Court File and Parties

COURT FILE NO.: CV-19-58809

DATE: 20220617

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Crystal Ramsay, Plaintiff

AND:

Family and Children’s Services Niagara, Hamilton Children’s Aid Society and James Wood, Defendants

BEFORE: MacNeil J.

COUNSEL: C. White – Lawyer for the Plaintiff/Responding Party C. Jenkins – Lawyer for the Defendant, Family and Children’s Services Niagara/ Moving Party J. de Vries – Lawyer for the Defendants, Hamilton Children’s Aid Society and James Wood/Moving Parties

HEARD: March 17, 2022 (via Zoom videoconference)

REASONS FOR DECISION ON MOTIONS

Overview

[1] The Defendants move under Rules 21 and 25 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”) to strike out portions of the statement of claim relating to negligence, defamation, and intentional infliction of mental suffering on the grounds that no reasonable cause of action is disclosed and/or the pleadings are deficient. The Defendants submit the court should not grant leave to amend any of the pleadings that they seek to have struck out.

[2] The Plaintiff objects to the striking of any allegations found in her statement of claim. In the alternative, she requests leave to amend the statement of claim.

Background

[3] Among the facts alleged in the statement of claim, which are to be taken as true and capable of being proven for the purposes of these motions, are the following:

a. The Plaintiff is employed by the Defendant, Family and Children’s Services Niagara (“FACS Niagara”), as a Kinship Services Worker. She has held this position for approximately 12 years. In this position, she has gained expertise in providing child protection services, developing and delivering competent clinical treatment service, identifying child neglect and abuse, and intervening with families and identifying their needs.

b. The Plaintiff is the paternal grandmother of two children. In this decision, I will refer to the first child, born in 2016, as “AA” and to the second child, born in 2018, as “BB” (collectively “the Children”).

c. Prior to AA’s birth, the Plaintiff contacted FACS Niagara because she was concerned about the placement and care of the unborn child. She made it clear to FACS Niagara that, in her experienced opinion, the best interests of AA would be served by removing the child from the care of her parents.

d. FACS Niagara undertook an investigation and, despite the Plaintiff’s advice and recommendations, it determined that it would be best to allow AA to remain with her mother.

e. The Plaintiff was very troubled by the FACS Niagara’s decision. As a result, she assisted her son in retaining a lawyer to seek temporary custody of AA. He was successful and the Plaintiff then cared for AA half-time, for the period from June to September 2017, and then full-time for some time thereafter.

f. FACS Niagara has a “sensitive file policy” which applies when there is reason to believe it could have a conflict of interest (“the Policy”). The Policy was not followed in this case until FACS Niagara was ordered by the court to transfer AA’s file to the Defendant, Hamilton Children’s Aid Society (“Hamilton CAS”), in or about September 2017.

g. Hamilton CAS caused an access schedule to be set up allowing AA’s mother up to 30 hours per week of access with the child. The Plaintiff was “greatly distressed” by this decision and she believed such access had “visible negative impacts” on the child.

h. Ultimately, the Plaintiff had to give up the legal battle to protect the Children as she did not have the resources to go to trial to seek guardianship.

i. The Defendant, James Wood (“Mr. Wood”), is a lawyer employed by Hamilton CAS. He sent correspondence to the Ontario College of Social Workers and Social Service Workers (“the College”) alleging professional misconduct on the part of the Plaintiff.

j. Mr. Wood spoke to the Plaintiff in an aggressive and confrontational manner outside of the courtroom.

k. The Plaintiff was excluded from meetings and was ostracized and isolated at work as a result of her continuing to advocate for what she believed was the best placement and services for AA.

l. FACS Niagara lied about the Plaintiff’s character and competence in court documents.

[4] On March 20, 2019, the Plaintiff commenced the within action against the Defendants alleging that their conduct has caused her to suffer workplace harassment, discrimination, negligence, mental suffering, and defamation.

[5] On or about March 10, 2020, Hamilton CAS and Mr. Wood served a demand for particulars respecting the Plaintiff’s defamation claims.

[6] In October 2020, the Defendants each served a motion to strike. Neither has yet served a statement of defence.

[7] On or about November 18, 2020, the Plaintiff responded to the demand for particulars and gave some further details relating to the defamatory statements allegedly made by Mr. Wood. She also stated that full particulars would be provided prior to trial.

Striking Out a Pleading

[8] In Deep v. Ontario, 2004 14527 (ON SC); affirmed 2005 10046 (ON CA), Spence J. summarizes the applicable tests under Rule 21 and Rule 25 for striking out pleadings as follows (at paras. 32-40):

Rule 21

[32] Rule 21.01(1)(b) provides that a judge may strike out a pleading if it discloses no reasonable cause of action. The purpose of a rule 21.01(1)(b) motion is to test whether a plaintiff’s allegations state a legally sufficient or substantively adequate claim. Where it is plain and obvious that is [sic] discloses no cause of action, it should be struck: Rule 21.01(1)(b); Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959 at 976-977.

[33] A claim will be found to be legally insufficient when either the allegations it contains do not give rise to a recognized cause of action, or it fails to plead the necessary legal elements of an otherwise recognized cause of action. As explained by Borins J.A. in Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4^th) 257 at p. 264 (C.A.),

In some cases, a statement of claim will be vulnerable to dismissal under rule 21.01(1)(b) because the plaintiff has sought relief for acts that are not proscribed under the law. The typical textbook example is a statement of claim that alleges that the defendant made a face at the plaintiff, or that the defendant drove a car of an offensive colour. In other cases, however, the statement of claim may be defective because it has failed to allege the necessary elements of a claim that, if properly pleaded, would constitute a reasonable cause of action.

[34] In order to survive the second type of rule 21.01(1)(b) motion, a plaintiff must, at minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. The absence of a necessary element of the cause of action will constitute a radical defect on the basis of which it is plain and obvious that the plaintiff cannot succeed. Accordingly, such a claim should be struck out.

[35] On a motion under Rule 21, the plaintiff has the benefit of an assumption that the facts pleaded are true or capable of being proven. Accordingly, the court is left to consider the legal sufficiency of the plaintiff’s claim stated in its best and most positive light by the plaintiff himself. However, a court is not required to take “allegations based on assumptions and speculations” as true for the purpose of assessing the cause of action at issue. A party may therefore not supply a missing element of a cause of action by pleading speculative allegations: Region Plaza Inc. v. Hamilton Wentworth (Regional Municipality) (1990), 1990 6761 (ON SC), 12 O.R. (3d) 750 at 754 (H.C.).

[36] Rule 21.01(1)(b) permits the court to strike out less than the entire pleading, where the portion being struck is a distinct purported cause of action. In exercising its discretion, the court should consider whether or not “paring down” the pleadings will actually result in savings of money or time for the parties.

Montgomery v. Scholl-Plough Can. Inc. (1989), 1989 4045 (ON SC), 70 O.R. (2d) 385.

Rule 25

[37] With respect to the need to plead material facts in support of allegations, Rule 25.06 provides that:

25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved. R.R.O. 1990, Reg. 194, r. 25.06(1).

(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded. R.R.O. 1990, Reg. 194, r. 25.06(2).

(8) Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred. O. Reg. 61/96, s. 1.

[38] Allegations of legal conclusions are not facts and are insufficient for the purposes of pleading. This is particularly so where allegations of intentional or malicious conduct are made. A plaintiff must plead circumstances, particulars or facts which are sufficient to enable a trier of fact to properly infer intentional or malicious conduct.

Conacher v. Rosedale Golf Assn. Ltd., [2002] O.J. No. 575 (S.C.J.)

Pispidikis v. Scroggie (2003), 2002 23209 (ON SC), 62 O.R. (3d) 596 at paras. 35-36 (S.C.J.)

Wilson v. Toronto (Metropolitan) Police Service, [2001] O.J. No. 2434 at paras. 66-67 (S.C.J.), aff’d., 2002 4770 (ON CA), [2002] O.J. No. 383 (C.A.)

[39] Rule 25.11 empowers the Court to strike out pleadings as follows:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

[40] “A pleading that demonstrates a complete absence of material facts will be declared to be frivolous or vexatious. Pleadings that are irrelevant, argumentative, or inserted for colour or that constitute bare allegations should be struck out as scandalous. The same applies to a document that contains only argument and includes unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation.”: Senechal v. Muskoka (District Municipality), [2003] O.J. No. 885 (S.C.J.) at paras. 51, 52.

[9] Courts have held that, absent exceptional circumstances, leave to amend pleadings should generally be granted: Thelwell v. Elaschuk, 2020 ONSC 340, at para. 87; Asghar v. Toronto Police Services Board, 2019 ONCA 479, at para. 9.

Analysis

[10] The following are the issues to be determined:

(a) Have the Defendants failed to bring their motions in a timely manner?

(b) Should the Plaintiff’s claim against FACS Niagara in negligence be struck as disclosing no reasonable cause of action?

(c) Should the Plaintiff’s claims in defamation be struck as improperly pleaded?

(d) Should the Plaintiff’s claims for intentional infliction of mental suffering be struck as improperly pleaded?

(e) Does section 37 of the Child, Youth and Family Services Act apply to preclude an action as against Mr. Wood?

(f) Should the pleadings be anonymized pursuant to s. 87(8) of the Child, Youth and Family Services Act to protect the identity of the Children?

(a) Have the Defendants failed to bring their motions in a timely manner?

[11] The Plaintiff submits that the Defendants have not brought their motions to strike in a timely manner and so the motions should be dismissed. She relies on the case Mackenzie v. Wood Gundy Inc., [1989] O.J. No. 746, 15 A.C.W.S. (3d) 272 (Ont. H.C.J.).

[12] Rule 21.02 of the Rules provides that a motion under rule 21.01 shall be made promptly and a failure to do so may be taken into account by the court in awarding costs.

[13] In response to the Plaintiff’s delay argument, FACS Niagara filed evidence showing that, in June 2019, shortly after the claim was served, its counsel had raised with counsel for the Plaintiff concerns about the sufficiency of the pleadings. Communications between counsel for the parties ensued and (then) counsel for the Plaintiff indicated that the claim may be amended. However, on or about February 18, 2020, the Plaintiff’s counsel wrote advising that the claim would not be amended and requesting that statements of defence be delivered. Discussions continued between all counsel. By further correspondence sent July 3, 2020, counsel for the Plaintiff confirmed that her client’s position was that the claim did not need to be amended.

[14] The Defendants rely on this chronology in support of their position that there was no delay in bringing the motions that warrants their dismissal. Counsel for Hamilton CAS and Mr. Wood also notes the COVID-19 pandemic began in March 2020 and that limitation periods were suspended by regulation for the period March 16, 2020 to September 14, 2020.

[15] Based on the record before me, I find that the Defendants raised their concerns about the purported pleading deficiencies in a timely manner and then tried to negotiate a resolution to avoid the need for a motion. Looking at the litigation as a whole and given the ongoing discussions between counsel for the parties, I am satisfied that there was no inordinate delay in the bringing of the motions to strike. I am also of the view that dealing with the issues raised on the motions to strike will enhance trial efficiency.

[16] The Plaintiff’s request that the motions be dismissed due to delay is therefore denied.

(b) Should the Plaintiff’s claim against FACS Niagara in negligence be struck as disclosing no reasonable cause of action?

[17] The Plaintiff’s allegations of negligence are made only as against FACS Niagara. They are set out in paragraph 39 of the statement of claim as follows:

39. FACS owed Ramsay a duty of care. By failing to follow its own policies, and by engaging in a course of conduct designed to punish Ramsay for attempting to protect her granddaughter’s best interests, FACS has breached the standard of care owed to Ramsay and caused significant damages.

[18] FACS Niagara argues that the allegations of negligence must be struck in light of the law being clear that a child protection agency does not owe a duty of care to third parties in exercising its child protection mandate: see Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, at paras. 41, 42, 44, 45, 46, 50 and 53; C.R. v. Her Majesty the Queen in Right of Ontario, 2019 ONSC 2734, at paras. 83-86, affirmed J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198, leave to appeal refused 2020 CarswellOnt 14445 (S.C.C.); H.A.G. v. Family and Children’s Services Niagara, 2017 ONCA 861, leave to appeal refused 2018 102724 (SCC). In Syl Apps, the Supreme Court of Canada held that this duty of care should be clearly defined on a categorical basis and not resolved on a case-by-case basis (at para. 20). Since no duty of care was owed to the Plaintiff by FACS Niagara, there is no reasonable cause of action in negligence. It also submits that the Plaintiff has effectively admitted the potential for conflict surrounding such a duty of care by her allegations concerning the failure of FACS Niagara to invoke the Policy and this would preclude any finding of a duty of care.

[19] The Plaintiff acknowledges the jurisprudence that holds there is no duty of care owed by a children’s aid society to a child’s family member. However, she nonetheless argues that the courts have not addressed whether a duty of care is owed by a society to a family member who is an employee with expertise in child protection services. She submits that, since this is a novel claim, it should not be dismissed at this preliminary stage and the court should hear the issue fully argued on the basis of an evidentiary record at trial.

[20] In order for a novel claim to survive a motion to strike, there must be a reasonable prospect that the claim will succeed at trial: Apotex Inc. v. Eli Lilly and Company, 2012 ONSC 3808, at para. 12.

[21] I have reviewed the caselaw provided by counsel and am satisfied that, in Ontario, the law is well settled that a children’s aid society and its employees do not owe a duty of care to parents or other adult family members in child protection investigations or proceedings. Based on this prior authority, I find that there is no duty of care owed by FACS Niagara to the Plaintiff in her capacity as a grandparent. Further, I am not persuaded that the Plaintiff’s claim in negligence, based on a duty of care being owed to her as a family member who is an employee with child protection expertise, has a reasonable prospect of success. The fact that a family member is an employee with child protection expertise does nothing to change the fact that a society’s primary duty of care must be owed to the child alone. If anything, the risk of a conflict of interest would become even more pronounced if such a duty of care was recognized since there would then be two potential bases for conflict – as a family member and as an employee. Such a conflict is the reason for the existence of the Policy and why the court ordered Hamilton CAS to become involved in AA’s file.

[22] Accordingly, as no duty of care is owed by FACS Niagara to the Plaintiff in any capacity as a family member of AA or BB, I find that there is no reasonable cause of action in negligence. The claim in negligence cannot succeed and must be struck without leave to amend.

(c) Should the Plaintiff’s claims in defamation be struck as improperly pleaded?

[23] The Defendants argue that no claim in defamation can be maintained because the Plaintiff has not properly pleaded the required elements of defamation. They contend that the allegations lack specificity, particulars and reference to publication, and, as a result they cannot know the case they have to meet. Hamilton CAS and Mr. Wood further argue that the Plaintiff’s response to their demand for particulars is obscure and non-responsive as the plain meanings and innuendos relied upon are not set out and the statements alleged to be defamatory are not supported by any facts or circumstances that render them capable of a defamatory meaning. Accordingly, the allegations in defamation should be struck.

[24] The Plaintiff submits that the statement of claim is clear in its language that all comments made referred to the Plaintiff, that the words were published, and that the defamatory statements could significantly injure her professional reputation and job prospects. She further argues that, as the party who wrote the letter sent to the College, Mr. Wood has full knowledge of its contents and, therefore, the defamatory information. She takes the position that the defamation portions of the statement of claim should not be struck as more factual information is required to determine the issue and statements of defence have not yet been served.

[25] When pleading a cause of action in defamation, a plaintiff must include the material facts setting out the alleged defamatory words, how and when those words were published and by whom. If the pleading entirely omits the alleged defamatory words, this usually results in the impugned paragraphs being struck or an order being made to amend so that the actual words written or spoken are identified: Jordan v. Vancouver (City), 2016 BCSC 167, at para. 32; Lysko v. Braley, 2006 11846 (ON CA), at para. 102.

[26] The reason for requiring specificity in pleading allegations of defamation was explained by the court in Richmond v. North American Life Assurance Corp., 1998 14654 (Ont. S.C.J.), at para. 12:

Such pleadings must be strictly construed and [the] allegations must be precise to enable the court to determine whether the matter complained of is defamatory and to enable the defendants to meet the exact allegations made against them.

[27] I find that the statement of claim does not contain the factual basis sufficient to support a cause of action in defamation. The Plaintiff does not plead the allegedly defamatory words with sufficient particularity to enable each of the Defendants to understand what the impugned words or statements are, who made them, when or how they were made, or whether they have the meaning as alleged. The lack of particulars in the statement of claim means that the Defendants cannot know the case they must meet and this adversely impacts their ability to raise the appropriate defences.

[28] Accordingly, I find that the Plaintiff’s claim in defamation is deficient and improperly pleaded. I order that paragraphs 43, 44, 50, 51 and 52 of the statement of claim be struck. I do not see any reason to do so without leave to amend, however.

[29] With respect to Hamilton CAS and Mr. Wood’s argument that the Plaintiff’s action in defamation is out of time since she did not deliver proper notice as required by s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12 and did not commence her action within the limitation period set out in s. 6 of that Act, I find that, based on the record before me, I do not have sufficient evidence to make a finding that there was non-compliance with these provisions. I also accept and adopt the holding made by the court in Miano v. Campos, 2019 ONSC 1816, at para. 13, that the date as of when a claim was discoverable is an issue that should be determined at trial or, in an appropriate case, on a motion for summary judgment, unless all relevant facts are undisputed. Accordingly, I decline to make a decision that the Plaintiff’s claim is barred by ss. 5(1) or 6 of the Libel and Slander Act.

[30] The Defendants further argue that absolute privilege and qualified privilege apply to the occasions when the impugned words or statements were written or uttered. Given that these are defences to be pleaded, I find they do not assist me on these motions in determining whether or not the Plaintiff’s pleadings relating to her claims in defamation are deficient.

(d) Should the Plaintiff’s claims for intentional infliction of mental suffering be struck as improperly pleaded?

[31] The parties agree that to establish the tort of intentional infliction of mental suffering, a plaintiff must prove:

(i) flagrant or outrageous conduct;

(ii) calculated to produce harm; and

(iii) resulting in a visible and provable illness: Thelwell v. Elaschuk, 2020 ONSC 340, at para. 66.

[32] A plaintiff must plead conduct that is extreme, flagrant, and outrageous. It is not enough to submit that the pleaded conduct is extreme, flagrant, and outrageous: High Parklane Consulting Inc. v. Royal Group Technologies Ltd., 2007 410 (ON SC), at para. 41. Further, a plaintiff must plead material facts to support that a defendant intended to cause the mental suffering. It is not sufficient for a plaintiff to allege that a defendant ought to have known that the harm would occur: Piresferreira v. Ayotte, 2010 ONCA 384, [2010] O.J. No. 2224, at para. 75, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 283; Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, at para. 44; Thelwell v. Elaschuk, at paras. 70-71. Finally, a plaintiff must specifically plead a harm that is either a recognized mental disorder or illness or material facts that would support such a diagnosis: Fein v. Fein, 2001 28141 (ON SC), at para. 75; McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830, at paras. 30-31.

[33] I am of the view that the statement of claim contains conclusory statements only about the Defendants’ “flagrant and outrageous conduct” and intention to harm and it fails to set out material facts upon which those conclusions can be reached. I do not find the link in the pleadings between the alleged harassing conduct and the Defendants’ intent to cause harm sufficient to meet the threshold to support a claim for intentional infliction of mental distress. With respect to the alleged harm, no material facts are pleaded in support of mental suffering in the form of psychiatric illness or injury. There are only vague, general statements that the Plaintiff is “unable to work” and “under a doctor’s care”. Since the Plaintiff has not pleaded the basic elements of this cause of action, I find that it is plain and obvious that she cannot succeed at trial and so the claim should be struck out.

[34] Accordingly, I order that paragraphs 40, 41, 42, 46, 47, 48 and 49 be struck from the statement of claim. As there is a suggestion in the pleadings that the Defendants’ conduct did cause the Plaintiff some illness or injury, I will grant her leave to amend her claim relating to this cause of action.

(e) Application of Section 37 of the Child, Youth and Family Services Act

[35] Section 37 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“the CYFSA” or “the Act”) provides:

37. No action shall be instituted against a member of the board of directors or an officer or employee of a society for any act done in good faith in the execution or intended execution of the person’s duty or for an alleged neglect or default in good faith in the execution of that duty.

[36] Hamilton CAS and Mr. Wood argue that s. 37 of the CYFSA applies to bar the action as against Mr. Wood. Mr. Wood was senior legal counsel employed by Hamilton CAS at the material time and so he is immune from personal liability for any alleged acts and/or omissions committed in the execution of his employment duties. As a result, they submit the claims against him should be struck.

[37] The Plaintiff argues that her claim should not be struck at this stage based on the application of s. 37. She cites the case B.(D.) v. Children’s Aid Society of Durham Region, 1996 1067 (ON CA), wherein the Court of Appeal upheld a decision where the trial judge found that a social worker lacked good faith in her dealings with the father and awarded damages for negligent handling of allegations, in support of her position.

[38] In order for s. 37 to apply, the employee of a society must have acted in good faith. Since these motions proceeded under rule 21, no evidence was led by any of the parties with respect to the issues of whether Mr. Wood was acting in good faith or bad faith or within or outside the scope of his employment. Accordingly, there is an insufficient evidentiary basis for me to determine whether Mr. Wood was acting in good faith and so I am not in a position to rule on the application of s. 37.

(f) Should the pleadings be anonymized to protect the identity of the Children?

[39] Section 87(8) of the CYFSA prohibits the publication of the identity of a child who is involved in a child protection hearing or proceeding. It reads:

87. (8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

[40] The Defendants argue that, in order to comply with the CYFSA, the statement of claim must be amended to remove the names of the Children and their parents as they were the subject of a child protection investigation under the Act. The Defendants ask that a redacted statement of claim be filed and the original statement of claim be sealed to protect the identities.

[41] The Plaintiff submits that s. 87(8) only applies to child protection hearings or proceedings under Part V and does not apply to civil cases stemming from or connected to a child protection case. She submits that if this section applied, she would be unduly restricted in being able to properly plead her case.

[42] Given the clear language of s. 87(2) of the CYFSA, I am of the view that s. 87(8) only applies to hearings under Part V of the Act and that it does not have general application to civil proceedings.

[43] In a civil proceeding, a court does have authority through a combination of the court’s inherent jurisdiction and s. 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to decide to initialize or seal court documents or otherwise protect the identities of individuals in appropriate cases, applying the applicable legal principles: see M.M. v. Lanark, Leeds and Grenville Children’s Aid Society, 2018 ONSC 5032, at paras. 7-11. However, that type of analysis is not possible based on the materials before me. Accordingly, I decline to order amendment of the statement of claim to remove the names and identifying information of the Children. This is without prejudice to the ability of the Defendants to seek such an order again in the future.

Disposition

[44] For the foregoing reasons, the paragraphs concerning the claims of negligence, defamation and intentional infliction of mental suffering found in the statement of claim are struck out.

[45] Leave is granted to the Plaintiff to amend the statement of claim as it relates to her claims in defamation and intentional infliction of mental suffering. The amended pleadings are to be served and filed within thirty days of the release of these reasons.

Costs

[46] The parties spoke to the issue of costs at the hearing.

[47] The Defendants achieved greater success on the motions than the Plaintiff. In the result, I am of the view that it is fair and reasonable in the circumstances to order costs of these motions to be paid by the Plaintiff to the Defendants fixed in the amounts of $1,000.00 to FACS Niagara and $500.00 to Hamilton CAS and Mr. Wood, for a total of $1,500.00 all inclusive, payable by the Plaintiff within thirty days of the release of these reasons.

B. MacNeil J.

MacNEIL J.

Released: June 17, 2022