In G.G. v. Ontario, 2025 ONSC 4484, the plaintiffs were partially successful in having a class action certified. The action was certified against Ontario but dismissed against 50 children’s aid society defendants. The plaintiffs settled with Ontario for $300,000. The societies sought costs from the plaintiffs.
The plaintiffs represented a class of mothers and claimed for compensation against the province and nearly every children’s aid society for the former policy of issuing “birth alerts.” Societies sent notices to hospitals regarding pregnant patients for the purpose of informing medical staff “that the patient raised a child protection concern in respect of the unborn child” and to ensure that the relevant society would be notified when the birth occurred.
The policy to eliminate birth alerts required the societies to issue letters notifying health care practitioners of the same. The advisory letters were to include information from the 2019 Final Report on Missing and Murdered Indigenous Women and Girls, which described birth alerts as racist, discriminatory, and a violation of the rights of the mother, child and community, and said that they disproportionately impacted Indigenous mothers.
In a 2020 press release from the Ministry of Children, Community and Social Services, it was stated that birth alerts “disproportionately affect racialized and marginalized parents more generally” and that “expectant parents were potentially deterred from seeking medical help or prenatal care out of fear of having a Birth Alert issued.”
The certification was not allowed against the societies because the court found that the representative plaintiffs and class members each have a cause of action against only one of those defendants but not against the rest, which they did not deal with.
It 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,” the court wrote.
The society defendants sought $564,318.61 in costs. While it was a considerable amount, the court acknowledged that counsel put in a considerable amount of work. The plaintiffs alleged the defendants’ case was “over lawyered.”
The court noted that “they may or may not be right” when arguing that the societies had three lawyers do the work when two would have sufficed. However, it was not fair criticism to say that the defendants’ lawyers were excessive in filing 10 affidavits from societies across the province when five may have sufficed.
“The Plaintiffs have issued a lawsuit claiming $50 million in general and aggravated damages,” wrote Justice Edward Morgan. “It would have been surprising for the CAS [children’s aid society] 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,” he added.
He noted that he was not inclined to second guess counsel’s work.
“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.”
Section 31(1) of the Class Proceedings Act provides that in discretion with respect to costs, the court may consider whether the proceeding was a test case, raised a novel point of law or related to a matter of public interest, the latter of which applied to the case at hand.
Per the provision, the defendants discounted their request by 10 per cent. The plaintiffs submitted that the Court of Appeal has referenced 30 per cent “as an approximate middle-range discount for a case that embodies a public interest.”
Justice Morgan discounted the costs request by 40 per cent given serious public interest and access to justice concerns. This amounted to $335,000 in costs.
Counsel for the plaintiffs were Margaret Waddell and Karine Bédard of Sotos LLP and Tina Yang and Melanie Anderson of Goldblatt Partners LLP.
Counsel for the children’s aid societies were Elizabeth Bowker, Jessica DiFederico, Grace Murdoch and Thomas Russell of Stieber Berlach LLP.
If you have information, story ideas or news tips for Law360 Canada on business-related law and litigation, including class actions, please contact Anosha Khan at anosha.khan@lexisnexis.ca or 905-415-5838.