Court File and Parties

Court File No.: CV-18-76800 Date: 2018/10/29 Court of Ontario, Superior Court of Justice

In the matter of the Substitute Decisions Act, 1992, S.O. 1992, c. 30

Re: Leopold Edwin Siberg by his litigation guardian Maria Amati, Applicant And: Bruyère Continuing Care Inc. o/a Saint-Vincent Hospital, Respondent

Before: Mr. Justice C. MacLeod

Counsel: Arthur Ayers, for the Applicant Roberto Ghignone, for the Respondent

Heard: Cost submissions in writing

Costs Decision

[1] On July 6th, 2018 I released a decision denying the motion of the applicant for injunctive relief but I made an order for preservation of evidence (2018 ONSC 4235). I have now received written submissions on costs.

[2] The respondent is entitled to costs of this motion. I agree with the submission of counsel for the respondent that the costs should be awarded on a substantial indemnity scale.

[3] Firstly, the applicant made an inappropriate attempt to bring the motion ex parte. There was no justification for this particularly because the issues brought before the court had already been the subject of negotiation between counsel for the applicant and counsel for the hospital. The applicant knew the hospital had counsel and could easily have given him notice.

[4] Despite delivery of voluminous material in support of the motion, when the matter was brought back to court with proper notice, the court was not persuaded the relief sought by the applicant was appropriate, necessary or just. Whatever merit there may be in the appellant’s allegations against the hospital, the mandatory orders sought in the notice of motion were overly broad and would have been a significant intrusion into the management, operation and labour relations of a public institution. As noted in my reasons, there are various internal and regulatory complaints processes that the applicant has already initiated and that are now underway.

[5] While the issues of patient care and elder abuse are important and serious issues, the procedure adopted by the applicant in this case was ill conceived and unjustified. According to the submissions I received, the applicant spent over $42,000 pursuing this matter while the hospital spent over $16,000 responding to it.

[6] Under the circumstances, the respondent’s request for substantial indemnity is reasonable.

[7] The applicant shall pay costs fixed at $15,000.00 on a substantial indemnity scale and payable within 30 days.

Mr. Justice C. MacLeod Date: October 29, 2018

Released: October 29, 2018