COSTS ENDORSEMENT on summary judgment motion

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

Domenico Polla, for the Defendant, Her Majesty the Queen in Right of Ontario

Giovanna Asaro, for the Defendant, the Children’s Aid Society of Toronto

HEARD: August 7, 2019

[1] On September 23, 2019 I released my Judgment in this matter, granting the defendants’ summary judgment motion and dismissing M.E.’s action against Ontario and the Children’s Aid Society of Toronto (“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. On the same day, I released Reasons for Decision dismissing a motion to hold CAST, its counsel, Giovanna Asaro, and her legal assistant, Ada Lee, in contempt: M.E. et al. v. Ontario, 2019 ONSC 5141. This endorsement addresses costs in the action. I address costs for the contempt motion in a separate endorsement in that proceeding.

[2] The defendants were entirely successful in the action, which involved serious allegations of wrongdoing by CAST arising from the plaintiff’s time, as an adolescent, in the care of CAST. On the other hand, the plaintiff, who was self-represented, was upset to learn that documents relating to her youth criminal justice matters, from when she was a youth many years ago, remained in her CAST file. In this regard, she presents as a sympathetic person who should not, in my view, be punished for bringing this action. At the same time, however, she had, and has, other avenues to have her file reviewed, purged and corrected, and so this lawsuit was unnecessary.

[3] In seeking costs, the defendants recognize the vulnerable position of the plaintiff and for that reason do not seek costs on a substantial indemnity basis, which they submit they would otherwise be entitled due to the unmeritorious nature of the claim and the serious allegations that were made. They also draw my attention to an offer to permit the plaintiff to have the action dismissed without costs made in November 2016, the warnings given by the case management judge of the serious cost consequences that could result from a dismissal of the action, and Rule 20.06 regarding costs on summary judgment motions.

[4] I have received brief submissions from the defendants, but no submissions from the plaintiff.

[5] In my view the usual conclusion that costs follow the event should apply in this case. The only issue is quantum.

[6] Under the Courts of Justice Act, s. 131(1), I have broad discretion when determining costs. Although Rule 57.01(1) sets out factors to be considered, the overall objective is to fix 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, 2004 14579 (ON CA), 2004 14579 (Ont. C.A.). The consideration of what is “fair and reasonable for the unsuccessful party to pay” is particularly relevant in this case having regard to the nature of the claim and the circumstances of the plaintiff.

[7] The defendants seek their unreduced partial indemnity costs set out in their Bill of Costs totalling over $60,000, including HST and disbursements. In my view this is excessive. I do not accept that the defendants would not, in this case, be otherwise entitled to costs on a substantial indemnity basis; consequently, given the recognition of the special position of the plaintiff, there should be a reduction from the rather large amount sought on the partial indemnity scale. In reaching this conclusion, I do not take issue with the reasonableness of the amount of time set out in the Bill of Costs, or the actual fees incurred. The action raised many factual and legal issues. It took two days to argue, albeit including the contempt motion, and my Reasons for Judgment were lengthy.

[8] The defendants’ actual costs in defending this proceeding were over $78,000, including HST and disbursements. In my view, an appropriate costs award would be approximately half that amount, and I order that costs of $35,000, inclusive of HST and disbursements, be paid, if demanded, by the plaintiff to the defendants. This is in addition to my costs award in the contempt proceeding.

Schabas J.

Date: 2019-12-17