COURT FILE NO.: CV-16-70492

DATE: 2022/05/24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M. E.-H. and M. A.-R., Plaintiffs

AND

The Children’s Aid Society of Ottawa, The Children’s Aid Society of the Region of Peel, Kristine Pearce, and Dr. Louise Murray, Defendants

BEFORE: Madam Justice Robyn M. Ryan Bell

COUNSEL: M. E.-H., self-represented, responding party Giovanna Asaro, for the moving parties, The Children’s Aid Society of Ottawa and Kristine Pearce

HEARD: In writing

costs ENDORSEMENT

Overview

[1] The Children’s Aid Society of Ottawa and Kristine Pearce (the “Ottawa CAS defendants”) moved to dismiss Mr. E.-H.’s action under r. 21 of the Rules of Civil Procedure.[^1] In my endorsement released on April 14, 2022,[^2] I dismissed Mr. E.-H.’s action on the basis that it was an abuse of the process of the court. I also concluded that the statement of claim did not disclose a reasonable cause of action. This is my decision on costs of the motion and the action.

[2] The Ottawa CAS defendants seek their costs on a substantial indemnity basis in the amount of $22,022.97. They submit that substantial indemnity costs are warranted because of (i) the allegations made by Mr. E.-H. against them, and in particular, against Ms. Pearce; and (ii) their offer to settle on the basis of a dismissal of the action, without costs.

[3] Mr. E.-H. submits the following in response: (i) the costs of the Ottawa CAS defendants are “hugely exaggerated and unreasonable”; (ii) no offer to settle was ever made by the Ottawa CAS defendants; (iii) Ms. Pearce “has indeed made false statements”; (iv) his court action was in the public interest; (v) the Ottawa CAS defendants unduly delayed in bringing their motion; and (vi) he is unable to pay costs.

[4] Elevated costs may be warranted in two circumstances. The first is where, as a result of an offer to settle under r. 49, substantial indemnity costs are explicitly authorized. The second circumstance is where a party has engaged in conduct that is reprehensible, scandalous, or outrageous: Davies v. Clarington (Municipality),[^3] at para. 28.

[5] Mr. E.-H.’s submission that there was no offer to settle by the Ottawa CAS defendants is incorrect. An offer to settle litigation on a without costs basis may, depending on the stage of litigation, contain an element of compromise.[^4] However, I need not determine if elevated costs are warranted on the basis of a r. 49 offer to settle because in my view, elevated costs are clearly warranted based on the allegations made in the statement of claim against the Ottawa CAS defendants.

[6] In the statement of claim, Mr. E.-H. alleged that the warrant to apprehend was obtained on the basis of false statements made under oath by Ms. Pearce and that the Ottawa CAS defendants had engaged in deliberate unlawful conduct. As I noted at para. 56 of my previous endorsement, the family court did not accept Mr. E.-H.’s submission that the Ottawa CAS defendants had obtained the warrant to apprehend on false evidence. Mr. E.-H. persists in making these allegations in the context of his submissions on costs.

[7] The Court of Appeal for Ontario has recognized that substantial indemnity costs are warranted in cases in which unfounded allegations of fraud or involving “other allegations of improper conduct seriously prejudicial to the character or reputation of a party” have been made: Murano v. Bank of Montreal.[^5] The allegations made against the Ottawa CAS defendants were of precisely this nature: Mr. E.-H. alleged that Ms. Pearce filed false evidence with the family court in order to apprehend the children and to inflict harm on him.

[8] The Ottawa CAS defendants are entitled to their costs on a substantial indemnity basis.

[9] As for the quantum of costs, the overarching principle is that costs “should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”[^6] The incurring of costs and time spent by counsel is essentially a judgment exercise. The prudence of counsel’s judgment must be considered at the time the work was done. It is inappropriate to apply a test of hindsight to determine whether the time spent was reasonably necessary to advance the client’s position.

[10] Mr. E.-H. maintains that the costs of the Ottawa CAS defendants are greatly exaggerated and unreasonable. He does not specify whether he takes issue with the time spent or the rates charged by counsel or both. I find the rates charged by counsel to be reasonable.

[11] The Ottawa CAS defendants were wholly successful on their motion and the action has been dismissed. In addition to the abuse of process submission, nine causes of action or alleged causes of action were addressed on the motion. The time spent by counsel – a total of 42 hours – does not seem to me to be excessive, having regard to the nature of the allegations, the complexity of the motion, and the result achieved on the motion. I would not, however, allow time for the student-at-law (23.6 hours).

[12] As for Mr. E.-H.’s remaining submissions, his court action was not brought in the public interest. This was a civil action in which Mr. E.-H. sought damages from the defendants in the total amount of $2.6 million for alleged harm to him.

[13] I addressed Mr. E.-H.’s submission that the Ottawa CAS defendants delayed unduly in bringing their motion in my previous endorsement at paras. 20-25. I noted that the case was still at the pleadings stage, that the Ottawa CAS defendants had invited Mr. E.-H. to withdraw his action, that they had sought his cooperation in scheduling their motion, and that they ultimately had to request a case conference to set a date for the motion. I identified the COVID-19 pandemic as a relevant contextual factor. There was no undue delay by the Ottawa CAS defendants.

[14] Finally, Mr. E.-H. asserts that he is unable to pay costs. I do not have any evidence before me to determine whether Mr. E.-H. is unable to pay costs. I place no weight on this assertion given the nature of the allegations made in the claim against the Ottawa CAS defendants and in circumstances where the Ottawa CAS defendants offered to resolve the case on the basis of a dismissal of the action, without costs.

[15] For these reasons, I find that the Ottawa CAS defendants are entitled to their costs of the motion and the action on a substantial indemnity basis, which I fix in the amount of $19,000, all inclusive. This amount is to be paid by Mr. E.-H. to the Ottawa CAS defendants within 60 days.

Madam Justice Robyn M. Ryan Bell

Date: May 24, 2022

COURT FILE NO.: CV-16-70492

DATE: 2022/05/24

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: M. E.-H. and M. A.-R., Plaintiffs

AND

The Children’s Aid Society of Ottawa, The Children’s Aid Society of the Region of Peel, Kristine Pearce, and Dr. Louise Murray, Defendants

COUNSEL: M. E.-H., self-represented, responding party Giovanna Asaro, for the moving parties, The Children’s Aid Society of Ottawa and Kristine Pearce

costs ENDORSEMENT

Justice Ryan Bell

Released: May 24, 2022

[^1]: R.R.O. 1990, Reg. 194. [^2]: E.-H. v. The Children’s Aid Society of Ottawa, 2022 ONSC 2324. [^3]: 2009 ONCA 722, 100 O.R. (3d) 66. [^4]: See Mundinger v. Ashton, 2020 ONSC 2024, at para. 20; R.C. and J.M. v. Western Assurance Company, 2022 ONSC 899, at paras. 12-13. [^5]: (1998), 1998 5633 (ON CA), 41 O.R. (3d) 222. [^6]: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA).