Court File and Parties

COURT FILE NO.: CV-16-551203 DATE: 2019-12-17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M.E., T.M., R.M., AND T.F., Plaintiffs AND: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, CHILDREN’S AID SOCIETY OF TORONTO, AND DURHAM CHILDREN’S AID SOCIETY, Defendants

BEFORE: Schabas J.

COUNSEL: M.E., for herself Scott C. Hutchison and David Postel, for the Defendants, the Children’s Aid Society of Toronto, Giovanna Asaro, and Ada Lee

HEARD: August 7, 2019

Costs Endorsement on Contempt Motion

[1] On September 23, 2019 I released Reasons for Decision dismissing a motion to hold Children’s Aid Society of Toronto (“CAST”), its counsel, Giovanna Asaro, and her legal assistant, Ada Lee, in contempt: M.E. et al. v. Ontario, 2019 ONSC 5141. At the same time, I released Judgment dismissing M.E.’s action against Ontario and CAST for alleged wrongful acts arising from her time in care of CAST many years ago: M.E. et al. v. Ontario, 2019 ONSC 5138. The defendants in each matter now seek costs. This endorsement addresses costs in the contempt matter. I address costs for the action in a separate endorsement.

[2] The defendants were wholly successful on this motion which I found to be without merit. The plaintiff, who represented herself, was repeatedly warned of problems with this motion and of the risk of a costs award against her. On the other hand, the plaintiff is a self-represented litigant who was upset to learn that the file from her time in the care of CAST was available and contained information about her youth criminal justice proceedings.

[3] Bringing a contempt motion is a serious matter and in this case serious allegations of misconduct were made. There is no reason, in my view, to depart from the rule that costs should follow the event and be awarded to the defendants.

[4] Pursuant to the Courts of Justice Act, s. 131(1), the Court has a broad discretion when determining the issue of costs. Rule 57.01(1) of the Rules of Civil Procedure sets out the factors to be considered by the court when determining the issue of costs. The overall objective is to award an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Counsel for Ontario. I have considered these factors, as well as the principle of proportionality (R. 1.01(1.1)), keeping in mind that the court should seek to balance the indemnity principle with the fundamental objective of access to justice.

[5] In this case the defendants’ partial indemnity bill is $16,711.83, but they fairly note that the plaintiff’s circumstances may make a reduced award appropriate, and they seek an award of $10,000.

[6] In my view, having regard to the factors mentioned above, an appropriate award in this case is $7,500, inclusive of HST and disbursements.

Schabas J. Date: 2019-12-17