Court File and Parties
COURT FILE NO.: CV-16-2140
DATE: 2022/10/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
C.F., T.F., and S.F. Plaintiffs
– and –
FAMILY AND CHILDREN’S SERVICES OF THE WATERLOO REGION, ALISON SCOTT, AND LYNNE MARIE FYFE Defendants
COUNSEL: Raymond G. Colautti, for the Plaintiffs James C. Dakin, for the Defendants
HEARD: July 4, 2022
BEFORE: TRANQUILLI J.
Reasons for Decision
Introduction
[1] The defendants move to strike portions of the plaintiffs’ statement of claim on the grounds that it fails to disclose a reasonable cause of action.
[2] This action concerns the response of Family and Child Services of the Waterloo Region (“FCS”) to allegations that the plaintiff C.F. sexually abused a foster child placed in his care. C.F. and his daughters, T.F. and S.F., claim the defendants’ failures in carrying out the investigation caused their family’s disintegration, with emotional and economic fallout. Their statement of claim seeks combined damages of approximately $4.35 million. The plaintiffs sue FCS and its employees in negligence, breach of fiduciary duty, breach of statutory duty and defamation.
[3] The issues require the court to consider whether the allegations in the statement of claim give rise to a recognized cause of action and whether it pleads the necessary legal elements of a cause of action. If the claim is legally insufficient, the court then must consider whether leave should be granted to amend the claim.
The Motion
[4] The defendants bring this motion to strike pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[5] The defendants seek an order striking all three plaintiffs’ claims against the FCS employees without leave to amend. They submit the defendant employees benefit from the statutory immunity provided by s. 15(6) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”).
[6] The defendants also seek an order striking all of C.F.’s claims without leave to amend. FCS acknowledges it owes a duty of care to the plaintiff children, T.F. and S.F. However, it submits the agency did not owe the plaintiff foster parent the legal duties as alleged. The court has conclusively recognized that a child protection agency only owes a duty to the children and not to third parties such as foster parents. They submit C.F. has otherwise failed to plead the essential elements necessary to sustain any other viable cause of action.
[7] The plaintiffs acknowledge pleading deficiencies in their statement of claim. However, they contend the shortfall is overcome by a demand for particulars under the Rules. Further, C.F. submits his contractual relationship with FCS establishes a relationship of proximity that imposes a duty of care on the child protection agency. C.F. argues that his contract with FCS created a fiduciary relationship wherein the agency was required to deal with him in utmost good faith. The agency breached its duty and breached their contract in its response to the foster child’s sex abuse allegations. The plaintiffs have argued that the circumstances of this case must not leave C.F. and other foster parents without a remedy against a child welfare agency’s “botched” sex abuse investigation, which leaves foster parents to cope with the ensuing financial and personal fallout.
[8] The parties agree that the CFSA applies in these circumstances. The CFSA has since been repealed and replaced by the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1.
Issues
[9] This motion requires the court to answer the following questions:
- Has C.F. pled a tenable cause of action against the defendants?
- Does the CFSA immunity provision bar recovery by the plaintiffs?
- Should the court grant leave to amend?
Affidavit Evidence
[10] A preliminary issue arose with the plaintiff’s proffering of evidence in response to the motion to strike. C.F.’s affidavit attested to and appended the Foster Care Service Agreements between he and the defendants in 2006, 2009, 2012 and 2013. This evidence was ostensibly offered in support of C.F.’s allegations that FCS breached their contract with C.F. which I will address later in these reasons.
[11] I accept the defendants’ reasons for opposing the admission of this evidence in response to their motion. Rule 21.01(2)(b) is determinative. No evidence is admissible on a motion to strike out a pleading on the grounds that it discloses no reasonable cause of action. Neither the existence of a contract nor the terms of that agreement, nor a breach of contract by the defendants is pled by C.F. The Foster Care Service Agreements cannot be incorporated into the statement of claim by reference: McCreight v. Canada, 2013 ONCA 483 at para. 32.
Analysis
[12] A court will only strike a claim under 21.01(1)(b) if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action. Even assuming the facts pleaded are true, the question is whether the claim remains hopeless: McCreight at para. 39; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 at para. 17.
[13] The rule is intended to weed out claims that have no prospect of success and allows the parties and courts to then focus on claims that have a reasonable prospect of success. It is nevertheless a tool to be used with care. It is not determinative if the law has not yet recognized a claim. The motion analysis proceeds on the basis that the facts pleaded are true unless they are manifestly incapable of being proven. It is incumbent upon the plaintiff to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion but must plead them regardless. The facts as pleaded form the basis upon which the possibility of the claim’s success must be evaluated. If they are not pleaded, the exercise cannot be properly conducted: Imperial Tobacco, at paras. 21-22.
[14] The court must employ a generous analysis in its interpretation of the reasonable prospect of the claim’s success and err on the side of caution. It must ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed: Imperial Tobacco, at para. 21.
[15] While the court must accept as true the material facts as pleaded, this obligation does not extend to bald conclusory statements of fact, unsupported by material facts: Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683 at para. 30. 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. 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: Deep v. Ontario, 2004 CanLII 14527 (Ont. S.C.) at paras. 32-34, aff’d 2005 CarswellOnt 1265 (Ont. C.A.).
The Amended Statement of Claim
[16] The court’s understanding of the material facts necessary to deal with this motion is hampered by the limited, vague, and confusing particulars in the amended statement of claim. Although detailed in its conclusory assertions of the defendants’ misconduct, the claim is largely devoid of particulars or material facts. These pleading deficiencies make it challenging to conduct a proper rule 21(1)(b) analysis and to give the plaintiffs the benefit of a generous reading of the claim.
[17] The statement of claim was issued in 2016 and amended in December 2021. It appears the amendments were made to reflect the removal of the plaintiff mother from the action, as well as the plaintiff daughters, who had attained the age of majority.
[18] No causes of action are mentioned in the prayer for relief. The plaintiffs seek damages for “breaches of statutory duty, and/or breach of duty of care, and/or breach of fiduciary duty owed to the plaintiffs.” The claim later states they also rely upon breaches of both common law, statutory duty, and negligence. Finally, they claim the defendants’ accusation of sexual abuse and failure to protect the children are defamatory of C.F.
[19] The claim is largely devoid of pleading the particulars or material facts necessary to ground a cause of action. There is no clear explanation whatsoever of the relationship between the plaintiffs and defendants, let alone the existence of a contractual relationship as urged by the plaintiffs in argument. On a most generous reading, it would seem that at some point in time, there was a child in the temporary care of FCS, and that C.F. and M.F. were foster parents. FCS placed the child in the care of C.F., along with the former plaintiff M.F., at their home, along with the plaintiff children. I infer that the foster child later alleged they were sexually assaulted by C.F. I would surmise the claim alleges the child’s disclosure caused FCS to begin an investigation which brought many consequences for the plaintiff family, including apprehension of the plaintiff daughters from their parents’ care. The disposition of the investigation of the allegations and any other consequences for the plaintiff C.F. are not mentioned.
[20] From what I can gather, the most the defendants’ conduct is particularized is that the defendants:
a. made false accusations alleging sexual abuse by C.F.; b. that it advanced an investigation under false premises and pretences; c. abused its powers; d. failed to properly investigate; e. failed to train and supervise its employees; and f. acted in bad faith.
As the claim relates to the individual FCS defendants, the plaintiffs allege those defendants acted in a biased, unprofessional, highhanded manner, prepared inaccurate and misleading notes, acted without any or proper evidence and beyond the scope of their authority.
1. Has C.F. pled a tenable cause of action against the defendants?
[21] There is ample appellate authority that guides the necessary analysis on this question. There are profound pleading deficiencies that are readily apparent on the face of the claim. However, the pleading issues highlight more serious questions of law that go to the heart of C.F.’s claims.
[22] In my view, none of the claims advanced by C.F. disclose a reasonable cause of action and therefore must be struck. Each of the causes of action asserted by C.F. would put the child protection agency directly into conflict with its paramount duty to act in the best interests of the child. It is well-settled law that a child protection agency does not owe a duty of care to third parties in exercising its child protection mandate under the CFSA. The following cases illustrate this point.
[23] In Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83 (“Syl Apps”), the Supreme Court of Canada considered a rule 21 motion by a child protection service provider to strike the claims brought by a child who alleged she had been sexually abused by her family. She was apprehended by a child protection agency and placed in a secure treatment centre. She was ultimately made a permanent Crown ward. Police investigated her allegations, but no charges were ultimately laid. Her family brought a claim in negligence against the treatment centre and her social worker, alleging they had interfered with the family relationship. The Supreme Court of Canada unanimously held that neither the treatment centre nor the social worker could owe a duty of care to the family. To recognize such a legal duty to the family of a child in their care would pose a real risk that a secure treatment centre and its employees would have to compromise their overriding duty to the child. The court held that the duty of care pertaining to the relationship between children in need of protection and those who are charged with their care should be clearly defined on a categorical basis. It should not be left in a fluid state to be resolved on a case-by-case basis. The Court held it was therefore plain and obvious that the statement of claim failed to disclose a reasonable cause of action such that it should be struck: Syl Apps, at paras. 20-21. In particular, the Court noted the statutory mandate of a child protection agency is to treat the child’s interests as paramount, such that they must be free to execute this mandate to the fullest extent possible: Syl Apps, at para. 64.
[24] C.F. acknowledges the authority of Syl Apps but submits that, as a foster parent, he stands in a different position or relationship of closer proximity with FCS than the plaintiffs in Syl Apps. C.F. submits that FCS owed him statutory and contractual obligations in his role as a foster parent. Accordingly, C.F. argues that this gives rise to a duty of care as well as fiduciary, contractual and statutory duties owed by the agency towards the foster parent.
[25] Each of these arguments can be disposed of as being contrary to Syl Apps and the weight of authority that has followed this case.
Do child protection agencies owe a duty of care to foster parents?
[26] I am not persuaded that a foster parent stands in any different position than other third parties, such as parents or service providers. Notwithstanding any contract with the foster parent (which has not been pled in the statement of claim) the Supreme Court of Canada’s guidance in Syl Apps makes it clear that the only duty of care that FCS owes, is towards the child, which is something clearly defined on a categorical basis.
[27] The Court of Appeal for Ontario has also recently addressed this question, leaving no doubt that a child protection agency does not owe a duty of care to third parties when the agency is acting pursuant to its statutory mandate, which requires them to act in the best interests of a child.
[28] J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198, concerned several lawsuits brought by parents and families of children who were apprehended by various child protection agencies in this province based upon hair follicle testing carried out by the Motherisk Lab to screen the parent for drug and alcohol abuse. The testing was later found to be seriously flawed. The plaintiffs sued the child protection agencies and the province in negligence, negligent investigation, negligent or intentional infliction of mental distress, bad faith, breach of fiduciary duty and misfeasance in public office. The Court of Appeal upheld the motion judge’s decision to strike the claims against the child protection agencies and the province without leave to amend. The plaintiffs argued that Syl Apps was confined to its facts and pertained only to the duty of care owed by a secure treatment centre and its employees. The Court of Appeal dismissed this argument. The court expressly noted that the underlying guidance in Syl Apps is that where entities exist to protect and provide for a child’s best interests, to avoid conflicting duties, they must only owe a duty of care to the children they serve. That duty remains owed to children throughout all stages of a child protection matter: J.B., at paras. 39, 41.
[29] To accordingly find that a foster parent is owed a duty of care by a child protection agency would run counter to the reasoning of these binding authorities.
[30] This result is also consistent with earlier decisions of this court. In R. v. FCS, 2015 ONSC 3345, the plaintiff foster parents claimed the child protection agency owed them a duty of care in its investigation of false sexual abuse allegations by a foster child. They submitted that foster parents were in a fundamentally different situation than biological parents as they worked with the child protection agencies to ensure the best interests of the child are met. If conflict ensues within the foster family, the agency is obliged to weigh the competing interests of the foster family and child in coming to any decision. The court rejected this position and struck the claims of the foster parents. The court found there was very little reason to distinguish between biological and foster parents in the context of a purported duty of care owed by child protection agencies. Similarly, in I. v. DCAS, 2015 ONSC 1721, the court also struck the claims of two foster parents on the grounds they did not disclose a reasonable cause of action. The court found that the weight of Superior Court authority in this province has settled the question. A child protection agency does not owe a duty of care to third parties in exercising its child protection mandate under the CFSA: DCAS, at para. 22.
[31] Thus, to the extent that the service agreement between C.F. and FCS is evidence of proximity and any duties owing by FCS to the plaintiff, in my view those contractual obligations cannot be interpreted in a way to subordinate the agency’s overarching duty to the best interests of a child.
[32] C.F.’s claims in negligence and/or a breach of duty of care are therefore struck.
Can a child protection agency owe a fiduciary duty to a foster parent?
[33] C.F. argues that FCS owed him a fiduciary duty as a foster parent in the agency’s exercise of its statutory powers, such that he must have an equitable remedy to redress the harm caused through its uneven treatment of the competing interests of the foster parent and the children.
[34] The claim fails to plead particulars that establish a fiduciary relationship and a fiduciary duty. Assuming – without deciding – that the foster parent is in a fiduciary relationship with FCS, such that the agency owes duties of loyalty, good faith, and avoidances of any conflicts of duty to a foster parent, that claim has no prospect of success given the reasoning in Syl Apps. Such an approach would again place a child protection agency into a situation where it has to weigh competing interests such that the best interests of the child are not given paramountcy. The Court of Appeal also rejected this argument in J.B., noting that the same reasoning in Syl Apps regarding duty of care and the potential for a conflict of interest also bars a claim of a breach of fiduciary duty: J.B., at para. 71.
[35] C.F.’s claims based upon a breach of fiduciary duty are therefore struck.
Can there be a statutory duty to a foster parent?
[36] The claim alleges the defendants breached a statutory duty. The precise statutory duty is not identified, neither is the manner of the alleged breach of that duty. It is unclear whether the unarticulated statutory duty is pled to ground proximity for a duty of care, or whether C.F. contends that a breach of a statutory duty leads to civil liability. The law to date has not recognized an action for negligent breach of statutory duty. It is well established that mere breach of a statutory duty does not constitute negligence: Holland v. Saskatchewan, 2008 SCC 42, [2008] 2 S.C.R. 551 at paras. 7-9; see also R. v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC), [1983] 1 S.C.R. 205. The mere allegation of a breach of a statute is insufficient.
[37] In argument, C.F. submits the CFSA, and its regulations establish the statutory duty towards foster parents. He points to the numerous statutory and regulatory duties a child protection agency carries when placing a child in foster care. This includes consulting with foster parents about a placement, assigning a worker to supervise the foster parents, conducting an annual review to ensure ongoing suitability of a foster parent and to complete an assessment of the foster child and to review a foster plan of care with the foster parent(s).
[38] There is no dispute that a child protection agency is statutorily mandated to carry out a myriad of duties and responsibilities as it relates to placing a child in foster care and working with the foster family. However, the court was not taken to any statutory provision that expressly establishes a duty by the agency towards its foster parents.
[39] The plaintiff’s argument here is similar to the plaintiffs’ unsuccessful submissions in Syl Apps. In Syl Apps, the plaintiffs noted the CFSA placed obligations on service providers to ensure children and their parents are heard and represented and that the statute also recognized the importance of the family and of the integrity of the family unit. They submitted this was evidence of a relationship of proximity such that a duty of care exists. The Supreme Court of Canada rejected this submission, observing that although the CFSA makes references to the family, much of it is in the nature of procedural rights only. The Court found that nothing in those provisions detracts from the Act’s overall and determinative emphasis on the protection and promotion of a child’s best interests, even over those of the family: Syl Apps at paras. 37, 46.
[40] As such, to the extent there may be a statutory obligation towards foster parents in the CFSA, it cannot be interpreted to take paramountcy over the clear statutory mandate for the protection and promotion of the child’s best interests.
[41] C.F.’s claims based upon a breach of statutory duty are therefore struck.
Is there a claim for defamation?
[42] C.F. pleads that the individual defendants’ accusations that he sexually abused foster children are false, defamatory, and libelous. That is the extent of the pleading in support of a claim in defamation.
[43] In an action for defamation, the general rule is that the defamatory words about which the plaintiff complains must be set out fully and precisely in the statement of claim. The particular words that are claimed to be defamatory must be included in the claim. They should be set forth verbatim: K.A.P. v. Children's Aid Society of Toronto, 2007 CanLII 44821 (Ont. S.C.) at para. 12. Further, the essential element in defamation is proof of publication to a third party other than the plaintiff. In addition, the plaintiff must show: whether the statements were made orally or in writing; who the recipient/audience of the statement was; that the statement identifies the plaintiff; and the time and place that the statements were made: Leschyna v. CIBC World Markets Inc., 2005 CanLII 49205 (Ont. S.C.) at paras. 17-20.
[44] The occasion and way the alleged defamatory statements were made are crucial to the proper pleading of defamation. Absolute and qualified privilege may apply to extinguish the claim. Statements made in judicial proceedings or quasi-judicial proceedings may also be protected by qualified privilege. The defendants do not have the benefit of particulars as to the context of the alleged defamatory statements.
[45] The claim in defamation is entirely lacking in meeting these pleading requirements and shall be struck.
2. Does the CFSA immunity provision bar recovery by the plaintiffs?
[46] The plaintiffs allege the FCS employees are personally liable as a result of breaches of statutory duty, failures, acts, omissions and/or negligence. The particular allegations include that the employees were biased, highhanded, unprofessional, and unfair, that they prepared inaccurate and misleading notes, made false allegations of sexual abuse by C.F. and that they acted without any or proper evidence, beyond the scope of their authority, and in such a manner that exceeded their training and qualifications. In the pleading of FCS’s liability, “bad faith” is included in the list of the agencies alleged failings.
[47] Section 15(6) of the CFSA provides employees and agents of a child protection agency with immunity from civil action on the following terms:
No action shall be instituted against an officer or employee of a society for an act done in good faith in the execution or intended execution of the person’s duty or for an alleged neglect or default in the execution in good faith of the person’s duty.
[48] In C.R. v. Her Majesty the Queen in Right of Ontario, 2019 ONSC 2734, the motion judge dealt with a similar issue concerning the availability of s. 15(6). This was the Motherisk decision of first instance that the Court of Appeal upheld in J.B. The motion judge correctly acknowledged that s. 15(6) does not provide statutory immunity to all child protection workers regardless of the nature of their conduct. However, on a rule 21 motion the court must determine whether there is a reasonable cause of action, upon which a factual matrix supports the claim. The court struck the claims against the individual employees as the claim did no more than assert “bad faith”: C.R., at paras. 101-104.
[49] I will allow that in comparison with C.R., it appears that these plaintiffs may have asserted more than “bad faith”. However, their claims nevertheless lack a factual matrix and fail to plead particulars or materials facts in support of claims that go beyond mere negligence. The claims of bad faith, preparing inaccurate notes and making false allegations are no more than bald conclusory assertions rather than factual contentions. Particulars of bad faith that may survive the statutory immunity offered by s. 15(6) must be pled with particularity: D.S.B. v. Kenora Rainy River Child and Family Services, 2014 ONSC 5621 at paras. 36-43.
[50] The plaintiffs’ claims against the individual FCS defendants are therefore struck.
3. Should the court grant leave to amend?
[51] There is no doubt that all of C.F.’s claims against the defendants in this amended statement of claim must be struck without leave to amend. It is plain and obvious that C.F. cannot maintain a cause of action against FCS based on a breach of duty or breach of a fiduciary duty. Pleading amendments to those causes of action will still not establish legally recognized duties that can coexist and compete with the defendants’ overarching duty to act in the best interests of a child. I find the result would be no different were the court to consider whether C.F. could ground a cause of action based upon breach of contract or a contractual duty (which is not particularized or raised in the statement of claim). Again, those contractual duties cannot be interpreted in a manner to subordinate FCS’s paramount duty to act in the best interests of a child in a child welfare investigation.
[52] I am not persuaded that it would be appropriate to grant leave to C.F. to amend his claim in defamation. What has been pleaded simply fails to make out a claim in defamation. This is akin to the situation before the court in B.K.2 v. Chatham-Kent Children’s Services, 2016 ONSC 1921, which considered a motion to strike claims against a physician and the child protection agency regarding a child abuse investigation. In striking the defamation claim without leave to amend, the court noted this was not a situation where there was a failed effort to plead defamation where it may be in the interests of justice to grant leave to amend. In that case, as in these circumstances, the cause of action is simply not there: B.K.2, at para. 26.
[53] The residual question with which I have greater difficulty is whether it is just in the circumstances to exercise my discretion to grant C.F. leave to amend his claim to assert a different and reasonable cause of action, and whether the claim is capable of amendment to this standard. The parties did not offer the court any precedent on this point.
[54] FCS acknowledged in argument that the tort of misfeasance in public office remains as a possible remedy for third parties such as C.F., who claim they have suffered damages as a result of misconduct by the agency. However, they asserted it would be futile to grant leave to amend to allow that cause of action as it would be barred by the limitation period. I decline to consider that position on this record. It was not formally put into issue on this motion, and it would be manifestly unfair to the plaintiffs to make such a determination on this record.
[55] I will allow that a generous reading of the statement of claim shows that the plaintiffs, including C.F., allege that FCS and its agents engaged in a pattern of acts and omissions that if properly pled, could ground a cause of action in abuse of public office or abuse of statutory power: Conway v. The Law Society of Upper Canada, 2016 ONCA 72 at para. 20. They assert that FCS and its agents made false accusations, knew they were false accusations, acted in bad faith and in a highhanded manner, and beyond the scope of their statutory authority.
[56] The tort of abuse of public office or abuse of statutory power is the deliberate and dishonest wrongful abuse of powers given to a public officer, coupled with the knowledge that the misconduct is likely to injure the plaintiff. Bad faith or dishonesty is an essential ingredient of the tort. An absence of good faith, or “bad faith” involving malice or intent, is sufficient to ground a properly pleaded cause of action: Conway, at paras. 19-25.
[57] I have some misgivings due to the sparsity and vague nature of the pleadings, but I am required to accept the plaintiffs’ factual allegations as true. I am persuaded it is possible C.F. can plead a tenable cause of action, and that the plaintiffs should have a further opportunity in which to do so. If pleading deficiencies remain on a fresh as amended statement of claim, different considerations may apply.
[58] Therefore, the plaintiffs’ claims against the individual FCS defendants and all of C.F.’s claims against FCS are struck, with leave granted to serve and file a fresh as amended statement of claim to plead a tenable cause of action with proper particulars based upon the tort of misfeasance in public office arising out of the defendants’ alleged bad faith conduct. Leave is granted to all three plaintiffs to amend their claims to advance such a claim given the plaintiffs’ shared circumstances in respect of the defendants’ alleged misconduct. In my view it would be internally inconsistent if the court were to allow C.F. to amend his claim but to bar T.F. and S.F. If the plaintiffs opt to deliver a fresh as amended statement of claim that properly makes out the tort of misfeasance in public office, this would also potentially resurrect the question of whether the individual defendants have the benefit of s. 15(6).
[59] The fresh as amended statement of claim is subject to any applicable defences, including the application of any limitation periods, a request for particulars and any further motions to strike the fresh as amended claim, if necessary.
[60] The defendants shall serve and file an amended statement of defence, a request for particulars or a notice of motion to strike the fresh as amended statement of claim within 45 days of receipt of the fresh as amended statement of claim.
[61] The court acknowledges that the parties exchanged and filed cost outlines after the hearing of this motion. Given the divided success on this motion, the court encourages the parties to agree on the disposition of costs. If the parties cannot agree, the defendants shall deliver their cost submissions by October 28, 2022, and the plaintiffs shall deliver their cost submissions by November 10, 2022. As the court already has the cost outlines, submissions are limited to no more than two pages each. There is no right of reply without leave.
Justice K. Tranquilli
Released: October 17, 2022