COURT FILE NO.: CV-23-74
DATE: 2024 04 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN
SP, JD, LD (by their litigation guardian JD), KD (by their litigation guardian JD), CD (by their litigation guardian JD), SD (by their litigation guardian JD), and GD (by their litigation guardian JD)
Self-Represented[^1]
- and -
AMY HOLLISTER, LINDSAY WILSON,
TARA KAAKE, REBECCA RAYNSFORD, KIMBERLY MERCHANT, JANE DOES, JOHN DOES, and BRUE GREY CHILD AND FAMILY SERVICES
Robert Smith, for the Defendants
HEARD: March 22, 2024, in person
Restriction on publication: No person shall publish or make public information that has the effect of identifying a child who is the subject of this proceeding, or the child’s parent or a member of the child’s family.
ENDORSEMENT
JUSTICE RANJAN K. AGARWAL
I. INTRODUCTION
[1]. The plaintiffs SP and JD allege that the defendant Bruce Grey Child and Family Services and its employees, the defendants Amy Hollister, Lindsay Wilson, Tara Kaake, Rebecca Raynsford, and Kimberly Merchant, committed various legal wrongs against them and their children, the plaintiffs LD, KD, CD, SD, and GD. The allegations arise from a child protection investigation between September 2021 and November 2022.
[2]. The defendants move to strike most of SP’s and JD’s claims, without leave to amend, on the grounds that they disclose no reasonable cause of action. They also ask the court to seal the court file in this proceeding.
[3]. For the reasons discussed below, I endorse an order:
(a) striking out SP’s and JD’s claims for intrusion upon seclusion, negligence (including negligent investigation and negligent supervision), intentional infliction of mental suffering or nervous shock, and damages under section 24(1) of the Canadian Charter of Rights and Freedoms, as disclosing no reasonable cause of action;
(b) that the plaintiffs are granted leave to amend the statement of claim in accordance with this endorsement;
(c) that the plaintiffs shall file and serve the amended statement of claim on or before July 2, 2024, and the defendants shall file and serve an amended statement of defence, if any, on or before August 2, 2024;
(d) that JD, as the minor plaintiffs’ litigation guardian, shall serve and file a notice of appointment of lawyer on or before July 2, 2024;
(e) that any document filed in this proceeding be treated as confidential, sealed, and not form part of the public record; and
(f) that SP and JD pay to the defendants within 30 days the costs of this motion on a partial indemnity basis, inclusive of disbursements and taxes, fixed in the amount of $2500.
II. BACKGROUND
[4]. I’ve taken the background from the factual allegations in the plaintiffs’ statement of claim. For a motion to strike, these allegations are accepted as true. See Hunt v Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 SCR 959 at 979.
[5]. SP and JD are common law spouses. They have several children, including the minor plaintiffs.
[6]. Bruce Grey CFS is a children’s aid society that carries out its mandate under the Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sched 1, in Grey and Bruce Counties. The other defendants are all employees of Bruce Grey CFS.
[7]. In September 2021, OPP officers arrested SP for trespassing. She was acquitted in August 2023.
[8]. In October 2021, Hollister interviewed LD, KD, and CD at their school. Hollister asked LD, among other things, whether SP or JD yelled at her, whether SP or JD hit each other, and whether JD was a drunk. In reply to LD’s answers, Hollister used an angry tone and told LD she didn’t believe her. LD was emotional and tearful after the interview.
[9]. Hollister asked KD and CD similar questions. She also inspected KD’s lunch bag. When KD or CD said they didn’t know the answers to Hollister’s questions, Hollister replied in an angry tone.
[10]. In December 2021, SP gave birth. The next day, Hollister harassed SP at the hospital. In August 2022, Hollister abducted that child (who’s not a party to this action).
III. PLEADINGS AND PROCEDURE
[11]. On October 5, 2023, SP and JD sued the defendants for intrusion upon seclusion, defamation, negligence, negligent investigation, negligent supervision, intentional infliction of nervous shock, intentional infliction of mental suffering, and violations of their Charter rights under sections 7, 8 and 12.[^2] SP and JD each claim $100,000 in general damages, $25,000 in punitive or exemplary damages, $25,000 in aggravated damages, and $50,000 in damages under the Family Law Act, RSO 1990, c F.3. They also sue for unspecified special damages and Charter damages.
[12]. The statement of claim was filed on November 3, 2023. The action was started under Rule 76 of the Rules of Civil Procedure. The defendants delivered a statement of defence and crossclaim on February 15, 2024.
[13]. SP and JD are self-represented. Under rules 1.03 and 7.02(1) of the Rules of Civil Procedure, any person who isn’t under disability may act, without being appointed by the court, as litigation guardian for a plaintiff who is a minor. JD is the minor plaintiffs’ litigation guardian. Rule 7.05(3) requires that a private litigation guardian be represented by a lawyer and shall instruct the lawyer in the conduct of the proceeding. No lawyer has appeared for JD on behalf of the minor plaintiffs. In effect, the minor plaintiffs are self-represented litigants, which isn’t allowed by the rules.
[14]. On March 12, 2024, the defendants moved to strike SP’s and JD’s claims for intrusion upon seclusion, negligence, negligent investigation, negligent supervision, intentional infliction of mental suffering, intentional infliction of nervous shock, and Charter damages as disclosing no reasonable cause of action. See Rules of Civil Procedure, r 21.01(1)(b).
[15]. The bar for striking a pleading is very high. The question is whether the action has no reasonable prospect of success or whether it’s plain and obvious that the action can’t succeed. This high standard applies to determinations of fact, law, and mixed fact and law. The facts pleaded are treated as true unless they’re “manifestly incapable” of being proven. The pleadings should be read generously, accommodating any drafting deficiencies because cases should be determined on their merits. See PMC York Properties Inc. v Siudak, 2022 ONCA 635, 473 DLR (4th) 136, at paras 30-31.
[16]. When a reasonable prospect of success exists, the matter should be allowed to proceed to trial. The “correct posture” for the court to adopt is to consider whether the pleadings, as they stand or may reasonably be amended, disclose a question that isn’t “doomed to fail”. See Atlantic Lottery Corp. Inc. v Babstock, 2020 SCC 19, [2020] SCR 420, at para 90.
[17]. The “motivating rationale behind this high standard” reflects the liberal construction of rules and pleadings to “secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” See PMC York Properties, at para 33.
[18]. Pleadings are critical: they frame the proceedings and the case that must be met. Motions to strike can serve a useful purpose at early stages of a proceeding to “weed out” clearly untenable causes of action that have no chance of success. But when parties are nitpicking over particulars, unwise use of motions to strike inevitably lead to delay. See PMC York Properties, at para 34.
IV. ANALYSIS
A. Intrusion Upon Seclusion
[19]. The elements of a claim for intrusion upon seclusion are:
(a) the defendant without lawful justification intrudes physically or otherwise into the seclusion of the plaintiff in their or other private affairs or concerns;
(b) the defendant’s intrusion is intentional or reckless; and
(c) the invasion would be highly offensive, causing distress, humiliation, or anguish to a reasonable person.
See Jones v Tsige, 2012 ONCA 32, 108 OR (3d) 241, at para 71.
[20]. SP and JD allege that Hollister intruded upon KD’s privacy by instructing KD to open her lunch bag, and “physically touch[ing] and closely inspect[ing]” its contents.
[21]. In Jones, at para 72, the Court of Appeal limited this tort to “deliberate and significant invasions of personal privacy”, such as “financial or health records, sexual practises and orientation, employment, diary or private correspondence”. The court has rejected claims involving personal (but not private) information, such as names, genders, and addresses. See Broutzas v Rouge Valley Health System, 2023 ONSC 540 (Div Ct); Del Giudice v Thompson, 2024 ONCA 70.
[22]. SP and JD haven’t pleaded that KD’s lunch bag contained any personal (never mind private) information. For that reason alone, the claim must be struck out.
[23]. It’s also unclear to me whether SP or JD can make a claim for the alleged invasion of KD’s lunch bag. On one hand, in many cases, parents pack their children’s lunch bag, and the contents (e.g., the containers, food, and money) may belong to the parent. On the other hand, children may carry all sorts of things in their lunch bags, including toys and school supplies, which might belong to them. And the parent or child may lose a reasonable expectation of privacy in the lunch bag or its contents once it leaves home or is stored at school because it’s been “knowingly” exposed to the public. See R v Tessling, 2004 SCC 67, [2004] 3 SCR 432, at para 40.
[24]. This case shows why plaintiffs need to plead the particulars of the private information that was allegedly invaded—a sandwich in a lunch bag left in a hallway cubby is unlikely to be private or even personal but, perhaps, a note from a parent to the child in a sealed envelope in the lunch bag, secured in the child’s locker, may be more so.
[25]. As a result, I endorse an order striking out SP’s and JD’s claims for intrusion upon seclusion in paragraphs 5, 6, and 55 of the statement of claim as disclosing no reasonable cause of action.
B. Negligence, Negligent Investigation, Negligent Supervision
[26]. To begin, the defendants move to strike SP’s and JD’s negligence claim on the grounds that Bruce Grey CFS and its employees don’t owe a duty of care to SP or JD as parents. But in paragraphs 62 to 67 of the statement of claim, the plaintiffs plead that the defendants breached their duty of care to LD, KD, and CD, not SP or JD.
[27]. That said, in paragraphs 68 to 70, all of the plaintiffs, including SP and JD, plead the torts of negligent investigation and negligent supervision (the paragraph containing the claim for negligent supervision isn’t numbered—it follows paragraph 70). In my view, these aren’t stand-alone torts. Instead, they are different ways of describing the duty of care that a defendant may owe to a plaintiff.
[28]. To advance a successful claim in negligence a plaintiff must show that:
(a) the defendant owed them a duty of care;
(b) the defendant’s behaviour breached the standard of care;
(c) the plaintiff sustained damage; and
(d) the damage was caused, in fact and in law, by the defendant's breach.
See Mustapha v Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 SCR 114, at para 3.
[29]. In Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 SCR 129, at para 19, the Supreme Court of Canada held that the law recognizes a duty of care of “an investigating police officer to a suspect in the course of investigation” (negligent investigation). In Odhavji Estate v Woodhouse, 2003 SCC 69, [2003] 3 SCR 263, at para 56, the Supreme Court of Canada held that a claim for a negligence against a police chief may be based on the police chief’s failure “to ensure that the members of the force carry out their duties in accordance with” the statutory regime (negligent supervision).
[30]. In DT v Highland Shores Children’s Aid, 2016 ONSC 1432, Justice Quigley dismissed a motion to strike by a children’s aid society. The plaintiff claimed that the defendants negligently investigated child protection concerns involving the plaintiff’s two daughters. The motion judge held that the claim should proceed to trial. I haven’t been provided any caselaw applying a claim for negligent supervision to a children’s aid society.
[31]. But since DT, the Court of Appeal has ended any debate that a children’s aid society owes a duty of care to a parent either during the investigation or proceeding stage. See JB v Ontario (Child and Youth Services), 2020 ONCA 198, 445 DLR (4th) 642, at para 42; HAG v Family and Children’s Services Niagara, 2017 ONCA 861, at paras 2-3, leave to appeal ref’d, [2018] SCCA no 181. There can be no duty of care to the parents because of the “clear conflict” that would arise when considering the children’s aid society’s duties to the children. See JB, at para 42. The CYFSA requires a children’s aid society to “investigate allegations … that children may be in need of protection” and to “protect children where necessary”. See CYFSA, s. 35(1)(a), (b).
[32]. As a result, there’s no need for a case-specific factual inquiry where the duty of care doesn’t exist. See JB, at para 44. In JB, the Court of Appeal struck out the plaintiff’s claim against various children’s aid societies and their employees for negligence, negligent supervision, and negligent investigation.
[33]. SP and JD argue that their claims for negligent supervision should be analyzed differently, following Miguna v Toronto Police Services Board, 2008 ONCA 799, 243 OAC 62. I disagree. In that case, the plaintiff sued, among others, the Chief of Police. The Court of Appeal held that a claim could lie against the Chief “in negligence, if properly framed and pleaded”. See Miguna, at para 84. The Chief allegedly failed to “exercise his supervisory and managerial authority over the Police Defendants by failing to ensure that the Police Defendants were adequately trained and didn’t engage in the improper conduct attributed to them in the pleading”. See Miguna, at para 85. But there’s an important distinction between Miguna and this case—the Chief conceded that he owed the plaintiff a duty of care, an essential element of either a negligent supervision or negligent investigation claim. The defendants don’t owe SP or JD a duty of care, so they can’t make either claim.
[34]. As a result, I endorse an order striking out that SP’s and JD’s claims for negligent investigation and negligent supervision in paragraphs 5, 6, 69, and 70 of the statement of claim as disclosing no reasonable cause of action.
C. Intentional Infliction of Mental Suffering
[35]. For the tort of intentional infliction of mental suffering, the plaintiff must prove:
(a) the defendant’s conduct was flagrant and outrageous;
(b) the defendant’s conduct was calculated to harm the plaintiff; and
(c) the defendant’s conduct caused the plaintiff to suffer a visible and provable illness.
See Boucher v Wal-Mart Canada Corp., 2014 ONCA 419, 120 OR (3d) 481, at para 41. The plaintiffs also plead the tort of intentional infliction of nervous shock. In my view, these are the same torts.
[36]. The defendants argue that the statement of claim doesn’t plead conduct that is “extreme, flagrant, and outrageous.” See Ramsay v Family and Children’s Services Niagara, 2022 ONSC 3650, at para 32. It’s not enough to simply submit “bald conclusory statements of fact and allegations of legal conclusions unsupported by material facts”. See Das v George Weston Ltd., 2018 ONCA 1053, at para 74, leave to appeal ref’d, [2019] SCCA no 69.
[37]. The plaintiffs’ pleading of the tort of intentional infliction of mental suffering or nervous shock is contained in paragraphs 71 to 75 of the statement of claim. In paragraph 71, they rely on “the facts as set out above”. There’s no express pleading of the allegedly “flagrant and outrageous” conduct. That said, in paragraphs 20 to 43, SP and JD have sufficiently pleaded flagrant or outrageous conduct:
• SP was “wrongfully arrested by OPP officers in front of her children” (para 20)
• on December 15, 2021, Hollister “attended the hospital with police and attempted to harass” SP (para 40)
• on August 12, 2021, Hollister abducted SP’s and JD’s infant child “without grounds” (para 42)
[38]. If true, these facts may rise to the level of “shockingly bad or excessive” or “glaring, scandalous, or conspicuously wrongful” conduct. See Eks v Tadeu, 2019 ONSC 3745, at para 117, aff’d 2020 ONCA 425. The reasonable person may find a wrongful arrest, followed by a state agency harassing a mother while she’s convalescing from childbirth, and then abducting her and her spouse’s baby, to be flagrant or outrageous conduct.
[39]. But the defendants also argue that SP and JD haven’t pleaded material facts to support the allegation that the defendants intended to cause mental suffering. The plaintiff can’t establish intentional infliction of mental suffering by showing only that the defendant “ought to have known that harm would occur.” See Boucher, at para 44.
[40]. I agree with the defendants. In paragraph 73, the plaintiffs plead that the defendants intended to injure them, but this statement is conclusory. SP and JD must plead material facts to show why the emotional distress or mental suffering was “desired” by the defendants or “substantially certain to follow” the defendants’ actions. See Piresferreira v Ayotte, 2010 ONCA 384, at para 73, leave to appeal ref’d, [2010] SCCA no 283.
[41]. As a result, I endorse an order striking SP’s and JD’s claim for intentional infliction of mental suffering or nervous shock in paragraphs 5, 6, and 71 to 75 of the statement of claim as disclosing no reasonable cause of action.
D. Charter Damages
[42]. To establish an entitlement to section 24(1) damages, SP and JD must show: (a) a breach of their Charter rights; and (b) that an award of damages would serve a functional purpose in the circumstances, having regard to the objects of section 24(1) damages. See Vancouver (City) v Ward, 2010 SCC 27, [2010] 2 SCR 28, at para 61.
[43]. Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. See Charter, s 7. To demonstrate that government action has infringed section 7 of the Charter, a plaintiff must show that: (a) the action interferes with or deprives individuals of life, liberty, or security of the person; and (b) the deprivation isn’t in accordance with a principles of fundamental justice. The plaintiff must identify and define the relevant principles of fundamental justice that apply, and then show that the infringement or deprivation of rights doesn’t accord with the identified principles. See Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307; R v Malmo-Levine, 2003 SCC 74, [2003] 3 SCR 571.
[44]. Everyone has the right to be secure against unreasonable search or seizure. See Charter, s 8. Searches or seizures conducted without a warrant are presumptively unreasonable. See Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145 at 161. But not every form of examination conducted by the government, and not every taking by the government, will constitute a “search” or “seizure” for constitutional purposes. An inspection is a search, and a taking is a seizure, where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access. See Tessling, at para 18. A search will be reasonable if it’s authorized by law, if the law itself is reasonable, and if the way the search was carried out is reasonable. See R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, at para 23.
[45]. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. See Charter, s 12. Section 12 protects: (a) against the imposition of a punishment so excessive as to be incompatible with human dignity; and (b) against the imposition of a punishment that is intrinsically incompatible with human dignity. The first form of cruel and unusual punishment involves punishment whose effect is grossly disproportionate to what would have been appropriate. The second form of the protection concerns a narrow class of punishments that are cruel and unusual by nature; these punishments will “always be grossly disproportionate” because they are intrinsically incompatible with human dignity. See R v Bissonnette, 2022 SCC 23, 80 CR (7th) 127, at paras 60-64.
[46]. Even reading the pleading generously (and keeping in mind that the plaintiffs are self-represented), SP and JD haven’t pleaded any of the elements of the Charter claims. There is only passing reference to the Charter:
• in paragraphs 1(f) and 2(f), SP and JD ask for damages under section 24(1) of the Charter
• in paragraphs 5 and 6, SP and JD list the alleged claims, including they are the “victim of…violations of [their] Canadian Charter of Rights and Freedoms…under sections 7, 8 and 12”
• in paragraphs 12 to 19, they describe each defendant, and plead that the defendant “acting [as] individuals and/or collectively with the other Defendants, committed the torts of…violations of Charter rights”
• in paragraph 77, the plaintiffs plead that the “the Defendants are additionally liable for violations of [SP and JD’s] rights pursuant to sections 7, 8 and 12 of the Canadian Charter of Rights and Freedoms”
[47]. On the basis that SP’s and JD’s pleading of facts in paragraphs 20 to 43 is some or all of the conduct that they allege breached their Charter rights, they still haven’t pleaded:
(a) the relevant principles of fundamental justice that apply;
(b) how the defendants’ conduct doesn’t accord with the identified principle(s);
(c) what was searched or seized;
(d) what is SP’s or JD’s reasonable privacy interest in the searches or seized item;
(e) the punishment they say the defendants imposed on them;
(f) the grossly disproportionate effect of the punishment; and
(g) the functional purpose of Charter damages here.
[48]. As a result, I endorse an order striking their claims for Charter damages as disclosing no reasonable cause of action in paragraphs 1(f), 2(f), 5, 6, and 77 of the statement of claim as disclosing no reasonable cause of action.
E. Leave to Amend
[49]. A litigant’s pleading shouldn’t lightly be struck without leave to amend. To the contrary, leave to amend should be denied only in the clearest of cases. This is particularly so where the deficiencies in the pleading may be cured by an appropriate amendment, as in this case. On this record, there’s no evidence of prejudice to the respondents if leave to amend is granted. See South Holly Holdings Limited v The Toronto-Dominion Bank, 2007 ONCA 456, at para 6; Tran v University of Western Ontario, 2015 ONCA 295, at para 26.
[50]. Between the parties’ submissions and these reasons, SP and JD may cure the deficiencies by an appropriate amendment. If they can’t do so (because they can’t plead the material facts), then the claim will have to be abandoned.
[51]. I endorse an order granting SP and JD leave to amend their pleadings for intrusion upon seclusion, intentional infliction of mental suffering, and Charter damages. SP’s and JD’s claim for negligence (or negligent investigation and supervision) can’t be cured because the defendants don’t owe them, as parents, a duty of care.
[52]. To ensure this action proceeds expeditiously, I endorse an order that the plaintiffs’ time limit to deliver their amended pleading is on or before July 2, 2024, and the defendants’ time limit to deliver their statement of defence is on or before August 2, 2024.
[53]. Because SP and JD are self-represented and to protect the minor plaintiffs going forward, I add one other case management direction. JD can’t represent the minor plaintiffs. Though JD can be appointed as the minor plaintiffs’ litigation guardian, he must appoint a lawyer. As a result, I endorse an order that JD shall deliver a notice of appointment of lawyer (Form 15B) on or before July 2, 2024. Of course, SP and JD can continue to represent themselves in their claim for defamation and any properly amended claims for intrusion upon seclusion, intentional infliction of mental suffering, and Charter damages.
[54]. I urge SP and JD to get legal advice. In addition, several resources may help them understand and apply the rules of court and the law of evidence:
• The CJC has published an informational handbook for self-represented litigants involved in civil, criminal, and family litigation procedures.
• Pro Bono Law Ontario is a charitable organization that promotes access to justice in Ontario by creating and facilitating opportunities for lawyers to provide pro bono (free) legal services to low-income people and charitable organizations. The organization’s primary focus is to help low-income people with civil (non-family) legal problems that aren’t covered by Legal Aid Ontario. Pro Bono offers a free legal advice hotline for up to 30 minutes of legal advice and assistance. The toll-free number is 1-855-255-7256.
• The National Self-Represented Litigants Project regularly publishes resources designed specifically for SRLs.
F. Sealing the Court File
[55]. A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record. See Courts of Justice Act, RSO 1990, c C.43, s 137(2).
[56]. In AA v BB, 2021 ONCA 147, a civil action, the trial judge anonymized the parties’ names under the CYFSA. The Court of Appeal held that the court has jurisdiction to do so through a “combination of his inherent jurisdiction and s. 137(2) of the CJA” (at para 52).
[57]. A confidentiality order should be granted only when:
(a) such an order is necessary to prevent a serious risk to an important interest in the context of litigation because reasonably alternative measures won’t prevent the risk; and
(b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression.
See Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41, at para 53.
[58]. The defendants argue that the court should make a sealing order because SP and JD have “placed a large amount of personal information about their children” and the related child protection proceedings into the public domain through their statement of claim, which contravenes the “spirit” of the section 87(8) of the CYFSA.
[59]. SP and JD argue that because of none of their children have been found in need of protection and there was no intervention, there’s no good reason to seal the court file. I disagree. It’s clear from the pleadings that the children’s aid society affected these children’s lives—they were questioned and their sibling was apprehended. The statement of claim has the effect of identifying the children, the children’s parents, and other members of their family, that the defendants received information that the children may need protection, and that the defendants conducted a child protection investigation.
[60]. The children’s privacy interest in these circumstances is an important interest:
Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law. This results in protection for young people’s privacy under the Criminal Code, R.S.C. 1985, c. C-46 (s. 486), the Youth Criminal Justice Act, S.C. 2002, c. 1 (s. 110), and child welfare legislation, not to mention international protections such as the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, all based on age, not the sensitivity of the particular child.
See AB v Bragg Communications Inc., 2012 SCC 46, [2012] 2 SCR 567, at para 17.
[61]. SP and JD haven’t suggested any reasonable “alternative measures”. Though anonymization is one option, it likely doesn’t goes far enough to protect the children’s privacy interests given that documents filed in the proceeding may disclose other facts that help identify the children.
[62]. SP and JD also haven’t identified any deleterious effects of a sealing order. Their opposition seems to be more about avoiding a concession or the impression that their children were the “subject of a child protection proceeding”.
[63]. As a result, I endorse an order that any document filed in this proceeding be treated as confidential, sealed, and not form part of the public record. Further, as an exercise of my inherent jurisdiction, I endorse an order that no person shall publish or make public information that has the effect of identifying a child who is the subject of this proceeding, or the child’s parent or a member of the child’s family.
G. Costs
[64]. The defendants seek $5100 in partial indemnity costs if they are successful. JD seeks an order that there shall be no costs of the motion regardless of the result. The defendants argue that since JD and SP are self-represented, there should be no costs order even if the defendants fail.
[65]. Subject to the provisions of an act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. See Courts of Justice Act, s 131.
[66]. In exercising its discretion under section 131 of the CJA to award costs, the court may consider, together with the result in the proceeding and any offer to settle or to contribute made in writing, the factors listed in rule 57.01 of the Rules of Civil Procedure.
[67]. In the usual case, costs are awarded to the prevailing party after judgment has been given. The traditional purpose of an award of costs is to indemnify the successful party in respect of the expenses sustained either defending a claim that in the end proved unfounded (if the successful party was the defendant), or in pursuing a valid legal right (if the plaintiff prevailed). Costs awards are “in the nature of damages awarded to the successful litigant against the unsuccessful, and by way of compensation for the expense to which he has been put by the suit improperly brought”. See British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71, [2003] 3 SCR 371, at paras 20-21.
[68]. The main objective is to fix an amount of costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case, rather than to fix an amount based on the actual costs incurred by the successful litigant. See Boucher v Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 OR (3d) 291 (CA), at para 26.
[69]. On one hand, I’ve struck out SP’s and JD’s negligence claim and granted a sealing order. On the other hand, I’ve granted JD and SP leave to amend their statement of claim. But a costs award should follow the overall outcome of a proceeding, rather than the proportion of issues on which a party succeeded or failed. See Chippewas of Nawash Unceded First Nation v Canada (AG), 2023 ONCA 787, at para 6. The overall success lies with the defendants—SP and JD argued that no claims should be struck out and no sealing order should be made, but I have ordered both. Though I’ve granted them leave to amend, they could’ve sought to file an amended claim that either responded to or conceded the defendants’ concerns.
[70]. That said, I don’t find the defendants’ costs to be fair, proportional, or reasonable. No evidence was filed on the motion. Only a notice of motion and factum was necessary. The defendants’ costs outline is ambiguous (15.6hrs on “Work in relation to Motion” but 10.6hrs on “Drafting Material for the motion”). As a result, I endorse an order that SP and JD pay to the defendants within 30 days the costs of this motion on a partial indemnity basis, inclusive of disbursements and taxes, fixed in the amount of $2500. This amount is fairer, more reasonable, and more proportional in the circumstances.
V. CONCLUSION
[71]. SP and JD believe that Bruce Grey CFS and its employees broke the law during a child protection investigation. I make no findings in this decision. But, even assuming SP’s and JD’s pleaded facts are true, their claim lacks the particulars necessary to assert several of the causes of action. As for negligence, they can’t sue Bruce Grey CFS or its employees for this tort under our law. Again, I urge SP and JD to get legal advice.
JUSTICE AGARWAL
Released: April 24, 2024
COURT FILE NO.: CV-23-74
DATE: 2024 04 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SP and others
Plaintiffs
- and -
AMY HOLLISTER and others
Defendants
ENDORSEMENT
Agarwal J.
Released: April 24, 2024
[^1]: At the hearing, JD sought to represent SP, which he can’t do under rule 15.01(3) of the Rules of Civil Procedure. JD and SP filed a joint factum. The defendants acknowledged that my order would apply to SP as though she had attended the hearing.
[^2]: LD, KD, and CD also sue for false imprisonment and breach of section 9 of the Charter. SD and GD only sue for intentional infliction of nervous shock.