the OCL, Chappel J. [made] some other important, points about the nature of the OCL’s mandate. They reinforce the need for a high threshold when it comes to awarding costs against the OCL.
[31] First, at para. 36, Chappel J. states:
One consideration is that the OCL does not proactively seek to participate in custody and access cases. Rather, its involvement derives from a court order specifically seeking accorded some degree of shelter from costs liability. Another factor that supports a higher threshold for costs liability against the OCL is that it represents the needs and interests of minor children. Representation of children involves many unique challenges, including special difficulties in ascertaining the client’s capacity, their level of maturity, their wishes and whether there are contextual factors and dynamics that have improperly influenced their expressed views and preferences. Reaching a position on behalf of a child in custody and access cases often involves a delicate balancing of numerous factors. Adopting the usual approach to costs in Family Law cases to claims for costs against the OCL would have a chilling effect on genuine attempts by the OCL representatives to carry out this demanding role in a vigilant manner. Furthermore, given that children typically do not have their own financial resources, an award of costs against the OCL is essentially an award of costs against counsel, which is only appropriate in rare and exceptional circumstances.
[32] In addition, Chappel J. points out that in carrying out this complicated mandate, the OCL may legitimately form the view that that the best interests of the child requires it to take a position that runs contrary to the expressed wishes of the child. A costs award that sanctions the OCL if its position does not prevail at trial runs the risk of discouraging the OCL from bringing its best judgment to bear on what are often difficult and complex situations. As put by Chappel J. at para. 35(e) of her decision:
The process of formulating a position on behalf of a child in a custody and access case does not simply involve parroting the child’s stated wishes. It involves acquiring a sound appreciation of the overall context surrounding the child’s expressed views and preferences. Accordingly, in deciding upon a position, the OCL must consider important factors such as the competence and level of maturity of the child’s expressed views and preferences and the general circumstances surrounding those views and preferences. Formulating a position after balancing all of these considerations is not an exact science, but rather a complex exercise of discretion informed by specialized training and experience as an OCL representative. Ultimately, a consideration of all of these factors may lead counsel for the child to advance a position that deviates from the precise views and preferences that their client has expressed. To sanction child’s counsel simply for doing so through a costs award would seriously undermine the role and value of child representation in custody and access cases.
[26] Certainly, some of the considerations referred to in these passages also apply when the OCL is a party. But not all of them. The major distinction is that in this case the OCL was responsible for making the decision to seek the youth records and for the scope of the request. The costs incurred by the Respondent were directly caused by that decision. [9]
[27] The request as stated in the Application was for records “that may contain information about the Respondent’s mental health that may reflect upon her ability to parent her child.” Significantly the request was not for information about criminality as it may reflect on character or non-mental-health based propensities that might be relevant to ability or suitability to parent.
[28] The predicate for the request was thin at best. As stated in my reasons denying access, there was no indication that the Respondent had ever been diagnosed with a mental illness and even if she had, a non-discriminatory [10] nexus between that and her fitness to parent was never identified or articulated.
[29] The Respondent had initially consented to release of the records going back over a decade including the counselling and assessment records in the latter community part of her sentence and the entire 7 year period of her being a parent. The application to dig deeper and seek access beyond that was in my respectful view at least an error in judgment that failed to properly weigh the high level of privacy the law grants to youth records - further enhanced by the high expectation of privacy in medical/mental health records - against the speculative potential value to the family court of the additional material. [11]
[30] In conclusion, having regard to the role of the OCL and the valid reasons for treating it differently, referred to in Proulx and adopted in Eustace above, I am of the view that when the OCL it is a party to a youth records access application, it should generally not be responsible for the Respondent’s costs simply because the respondent prevails and access is denied. However where, as here, a conclusion is reached that the application for access was ill-considered and should not have been brought, the Respondent should be entitled to her costs. [12]
[31] The Applicant OCL has submitted that imposition of costs may have a chilling effect on its ability to fulfill its statutory mandate to protect and advocate for children. I recognize that possibility but would say that such a prospect would be no greater or more troubling than the impact might be on youth and former youth of requiring them to bear the cost of defence of their privacy rights. I suggest that a solution might be to amend the YCJA to include making appointment of counsel available for record access applications.
[32] In any event, my reasons exempt the OCL of liability for costs except in the limited circumstances described. Applications for access are and will continue to be rare; the occurrence of the limited circumstances and hence an award of costs will be even more rare. Any chill will be mild.
The Amount of Costs
[33] The Respondent has presented a Bill of Costs totalling $7689.85 for fees, disbursements, and GST. She has not included travel time (she does not practice in GTA) meals or mileage. She has billed at her Legal Aid rate of $122 per hour as opposed to her private rate of well over twice that. There were two days of court proceedings, research and preparation of affidavits, respondent’s application records, facta and casebooks.
[34] I regard this claim as being very modest and reasonable. It is less than what I am told is the going rate for defence of a simple impaired driving charge, for example. The full amount and more would have been eligible for payment if a section 25 or Rowbotham Order had been available. Finally, the submission of the OCL opposed any ward of costs but did not taken issue with the amount claimed.
[35] Costs are therefore awarded to the Respondent in the full amount claimed. [13]
October 20 2021 B Duncan J
[1] Written submissions of OCL para 32 - 37
[2] See s 25(11) YCJA limiting the section to those under 20 when charged with the offence for which appointment is sought. While not directly applicable here because there is no charge, it does provide some insight into legislative intention.
[3] A Rowbotham order might be available if brought at an early stage of an records access application
[4] Part 8 of the CJA which includes s 131.
[5] To same effect see: R v Garcia 2005 ONCA 4831, 2005 194 CCC3d 361; R v 974649 Ontario Inc. 2001 SCC 83, 2001 SCJ 81 at para 87.
[6] Leaving aside Family and Small Claims proceedings that have separate Rules.
[7] There is no such inherent jurisdiction in this humble court
[8] The Crown conducted a watching brief and assisted in the gathering of the records and maintaining continuity and security of them.
[9] The OCL was not obligated by the Family Court to seek access to the records. However, it is argued in the OCL submissions that it had to make the application because protected records and information had already been disclosed in the family proceedings. I do not see the logic in that. There was no reason why the cat could not be put back in the bag in family court (as has presumably now been done) without making an application for access to further protected information.
[10] That is, that people who have had mental illness are suspect - erratic, possibly dangerous and untrustworthy
[11] The decision to bring the application also had insufficient regard for the delay that would be caused in the Family Court proceeding that had already been delayed by covid.
[12] To be clear it is only the decision to bring the application for access that I respectfully criticize and take no issue with the OCL’s conduct of the proceedings. To the contrary the OCL acted in good faith, professionally and with commendable fairness. Tellingly, it assisted the Respondent in identifying and correcting breaches of the YCJA records provisions that had already occurred in the family law proceedings. Its submissions greatly assisted me with the novel issues raised in the access application.
[13] Had counsel for the respondent claimed her private rate and all her expenses, partial indemnity would have been appropriate. But the bill of costs has already been significantly pared down from what it could have been