SUPERIOR COURT OF JUSTICE - ONTARIO

PUBLICATION BAN PURSUANT TO THE CHILD AND FAMILY SERVICES ACT

Court File No.: FS1218352 and FS1218346
Date: 20130809

RE: Catholic Children’s Aid Society of Toronto, Respondent in the Appeal, Applicant on the motion

AND:

Office of the Children’s Lawyer, Appellant, Respondent on the motion

AND:

S.S.B., Appellant, supporting position of the Office of the Children's Lawyer on the motion

BEFORE: MESBUR J.

COUNSEL:
Fatima Husain, for the Catholic Children’s Aid Society of Toronto

Caterina Tempesta, for the Office of the Children's Lawyer

Deidre Newman, for the mother, S.S.B.

HEARD: in writing

C O S T S E N D O R S E M E N T

[1] The CCAST brought a motion to compel disclosure of certain notes and records of the Office of the Children's Lawyer’s clinical investigator. I determined those notes were subject to solicitor/client privilege and could not be disclosed. I dismissed the motion. In my reasons I was critical of the CCAST in its repetitive, persistent attempts to obtain the same material. I said:

In these circumstances I see it as manifestly unfair for the Society to make another attempt at obtaining information it could have sought a year ago, rather than on the eve of the appeal. Attempting to re-litigate issues that were already before the court is tantamount to an abuse of process. As has been said, a person should be “vexed” only once in the same cause.[^1]

[2] Now both the Office of the Children's Lawyer and the mother seek their costs of the motion before me. The Office of the Children's Lawyer asks for costs on a partial indemnity basis of $2,500. Similarly, the mother, who supported the Office of the Children's Lawyer’s position, seeks her partial indemnity costs, fixed at $2,417.91, all inclusive. I have no difficulty with the scale or quantum of costs either claims. The real issue is whether this is an appropriate case to require the CCAST to pay costs.

[3] The CCAST highlights rule 24 of the Family Law Rules, which governs costs. While rule 24(1) creates a presumption that a successful party is entitled to the costs of a motion, rule 24(2) specifically excludes that presumption in a child protection case or to a party that is a government agency. Rule 24(3), however, gives the court discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful. Since the society is a “government agency”, and the motion arose in the context of a child protection proceedings, there is no presumption here for costs against the society. Nevertheless, the saving provision of rule 24(3) permits the court to award costs either in favour of, or against the society in appropriate cases.

[4] Although there is no presumption for costs in a child protection case that does not mean costs are never awarded in child protection matters. The court retains its overriding jurisdiction under s. 131 of the Courts of Justice Act to award costs. Section 131(1) says:

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.

[5] Both the OCL and the mother have referred me to cases where costs have been awarded against a Children’s Aid Society. Generally speaking, costs have been awarded in cases where the court determines the Society has failed to investigate and re-assess the case properly,[^2] or where there has been procedural misconduct or irregularity which has led to the incurring of additional litigation and extra expense for the respondents.[^3]

[6] In Children’s Aid Society of the Niagara Region v. C.B.[^4] J.W. Quinn J set out a helpful list of factors for the court to consider in deciding whether to award costs against a society.

[7] He referred to a line of decisions that hold costs should not be awarded against a society unless there are exceptional circumstances. He noted that societies should not be punished for mere errors in judgment in carrying out their difficult and important statutory function. Nor should they be dissuaded from acting because of the spectre of a costs award. Nevertheless, a society is not shielded from costs “where its behaviour is unfair or indefensible or where exceptional circumstances exist.”[^5]

[8] Quinn J went on to note at paragraph 100 that subrule 24(2) does not save a children’s aid society on procedural issues. He concluded: “the general rule for ordering costs against a children’s aid society is that the society must have conducted itself in a manner that is unfair”[^6]

[9] Here, there is no suggestion the society has failed to investigate or properly re-assess the case. Both the OCL and the mother complain that the society’s actions amount to procedural misconduct or irregularity that should warrant an order for costs against the society.

[10] I agree. Here, the society’s procedural missteps and overreaching have resulted in increased costs and expenses for both the OCL and the mother. I am particularly troubled by the society’s statement in its costs submissions at paragraph 64 where it says:

In withdrawing its motion before a determination of the issue, on consent and with no costs, the Society believed that if necessary, it could renew the motion at a later date. [underlining in the original]

[11] The fact the parties consented to the withdrawal without costs speaks to the reasonableness of the opposing parties. It does not follow, however, that the society would be free to renew the motion whenever it wished to. The general rule is that a party who withdraws a motion pays the costs of that motion. It seems to me that rule is designed to protect a litigant from a party renewing the same motion over and over again, but withdrawing it just before it can be adjudicated. I have no idea why or how the society would have the idea that having withdrawn a motion, it could renew it at a later date with impunity. This notion flies in the face of the general principle that a litigant is not permitted to advance the same claim over and over again. It seems to me the society had a choice – it could pursue its motion during the trial, or withdraw the motion without its being pursued. I see no basis for the society to somehow reserve a right to try again at a later date. A litigant should be able to rely on a withdrawal of a motion as indicating that that issue has been dealt with, and will not be pursued again, unless there is a very specific reservation of the right to do so. I find it remarkable that the now society suggests “it was not attempting in any way to act in an unfair or unreasonable manner”[^7].

[12] In my view, this is one of those exceptional cases where it is appropriate to require the society to pay costs. Like any other litigant, the society must conduct itself according to the rules. It is given broad investigative scope, and cannot and should not be liable for costs for actions it takes in good faith in its duty to investigate cases. That, however, does not give a society licence to ignore the general rules of procedural fairness. When it does, it should be liable in costs.

[13] Here, I determined that the society’s actions verged on acting in bad faith. Both the OCL and the mother were put to considerable expense as a result. They are entitled to be compensated.

[14] As a result, the society will pay the OCL’s partial indemnity costs fixed at $2,500, and the mother’s partial indemnity costs fixed at $2,417.91.

[15] In passing, I must comment on Kenora-Patricia Child and Family Services v. A.M.[^8], which the society relies on. There, the court determined there was no statutory authority to order costs to the Children’s Lawyer as statutory counsel for the child.[^9] Although the court found no statutory authority to award costs to the Children’s Lawyer, it did note the overriding discretion offered by the Courts of Justice Act. That case, of course, is a decision of the Ontario Court of Justice, and does not bind this court. I would distinguish it in any case on the basis of the factual underpinnings of this case, and would exercise my discretion under s. 131 of the Courts of Justice Act to award costs against the society in favour of both the Office of the Children's Lawyer and the mother.

[16] As a result, the CCAST will pay the OCL’s costs on a partial indemnity basis, fixed at $2,500. It will also pay the mother’s costs on a partial indemnity basis, fixed at $2,417.91

MESBUR J.

Released: 20130809

[^1]: Danyluk v. Ainsworth Technologies, 2001 SCC 44, [2001] S.C.J. No. 46 (S.C.C.)

[^2]: See, for example, Children’s Aid Society of the County of Renfrew and the City of Pembroke v. R.G., [2005] O.J. No. 5648 (O.C.J.); Children’s Aid Society of the Niagara Region v. C.B. 2005 32915 (ON SC), [2005] O.J. No. 3878 (S.C.J.)

[^3]: Children’s Aid Society of London and Middlesex v. T.S.-V. 2013 ONSC 4517, [2013] O.J. No. 3141 (S.C.J. Family Court)

[^4]: 2005 32915 (ON SC), [2005] O.J. No. 3878 (S.C.J. Family Court)

[^5]: Ibid, paragraph 95

[^6]: Ibid paragraph 101

[^7]: Paragraph 64 of the society’s costs submissions

[^8]: [2005] O.J. No. 5305 (O.C.J.)

[^9]: Ibid at paragraph 31