CITATION: M. v. The Children’s Aid Society of the Niagara Region, 2026 ONSC 1882

COURT FILE NO.: CV-18-00589318-0000

DATE: 2026327

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M.M., D.W. and B.W. by his Litigation Guardian M.M.

Plaintiffs

AND:

The Children’s Aid Society of the Niagara Region, The Hospital For Sick Children, Gideon Koren and Joey Gareri

Defendants

BEFORE: Merritt J.

COUNSEL: Gillian Hnatiw, Taylor Bain, Leigh Clark, Kate Kehoe for the Plaintiffs

Elizabeth Bowker, for the Defendant-The Children’s Aid Society of the Niagara Region

Logan Crowell, Kate Crawford for the Defendant-The Hospital For Sick Children, Joey Gareri

Aya Schechner, Darryl Cruz, for the Defendant – Gideon Koren

Vlad Calina, Caitlin Leach as Interveners

HEARD in writing: April 27 2024

ENDORSEMENT

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child -- 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.

(9) Prohibition re identifying person charged -- The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication -- A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

OVERVIEW

1On December 22, 2025 I dismissed the summary judgment motion brought by Dr. Gideon Koren, HSC and Dr. Joey Gareri (the “MDTL Defendants”) to dismiss this action commenced by M.M., D.W. and their minor child B.W.

2The Family and Children’s Aid Society of Niagara (“CAS”) took no position with respect to the MDTL’s arguments that the Plaintiffs’ claim is barred either by the expiration of the limitation period and/or pursuant to the common law doctrine of witness immunity. The CAS opposed the MDTL Defendants’ argument that they did not owe a duty of care to the Plaintiffs.

3The MDTL Defendants and the CAS agreed that no costs would be sought by any of the moving defendants against the CAS if they were successful on their respective motions for summary judgment, and, conversely, that the CAS would not seek costs against any of those defendants if the motion for summary judgment was not successful.

4The intervenors are not seeking costs.

5The Plaintiffs and the MDTL Defendants made written costs’ submissions and provided Bills of Costs.

6The Plaintiffs seek enhanced partial indemnity costs in the amount of $300,000 inclusive of HST and disbursements. Plaintiffs’ partial indemnity costs are 235,768.86 and their substantial indemnity costs are $313,222.45.

7The Plaintiffs submit that an award of enhanced partial indemnity costs is fair, proportionate, and reasonable in the circumstances because they were successful on all issues, the stakes were very high and the issues are extremely important to them and to the public. The Plaintiffs submit that the MDTL Defendants used the motion to test legal arguments that apply to dozens of outstanding actions against them in the hopes of bringing a swift end to all of the cases and the Plaintiffs have shouldered the financial burden of defending a test case against the well-funded MDTL Defendants.

8The MDTL Defendants submit that each party should bear its own costs given the parties’ divided success or, in the alternative that costs should be deferred to the trial judge, or in the further alternative, that the Plaintiffs’ costs are unreasonable and excessive and ought to be substantially reduced.

DECISION

9The MDTL Defendants shall pay costs on a partial indemnity scale in the amount of $235,768.86.inclusive of HST and disbursements to the Plaintiffs within 30 days.

ANALYSIS

10Section 131(1) of the Courts of Justice Act, R.S.O. 1990 c. C-43 provides that the costs of and incidental to 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.

11The purpose of awarding costs is:

(1) to indemnify successful litigants for the costs of litigation, although not necessarily completely;

(2) to facilitate access to justice, including access for impecunious litigants;

(3) to discourage frivolous claims and defences;

(4) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; and

(5) to encourage settlements. (Harley v. Harley, 2023 ONSC 4611 at para 22 and Bender v. Dulovic, 2023 ONSC 4753 at para 23, citations omitted)

12The factors to be considered in determining costs are set out in r. 57.01(1)

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer;

(h.1) whether a party unreasonably objected to proceeding by telephone conference or video conference under rule 1.08; and

(i) any other matter relevant to the question of costs.

13Rule 57.01(4) gives the court broad jurisdiction to award costs on a full or substantial indemnity basis or award no costs for part of a proceeding:

Nothing in this rule or rules 57.02 to 57.07 affects the authority of the court under section 131 of the Courts of Justice Act,

(a) to award or refuse costs in respect of a particular issue or part of a proceeding;

(b) to award a percentage of assessed costs or award assessed costs up to or from a particular stage of a proceeding;

(c) to award all or part of the costs on a substantial indemnity basis;

(d) to award costs in an amount that represents full indemnity; or

(e) to award costs to a party acting in person.

14The awarding of costs is not an exact science. The overarching principle is that costs must be fair, reasonable and proportionate (Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587Harley at para 34-35 and Bender at para 24-25).

15In Portuguese Canadian Credit Union v. CUMIS, 2010 ONSC 6701, at para. 12, the court said “In contested commercial litigation, such as this, one of the best indicators about the reasonable expectations of the parties regarding their potential cost exposure in the event they lose a step in a proceeding is how much they paid their own lawyers”

16In 100 Bloor Street West Corporation v. Barry's Bootcamp Canada Inc., 2025 ONCA 447 at para 71 the court discussed reasonable expectations and objectively reasonable expectations:

The reasonable expectation of the parties concerning the amount of the costs award is an important factor: Sky Clean Energy Ltd. (Sky Solar (Canada) Ltd.) v. Economical Mutual Insurance Company, 2020 ONCA 558, 152 O.R. (3d) 159, at para. 119. Not all expectations are reasonable. Therefore, the expectations of the parties should not “overwhelm the analysis of what is objectively reasonable in the circumstances of the case”: Apotex, at para. 62. Otherwise, the deeper pockets of the more affluent would artificially inflate costs, causing a “chilling effect on access to justice for less wealthy parties”: Apotex, at para. 62. This would be contrary to the fundamental objective of the costs system, which exists to facilitate access to justice: Boucher, at para. 37. “Although each costs assessment is a fact-driven exercise … the reasonableness of costs that represent an outlier must be objectively and carefully scrutinized, taking into account the chilling effect on litigation that this kind of award could have”: Apotex, at para. 63, citing Boucher, at para. 37.

17In Youkhana v. Pearson, 2024 ONSC 3184 Trimble J. reviewed general principles when assessing costs:

6In Tri-S Investments Limited v. Vong , [1991] O. J. No. 2292 (Gen. Div.), page 6, the Court said that the court’s function when fixing costs is not to second guess successful counsel on the of time that should or could have been spent to achieve the same result, unless the time spent is so grossly excessive as to be obvious overkill.

7In making this assessment, the following legal principles apply:

a) Costs awards as between litigants have a number of purposes, including to a) indemnify (partly) successful litigants, b) encourage settlement, c) correct behaviour of the parties, and d) discourage frivolous or ill-founded litigation (see 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10).

b) Generally costs should follow the event (see Bell v. Olympia & York Developments Ltd., (1994), 1994 CanLII 239 (ON CA), 17 O.R. (3d) 135 (C.A.)), be proportional to the issues in the action and the outcome, and be reasonable for the losing part to pay, all circumstances considered (see Boucher, supra, and Moon v. Sher et al., 2004 CanLII 39005 (ON CA), [2004] OJ No 4651 (C.A.).

c) Conduct of the parties is also relevant where it deserves sanction (see Davies v. Clarington (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.)). One party’s playing “hardball” is a relevant factor to consider (see 394 Lakeshore, supra.).

d) Costs should be proportional to the issues in the action and amount awarded. Proportionality, however, should not override other considerations, and determining proportionality should not be a purely retrospective inquiry based on the award. It should not be used to undercompensate a litigant for costs legitimately incurred. In Aacurate v. Tarasco, 2015 ONSC 5980 (S.C.J.), McCarthy, J. said:

I am mindful that the principle of proportionality calls upon the court to consider the amount claimed for costs in relation to the amount recovered in the judgment, as well as the reasonable expectation of the parties. In my view, however, proportionality cannot and should not be routinely invoked to save litigants from the actual costs of proceedings in circumstances where those litigants have put forth a wholly unmeritorious defence to a legitimate claim or have caused the proceeding to become unduly prolonged or complicated. The principle should be applied thoughtfully and in a balanced fashion along with the other factors set out in rule 57.01.

e) An undue focus on proportionality ignores principles of indemnity and access to justice (see Gardiner v. MacDonald, 2016 ONSC 2770 (S.C.J.) at para. 65). The trial judge must make an award that is fair and appropriate, overall.

18In Apotex the Court of Appeal held that after examining the factors the court must consider the overall fairness and reasonableness of the costs:

A proper costs assessment requires a court to undertake a critical examination of the relevant factors as applied to the costs claimed and then “step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable”: Restoule v. Canada (Attorney General), 2021 ONCA 779, 466 D.L.R. (4th) 2, at para. 356, citing Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 24. However, as this court recently reiterated in Restoule, at para. 357, referencing Murano v. Bank of Montreal (1998), 1998 CanLII 5633 (ON CA), 163 D.L.R. (4th) 21 (Ont. C.A.), at para. 100, “this overall sense of what is reasonable ‘cannot be a properly informed one before the parts are critically examined’”: para. 60.

19In this case the Plaintiffs were successful on all issues raised in the MDTL Defendants’ motion but were not successful in obtaining “boomerang” summary judgment.

20In support of their argument that there should be no costs because of divided success, the MDTL Defendants rely on Davis v. Amazon Canada Fulfillment Services, ULC, 2023 ONSC 5929, at para 36 and Farrage Estate v. D’Andrea, 2020 ONSC 7941, at para 15. Neither of these cases involved an unsuccessful boomerang summary judgment motion.

21Very little time was spent on the Plaintiffs’ boomerang summary judgement and in my view, their lack of success on this issue should not disentitle them to costs because the Plaintiffs were wholly successful in resisting the summary judgment motion.

22In this case the MDTL Defendants submit that costs should be deferred to the trial judge.

23Rule 57.03 (1) provides:

On the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall,

(a) fix the costs of the motion and order them to be paid within 30 days; or

(b) in an exceptional case, refer the costs of the motion for assessment under Rule 58 and order them to be paid within 30 days after assessment.

24The MDTL Defendants rely on Sheeraz v. Kayani, 2010 ONSC 3821, at para. 75 where the court said:

The question of whether the costs of the motion should be dealt with now or be left to the trial judge depends on whether the outcome of the motion should have been a foregone conclusion or whether it was a “close call” and whether the evidence heard at trial may shed light on the reasonableness of the motion. In the latter case, it may be best to leave the disposition of costs to the trial judge.

25Sheeraz is distinguishable because it was decided before the amendment to r. 20. The previous rule provided that where a party moves unsuccessfully for summary judgment, the Court shall award the opposing party the costs on a substantial indemnity scale unless it is satisfied that the making of the motion, although unsuccessful, was nevertheless reasonable. Evidence at trial may assist in assessing the reasonableness of a motion for summary judgment. However r. 20 does not now require an assessment of reasonableness unless the court is considering awarding substantial indemnity costs:

20.06 The court may fix and order payment of the costs of a motion for summary judgment by a party on a substantial indemnity basis if,

(a) the party acted unreasonably by making or responding to the motion; or

(b) the party acted in bad faith for the purpose of delay.

26I am not satisfied that a different order would be more just and I will fix costs.

27There are only two types of costs in Ontario: partial indemnity and substantial indemnity. Rule 57 provides sufficient flexibility and there is no need to create a hybrid scale of “enhanced partial indemnity costs”: Todd L. Archibald, Stephen E. Firestone and P. Tamara Sugunasiri, Ontario Superior Court Practice, 2026 Edition (Toronto: LexisNexis, Canda, 2025) at p 1-1496 citing Vanek v Great Atlantic & Pacific Co. of Canada 1999 CanLII 2863 (ON CA), [1999] O.J. No. 4599, 48 O.R. (3d) 228( Ont. C.A.) leave to appeal refused [2000] S.C.C.A. No. 50.

28Costs on an elevated scale may be warranted where they are explicitly authorized under r. 49 as a result of a failure to accept an offer to settle or where the unsuccessful party has engaged in behaviour worthy of sanction: Clots v. Rennie, 2024 ONSC 1012 at para 7.

29Costs on a substantial indemnity scale may be warranted where the unsuccessful party has engaged in behavior that is reprehensible, scandalous, or outrageous, and worthy of sanction: Davies v. Clarington (Municipality), 2009 ONCA 722, at para. 28; Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 134. Substantial indemnity costs are to be awarded “in rare and exceptional cases to mark the court’s disapproval of the conduct of the party in the litigation”: Hunt v. TD Securities Inc. (2003), 2003 CanLII 3649 (ON CA), 66 O.R. (3d) 481 (Ont. C.A.), at para. 123.

30Conduct worthy of sanction may include the circumstances giving rise to the litigation as well as the conduct in the proceedings: Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, at para. 43 citing Mortimer v. Cameron (1994), 1994 CanLII 10998 (ON CA), 17 O.R. (3d) 1 (C.A.), at p. 23.

31A substantial indemnity costs award is justified if “the proceedings are clearly vexatious, frivolous, or an abuse of process”. 100 Bloor Street West Corporation at para 71 citing Lewis v. Lewis, 2019 ONCA 690, 49 E.T.R. (4th) 175, at para. 17; 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42, 135 O.R. (3d) 681, at para. 53.

32A higher scale of costs might be justified if the proceeding is wholly devoid of merit or a party unnecessarily increased the costs of the litigating: Toronto Standard Condominium Corporation No. 1466 v. Weinstein, 2021 ONSC 3526 at para. 12 citing Standard Life Assurance Co. v. Elliott (2007) 86 O.R. (3d) 221, 2007 CanLII 18579 (Ont. S.C.), at para. 9; Best v. Ranking, 2015 ONSC 6269, at para. 142.

33In this case, there is no basis upon which to award costs on an elevated scale. The Plaintiffs are entitled to partial indemnity costs.

34The motion raised complex issues concerning the limitation period, duty of care and witness immunity. The motion was argued over four days. The motion records of all parties were over 3,500 pages in total. The parties citied over 180 authorities. My decision is over 40 pages.

35The issues were very important. This was a test case. The motion could have disposed of the Plaintiffs action and dozens of similar actions.

36The MDTL Defendants split the legal issues between them when arguing the motion. Together their partial indemnity costs are $255,255.58 which is just slightly higher than the Plaintiffs’ partial indemnity costs of $235,768.86.

37The MDTL Defendants note that they had more work to do on the motion because they responded to the submissions of the CAS and the intervenors. However, as the Plaintiffs rightly point out, their counsel was relatively new to the file, whereas counsel for the MDTL Defendants have been involved in the Motherisk case for over a decade. It is not surprising that Plaintiffs’ counsel would need to spend a significant amount of time on this motion, particularly given the high stakes.

38The MDTL Defendants have not pointed to any unnecessary or excessive work in the Plaintiffs’ Bill of Costs.

39The MDTL Defendants take issue with the amount of time spent by senior counsel on behalf of the Plaintiffs. It is noteworthy that the Plaintiffs were represented by a firm of three lawyers whereas the MDTL Defendants are represented by one of the largest law firms in Canada. In addition to senior counsel for the Plaintiffs, the firm had two junior lawyers called to the bar in 2021 and 2023. Plaintiffs’ counsel did not have the same ability to delegate work as the law firm for the MDTL Defendants.

40The hourly rates of the Plaintiffs’ counsel are lower than the hourly rates of counsel for Dr. Koren and on par with the rates of counsel for the hospital and Mr. Gareri.

41I find that the time spent and hourly rates were reasonable.

42There was no conduct by any party that lengthened the motion.

43I have considered the factors under r. 57.01(1) including the time spent, rates charged, the complexity and importance of the matter, the reasonable expectations of the parties, as well as the amount claimed by the Plaintiff in the Statement of Claim. In my view, having regard to all of the factors, I find that $ $235,768.86.inclusive of HST and disbursements is appropriate.

44The MDTL Defendants shall pay costs in the amount of $235,768.86.inclusive of HST and disbursements to the Plaintiffs within 30 days.

Merritt J.