Citation: J.K. v. Ontario, 2017 ONSC 971
COURT FILE NO.: CV-16-543895CP
DATE: 20170209
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.K.
Plaintiff
– and –
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO
Defendant
– 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
COUNSEL:
Christopher A. Wayland, Jonathan Sydor and Richard Miller for the Defendant
C. Kirk Boggs for the Third Parties, 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.
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
REASONS FOR DECISION – COSTS
PERELL, J.
[1] J.K., the Plaintiff in this proposed class action under the Class Proceedings Act, 1992, S.O. 1992, c. 6, sued Her Majesty the Queen in Right of the Province of Ontario (“the Crown”) on behalf of all persons who while under the age of 18, were detained or incarcerated at a youth detention centre from January 1, 2007 to the present and were placed in secure isolation.
[2] The Crown, through the Ministry of Child and Youth Services (“MCYS”), operated or supervised the operation of the youth detention centres. There are 23 detention centres, and some are operated by the MCYS and some are operated by NGOs (non-government non-profit, organizations) that have signed service contracts with the Crown. Relying in part on indemnity provisions in service contracts, the Crown brought third party claims against the NGOs.
[3] J.K. and the NGOs respectively brought motions to have the Crown’s third party claims struck out or stayed. I granted the motions; see J.K. v. Ontario, 2016 ONSC 8047. I directed that if the parties could not agree about the matter of costs, then they could make submissions in writing.
[4] The Plaintiff and the Crown settled the matter of costs, but the NGOs and the Crown made submissions in writing.
[5] As the successful party, the NGOs claim costs on a partial indemnity basis of $26,616.45 for the action and $21,079.00 for the motion, for a total claim of $47,695.45, all inclusive of fees, disbursements, and HST. They assert that despite the steps taken by the Plaintiff to make it clear that the Class Members were only claiming against the Crown for its several liability, thereby obviating the basis for a claim for contribution and indemnity, the Crown persisted in resisting the motion to strike the third party claim and that it should pay for the costs of the action and the motion.
[6] The Crown does not dispute its liability for costs, but it submits that the claim for $47,695.45 is excessive and is beyond what the Crown could reasonably have expected to pay for its failure on the motion. The Crown submits that the NGOs should be awarded no more than $16,500 in costs for both the motion and the action.
[7] The Crown submits that at least until October 17, 2016, it was necessary to have joined the NGOs as third parties and that it was reasonable to resist the motion to strike their joinder. The Crown submits that the NGOs were only successful on the motion because of the amendments and clarifications made to the Plaintiff’s pleading in October 2016 and, therefore, the third parties should only receive costs in respect of fees and disbursements incurred after October 17, 2016.
[8] I disagree with this suggested approach. Before October 17, 2016, the NGOs were sued and they incurred legal expenses in instructing counsel to review the claims and to defend a third party claim that was eventually struck. They are entitled to their costs for this work. Once the Plaintiff’s pleadings were clarified there was the prospect that the NGOs would not make a claim for costs, but the Crown persisted in resisting the Plaintiff’s and the NGOs’ motion. Once again, the NGOs are entitled to their costs for the work after October 17, 2016.
[9] Costs should be awarded in accordance with the normative principles that guide the court’s discretion. In this regard, I agree with the Crown’s submissions that the costs are beyond the reasonable expectation of the unsuccessful party. In my opinion, the appropriate award for costs is $35,000, all inclusive.
[10] Order accordingly.
Perell, J.
Released: February 9, 2017
CITATION: J.K. v. Ontario, 2017 ONSC 971
COURT FILE NO.: CV-16-543895CP
DATE: 20170209
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.K.
Plaintiff
– and –
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO
Defendant
– 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
REASONS FOR DECISION - COSTS
PERELL J.
Released: February 9, 2017