Court File and Parties

Court File No.: CV-22-00680949-00CP Date: 2025-08-01 Superior Court of Justice - Ontario

Re: G.G. and W.W., Plaintiffs

And: His Majesty the King in Right of the Province of Ontario, Native Child and Family Services of Toronto, Linck Child, Youth and Family Support, Brant Family and Children's Services, Bruce Grey Child & Family Services, Children's Aid Society of Hamilton, Catholic Children's Aid Society of Hamilton, Children's Aid Society of Toronto, Children's Aid Society of the District of Nipissing and Parry Sound, Children's Aid Society of Algoma, Children's Aid Society of London and Middlesex, Children's Aid Society of Oxford County, Dufferin Child & Family Services, Durham Children's Aid Society, Family and Children's Services of Frontenac, Lennox and Addington, Family and Children's Services of Lanark, Leeds and Grenville, Family and Children's Services of Guelph and Wellington County, Family and Children's Services Niagara, Family and Children's Services of Renfrew County, Family & Children's Services of St. Thomas and Elgin, Family & Children's Services of the Waterloo Region, Halton Children's Aid Society, Highland Shores Children's Aid, Huron-Perth Children's Aid Society, Jewish Family and Child Service, Kawartha-Haliburton Children's Aid Society, Kenora-Rainy River Districts Child and Family Services, North Eastern Ontario Family and Children's Services, Peel Children's Aid Society, Sarnia-Lambton Children's Aid Society, Simcoe Muskoka Family Connexions, The Children's Aid Society of Haldimand and Norfolk, The Children's Aid Society of Ottawa, The Children's Aid Society of the District of Thunder Bay, The Children's Aid Society of the Districts of Sudbury and Manitoulin, The Children's Aid Society of the United Counties of Stormont, Dundas and Glengarry, Valoris for Children and Adults of Prescott Russell, Windsor-Essex Children's Aid Society, York Region Children's Aid Society, Akwesasne Child and Family Services, Anishinaabe Abinoojii Family Services, Catholic Children's Aid Society of Toronto, Dilico Anishinabek Family Care, Dnaagdawenmag Binnoojiiyag Child & Family Services, Kina Gbezhgomi Child & Family Services, Kunuwanimano Child & Family Services, Niijaansinaanik Child and Family Services, Nogdawindamin Family and Community Services, Ogwadeni:deo, Payukotayno James and Hudson Bay Family Services, Tikinagan Child and Family Services, and Weechi-It-Te-Win, Defendants

Before: Justice E.M. Morgan

Counsel:

• Margaret Waddell, Karine Bédard, Tina Yang, and Melanie Anderson, for the Plaintiffs
• Elizabeth Bowker, Jessica DiFederico, Grace Murdoch, Thomas Russell and Shadi Katirai, for the Defendants, Children's Aid Societies
• Spencer Nestico-Semianiw, Andrea Huckins, Waleed Malik, Lisa Brost, and Elizabeth Guilbault, for the Defendant, HMK in Right of Ontario

Heard: Cost submissions in writing

Costs Endorsement

[1] The Plaintiffs were partially successful in having this proposed class action certified. I ordered certification of the action as against the province of Ontario, but denied the motion to certify as against the 50 Children's Aid Society ("CAS") Defendants: G.G. v. Ontario, 2025 ONSC 3011. The Plaintiffs have settled with Ontario for all-inclusive costs in the amount of $300,000. The CAS Defendants now seek their costs from the Plaintiffs.

[2] The action was commenced by Plaintiffs representing a class of mothers claiming compensation against the province of Ontario and nearly every CAS in the province for the now defunct policy of issuing "birth alerts". Birth alerts were notices sent by a CAS to a hospital in respect of a pregnant patient in order "to identify to medical staff that the patient raised a child protection concern in respect of the unborn child, and to ensure that the relevant CAS would be notified when the birth took place": Ibid., at para. 1.

[3] It is no longer novel to say that the impugned policy of birth alerts was a discriminatory one, if not by its design then in its effect. The nature of the harm was described in my certification decision, as follows:

[4] The Policy Directive [terminating birth alerts] also required CASs to issue letters notifying the healthcare practitioners of this cessation, and provided them with a template for this correspondence. The Ministry required the advisory letters to include information from the recently published Final Report on Missing and Murdered Indigenous Women and Girls, 2019 (the "MMIWG Report"), which had determined that Birth Alerts disproportionately impacted Indigenous mothers and described Birth Alerts as 'racist', 'discriminatory', and a 'violation of the rights of the child, the mother, and the community': MMIWG Report, at pp. 1114, 1152-56, 1172.

[5] The Ministry's press release of July 14, 2020 further acknowledged that Birth Alerts disproportionately affect racialized and marginalized parents more generally. In particular, the Ministry took note that expectant parents were potentially deterred from seeking medical help or prenatal care out of fear of having a Birth Alert issued.

[4] I certified the action as against Ontario, but declined to certify it as against the CASs due to the Ragoonanan problem – i.e. that the representative Plaintiffs, and any putative class member, each have a cause of action only against one of the CAS Defendants, but not against all the rest with which they had no dealings: see Ragoonanan Estate v. Imperial Tobacco Canada Ltd., 51 OR (3d) 603. In other words, the problem with the proposed class action against the province's 50 CASs was not a weakness of the claim on its merits or with its identification of harmful conduct to a vulnerable group; rather, the problem was with the structure of the legal action as framed in the Plaintiffs' pleading.

[5] The CAS Defendants seek a total of $564,318.61 in costs. This represents $481,158.00 in fees plus $62,550.54 in HST, and a further $18,239.00 in disbursements plus $2,371.07 in HST. It is a considerable amount but, frankly, their counsel did a considerable amount of work. They filed 10 affidavits from various CAS representatives, did a substantial amount of legal research, conducted and attended at numerous cross-examinations, and argued the motion in a hearing that lasted two and a half days.

[6] Plaintiffs' counsel, together with the Law Foundation who provided third party funding for the claim, contend that CAS's case was "over lawyered". They make a detailed argument, and they may or may not be right when they say, for example, that there were moments where two lawyers would have sufficed but CAS had three lawyers do the work, etc. That is a judgment call about legal staffing on which opposing law firms and their clients might well differ.

[7] On the other hand, I do not think that it is fair criticism to say, as Plaintiffs' counsel does, that CAS and its lawyers went to excess by filing 10 affidavits from different CASs across the province when 5 would have sufficed. The Plaintiffs have issued a lawsuit claiming $50 million in general and aggravated damages. It would have been surprising for the CAS Defendants not to feel a need to respond to the certification motion with a very fulsome record. It is no more fair for the Plaintiffs to say that CAS should have filed half the amount of responding evidence than it would be for CAS to say that the Plaintiffs should have claimed half the amount of damages.

[8] In any case, I am not inclined to second guess the work of counsel for CAS. They did an excellent job, invested the resources that they thought it would take to succeed, and were indeed successful in achieving their desired result. I don't know if it is fair to say that the case was over lawyered, but it is certainly fair to say that it was lawyered for success.

[9] Plaintiffs' counsel submit that the CAS cost request is beyond what a party in their clients' position would reasonably expect to encounter. They point out that in Del Giudice v. Thompson, 2021 ONSC 6974, at paras. 53-60, Justice Perell set out a chart of 41 comparable cost awards. The average award was $334,000 and the median award was $215,000. An analysis by Justice Belobaba in Rosen v. BMO Nesbitt Burns Inc., 2013 ONSC 6456, at para. 5, likewise concluded that in class actions the expected range of cost awards was from the mid-100,000s to just under $500,000, with most falling somewhere in the middle of that range. As indicated at the outset, the Plaintiffs have settled with the province of Ontario for costs of $300,000.

[10] Given the disadvantaged sector of society represented by the class, Plaintiffs' counsel has invoked section 31(1) of the Class Proceedings Act, 1992, SO 1992, c.6 ("CPA"). That section provides that, "In exercising its discretion with respect to costs under subsection 131 (1) of the Courts of Justice Act, the court may consider whether the proceeding was a test case, raised a novel point of law or involved a matter of public interest." This case does present a point of public interest in view of the fact that birth alerts pertained to a particularly disadvantaged class of persons and were halted pursuant to the MMIWG Report, an important public policy study with respect to this very sector of Canadian society. It is no stretch to say that given the nature of the class and the subject matter of the claim, the section 31(1) discount in costs should apply.

[11] The CAS Defendants acknowledge the applicability of section 31(1) of the CPA. In an effort to comply with the guidance provided by that section, they indicate that they have discounted their cost request by 10%. For their part, the Plaintiffs contend that this small discount is insufficient. Plaintiffs' counsel submit that the Court of Appeal has referenced 30% as an approximate middle-range discount for a case that embodies a public interest: Das v. George Weston Limited, 2018 ONCA 1053, at para. 225. That figure is roughly in line with the averages identified by Justices Perell and Belobaba in Del Giudice, supra and Rosen, supra.

[12] Following the guidance provided by these cases, and given the serious public interest and access to justice concerns reflected by the class members, I would discount the CAS cost request by roughly 40% – i.e. by an amount at the higher end of the average discount range. That discount is intended to reflect the policy expressed in section 31(1) of the CPA.

[13] Using round numbers for convenience, the Plaintiffs shall pay the CAS Defendants costs in the all-inclusive amount of $335,000.

Morgan J.

Date: August 1, 2025