Court File and Parties

COURT FILE NO.: CV-18-00603786-0000 DATE: 2023-08-31 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Roger Foley, Plaintiff -and- Victoria Hospital London Health Sciences Centre, South West Local Integration Network, Centre for Independent Living in Toronto, His Majesty the Queen in Right of Ontario, The Attorney General of Ontario and The Attorney General of Canada, Defendants

BEFORE: Robert Centa J.

COUNSEL: Roger Foley, self-represented (on this issue only) Neil Searles, for the Centre for Independent Living in Toronto Anita Varjacic, for the Victoria Hospital London Health Sciences Centre Christine Muir, for the South West Local Integration Network Padraic Ryan, for the Attorney General of Ontario Joseph Cheng, for the Attorney General of Canada

HEARD: August 28, 2023 (in writing)

Endorsement

[1] Roger Foley has sued the Victoria Hospital London Health Services Centre, the South West Local Integration Network, the Centre for Independent Living in Ontario, His Majesty the King in Right of Ontario, the Attorney General of Ontario, and the Attorney General of Canada. In his claim, Mr. Foley seeks damages of $20 million arising from the home and community care services he received and his treatment at the Victoria Hospital. He also seeks a declaration that various provincial and federal statutes and regulations violate his rights under the Charter.

[2] In April 2023, I was assigned to be the case management judge for this proceeding. On August 15, 2023, I convened the first case management conference. Although this action was commenced in 2018, it appeared to me that the first item on the agenda was to timetable the defendants’ Rule 21 motions to strike the claim as disclosing no reasonable cause of action. Counsel for Mr. Foley, however, explained that before those motions could be heard, it would be necessary for me to hear Mr. Foley’s motion to disqualify Neal Searles as counsel for the Centre for Independent Living Toronto. Mr. Searles advised me that his client, CILT, opposed the motion.

[3] After Mr. Foley’s counsel provided me with a brief explanation of the basis for the disqualification motion, I expressed my concern that the motion may be frivolous or vexatious or otherwise may be an abuse of the process of the court. On my own initiative under rule 2.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I notified counsel that I was considering dismissing Mr. Foley’s motion on that basis. I requested a copy of the motion record and offered an opportunity to provide written submissions addressing my concerns.

[4] Mr. Foley subsequently advised me that he would be representing himself during the rule 2.1 process. [1] He provided the material that I had requested from his counsel, and made written submissions, which I have now reviewed.

[5] Mr. Foley’s notice of motion describes the grounds for the disqualification motion as follows:

1. Mr. Neal Searles has a conflict of interest with his client Centre for Independent Living in Toronto (CILT). Mr. Neal Searles' interests are not aligned with his clients. Mr. Neal Searles is using his platform to further his own ideology.
2. Mr. Neal Searles will be a witness summons [sic] by Mr. Foley. Mr. Neal Searles' publications and stands on the issue of Euthanasia and Assisted Suicide are required to be used to move the matter forward and to be used as evidence on the matter, and Mr. Neal Searles will be required to give evidence and argument on the matter to defend his publications and stands on the matter.
3. In Order to protect the integrity of the administration of justice and the rule of law in Canada and safeguard Mr. Foley's proceeding and protect vulnerable and disabled persons from serious abuse and wrongful deaths, Mr. Searles cannot act as an advocate purporting to represent the interest of a disability organization.

[6] Mr. Foley’s concerns are rooted in a law review article that Mr. Searles wrote titled “Silence Doesn’t Obliterate the Truth: A Manitoba Survey on Physician Assisted Suicide.” [2] The nine-page article was published in 1996, when Mr. Searles was an articling student at law with the Public Trustee of Manitoba.

[7] CILT should not be deprived of its counsel of choice without good cause. Canadian courts exercise “the highest level of restraint before interfering with a party’s choice of counsel.” [3] Mr. Foley’s motion is frivolous because it will necessarily fail. For the reasons that follow, I dismiss Mr. Foley’s motion under rule 2.1.02.

The principles underpinning Rule 2.1

[8] Rule 2.1.02 permits the court to stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of process of the court. In Gao v. Ontario (Workplace Safety and Insurance Board), Myers J. reviewed rule 2.1 and provided the following guidance on its application:

Rule 2.1 is not meant to apply to close calls. It is not a short form of summary judgment. But that does not mean that it is not to be robustly interpreted and applied. Where a proceeding appears on its face to meet the standards of frivolous, vexatious or an abuse of process, the court should be prepared to rigorously enforce the rule to nip the proceeding in the bud. Rigorous enforcement of this rule will not only protect respondents from incurring unrecoverable costs, but should positively contribute to access to justice by freeing up judicial and administrative resources that are so acutely needed to implement the “culture shift” mandated by the Supreme Court of Canada. The new rule tailors appropriate procedural fairness for the category of cases involved and is an example of early resolution of civil cases that is very much in line with the goals set out in Hryniak. [4]

[9] The court is not to use rule 2.1.02 for close calls. However, neither the opposing parties nor the court should be required to devote scarce resources to motions that are clearly frivolous and vexatious. Allowing such motions to occupy space on the court docket takes time away from the main action and other cases. There is simply no benefit to allowing clearly frivolous and vexatious motions to continue. [5]

[10] A frivolous motion is one that lacks a legal basis or legal merit or has been brought without reasonable grounds. [6] A frivolous motion is one that will necessarily or inevitably fail. [7]

[11] Mr. Foley submits that for a motion to be dismissed under rule 2.1, a judge must find it to be both frivolous and vexatious. In support of this proposition, he relies on the decision of the Court of Appeal for Ontario in York University v. Markicevic. [8] This case does not assist Mr. Foley.

[12] In York University, the Court of Appeal was considering a motion for security for costs of an appeal under rule 61.06. That rule provides that a judge may make an order for security for costs of the proceeding and of the appeal “where it appears that, there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal.”

[13] The wording of rule 2.1.02, however, is quite different than the wording of rule 61.06. Rule 2.1.02 states that the court may dismiss a motion if it appears to be “frivolous or vexatious or otherwise an abuse of process of the court.” The use of the word “or” to separate the words “frivolous or vexatious or otherwise an abuse of process” in rule 2.1.02 stands in contrast to the use of the word “and” in rule 61.06.

[14] In my view, the text, context, and purpose of rule 2.1.02 permits the court to stay or dismiss a motion if it meets any one of the three grounds identified in the rule. It is a disjunctive test. There is no need for a motion to be both frivolous and vexatious for the court to dismiss that motion under rule 2.1.02.

[15] In any event, I find that Mr. Foley’s frivolous motion to remove counsel for an opposing party is, in this case, also vexatious.

The disqualification motion is frivolous

[16] Mr. Foley’s motion to disqualify Mr. Searles as counsel for CILT is frivolous. It will necessarily fail given the law related to the disqualification of counsel. [9]

[17] Litigants should not be deprived of their counsel of choice without good cause. For this reason, courts exercise the highest level of restraint before interfering with a party’s choice of counsel. Counsel will not be removed unless a fair-minded and reasonably informed member of the public would conclude that removal is necessary for the proper administration of justice. Justice Cronk summarized the applicable principles as follows:

As the motion judge properly noted, "A litigant should not be deprived of counsel of its choice without good cause. See MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 (S.C.C.)." For this reason, Canadian courts exercise the highest level of restraint before interfering with a party's choice of counsel. Where such discretionary, equitable relief is invoked, there must be a possibility of real mischief should a removal order be refused. The test is whether a fair-minded and reasonably informed member of the public would conclude that counsel's removal is necessary for the proper administration of justice: see for example, MacDonald Estate; Zawadzki v. Matthews Group Ltd. (1998), 18 C.P.C. (4th) 373 (Ont. Gen. Div.); Colville-Reeves v. Canadian Home Publishers Inc. (2002), 111 A.C.W.S. (3d) 1202 (Ont. S.C.J. [Commercial List]) [Colville-Reeves v. Canadian Home Publishers Inc. (2002), 2002 CarswellOnt 546 (Ont. S.C.J. [Commercial List])]; Lautec Properties Inc. v. Barzel Windsor (1984) Inc. (2002), 26 C.P.C. (5th) 131 (Ont. S.C.J. [Commercial List]). [10]

[18] “Real mischief” may come in the form of a conflict of interest for the lawyer in question. This may include circumstances where counsel is a necessary witness at the proceeding or where counsel acts for more than one party in the proceeding where the interests of the lawyer’s clients are not aligned. [11]

[19] Mr. Foley raises a number of reasons why Mr. Searles should be disqualified. In my view, Mr. Foley’s core allegation is that Mr. Searle’s has “betrayed his own client’s positions due to conflicts of interest and divided loyalty.” Mr. Foley explains his submission as follows:

CILT counsel's May 11th 2023 letter where he abandoned his client's position in order to defend the Attorney General Canada (AGC)'s position that the Carter and Truchon decisions along with the MAiD provisions based on those decisions are legitimate. Neil Searles is taking a stand to defend the foundation that the MAiD provisions were birthed on and continue to be expanded upon betraying his client's positions. Neil Searles is defending the MAiD provisions and the past decisions responsible for those provisions. Also, within Neil Searles' July 31 2023 response Affidavit, he takes a large section of his response to defending the Carter decision instead of presenting evidence in defence of his bright-line violations, this reveals that Neil Searles is more concerned about defending the legitimacy of Carter and the MAiD provisions than responding to the motion's evidence and cause of action. Meanwhile, publicly, Neil Searles' client CILT are concerned and very critical of the MAID provisions and agree with my action's position, but Neil Searles has neglected to put his client's true position forward, and Neil Searles has only gone against his client's public stands on the issue of how unsafe the MAiD provisions are that the Carter and Truchon decisions have birthed.

[20] This ground for disqualification is frivolous.

[21] First, CILT is aware of all of the material in Mr. Foley’s motion record, but opposes the motion to have Mr. Searles removed. It is not for Mr. Foley to tell CILT what its “true position” should be or to criticize Mr. Searles’ statements as being inconsistent with Mr. Foley’s view of CILT’s true interests. It is for CILT to define its positions and to hire counsel to advance those interests as CILT sees fit. No reasonable person would think otherwise.

[22] Second, when Mr. Foley refers to the “Carter decision” I infer that he is referring to Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331. This is a binding decision of the Supreme Court of Canada. Even if Mr. Searles “defend[ed] the Attorney General [of] Canada’s position that the Carter and Truchon decisions…are legitimate,” there would be no basis to remove counsel for a party because he accepted the legitimacy of a recent and binding decision of the Supreme Court. No fair-minded and reasonably informed member of the public would conclude that the removal of Mr. Searles is necessary for the proper administration of justice.

[23] Mr. Foley also submits that Mr. Searles should be disqualified because he will be a necessary witness at trial to give evidence about the article that was published in 1996. Mr. Foley submits as follows:

Moreover, Neil Searles "Silence Doesn't Obliterate the Truth: A Manitoba Survey on Physician Assisted Suicide and Euthanasia" paper was used by the British Columbia Civil Liberties Association (BCCLA)'s Carter legal team member (Jocelyn Downie) and BCCLA's Carter expert witness (Penny Lewis) to win the Carter case. Downie's and Lewis' usage of Searles' work will be cross-examined at trial to expose that Downie and Lewis are not credible. The credibility of the Royal Society of Canada (RSC) paper that Downie co-authored to present as evidence during the Carter trial is questioned pertaining to her use of Searles as well. Neil Searles will also be cross-examined as a necessary witness summons during trial to expose that his paper, his convictions, and his Senate testimony are not credible, not reliable, and that Downie and Lewis should not have relied on Neil Searles' so-called scientific research at all in order to advance the legalization of Assisted Dying. In addition to many pro-euthanasia proponents using Neil's paper in their publications, Dying With Dignity Canada (DWDC) has also used Neil's paper in its efforts. Neil Searles paper has reach far outside the 1990s and into the 2010s and beyond. Neil Searles and the persons who use(d) Neil's paper to legalize and expand Assisted Dying in Canada are currently using the Carter decision against me in my court case by stating that Carter is a legitimate decision, and that my case should not be heard and that the illegitimate decisions in Carter and Truchon should have the final say.

[24] I accept that there is a significant concern when counsel to the one of the parties will be a necessary witness at trial. The court is rightly concerned about the conflict between the duties a lawyer/witness owes to his or her client, and the duties of independence owed to the Court. A trial judge must be able to rely upon counsel for a high degree of objectivity and detachment. That fundamental relationship is compromised, and the administration of justice and integrity of the system accordingly are undermined, where the objectivity and credibility of counsel are subjected to challenge in the course of determining the substantive merits of an underlying dispute. [12]

[25] Mr. Foley’s attempt to call Mr. Searles as a witness at trial will inevitably fail. When a party suggests that a lawyer should be disqualified because they will be a necessary witness, the court will consider a range of factors including:

a. the stage of the proceedings; b. the likelihood that the witness will be called; c. the good faith (or otherwise) of the party making the application; d. the significance of the evidence to be led; e. the impact of removing counsel on the party’s right to be represented by counsel of choice; f. whether trial is by judge or jury; g. the likelihood of a real conflict arising or that the evidence will be “tainted”; h. who will call the witness; and i. the connection or relationship between counsel, the prospective witness and the parties involved in the litigation. [13]

[26] In this case, it is Mr. Foley that intends to call Mr. Searles as a witness, not CILT. There is no reason to believe that the trial judge would allow Mr. Foley to call Mr. Searles for any of the reasons offered above. It is extremely unlikely that the trial judge will allow the trial to be used to mount a collateral attack on the Carter decision, much less permit counsel for one of the parties in that proceeding to be cross-examined on the conduct of that proceeding. It is difficult to imagine less significant evidence than the evidence Mr. Foley purportedly wishes to elicit from Mr. Searles. There is no reason to believe that Mr. Searles is a necessary witness in this trial. On the other hand, if Mr. Searles is removed as counsel, CILT will lose the right to be represented by the party of choice. No fair-minded and reasonably informed member of the public would conclude that, in these circumstances, the removal of Mr. Searles is necessary for the proper administration of justice.

[27] Mr. Foley also seeks to disqualify Mr. Searles because of alleged defects in the article that Mr. Searles wrote 27 years ago. He submits that Mr. Searles:

was not only totally unqualified to conduct his dubious so-called research, there was also no ethics approval, peer review, or any appropriate scientific standards to protect against his fraudulent propaganda to advance his personal ideologies to this day, in conflict with the interest of his client, and to deceive the court.

[28] Mr. Foley’s motion record contains an affidavit from Dr. Harvey Chockinov, which criticizes the scholarship in Mr. Searles’ article. This affidavit does not assist Mr. Foley. Even if Mr. Foley is correct, it would only mean that the trial judge should exercise the gatekeeper function and not admit Mr. Searles’ article into evidence as opinion evidence. There is no need for Mr. Foley to call Mr. Searles as a witness to be cross-examined on the alleged shortcomings of his article.

[29] Summing up his submissions, Mr. Foley states as follows:

The Senate, Parliament, and the Court should have known better and have been duped, or the AGC did not do their job to expose illegitimacy by a pattern of deception and Counsel exploiting their clients and advancing their own views and so-called dubious research they themselves authored while at the same time acting as Counsel to destroy the foundation of justice in Canada. Neil Searles is taking unfair advantage of this forum for his so-called science and deception shielded by a disability organization to deceive the court. In the Goudge inquiry, there is supposed to be appropriate safeguards in the law to protect against fraudulent, untrustworthy, or fake studies or uncredentialed and unqualified persons like CILT Counsel propagating myths about so called research they conducted to advocate for themselves and their extreme personal ideologies to influence and fix outcomes. I, most regrettably, have to stand up to this illegitimacy, in order to correct the law, to protect the rule of law, and hold those responsible to full account. I am not going to tolerate illegitimacy in my action and I am totally justified in seeking Neil Searles' removal as Counsel for CILT for lacking candour, misleading and abusing his clients, soft peddling his client's positions, and using his client as a shield to propagate his personal ideologies and to defend his own research and legacy while misrepresenting his client to the court. None of what has occurred is good nor just and the integrity of justice and the lives and security of thousands of vulnerable Canadians are in immediate peril.

[30] This argument is essentially an amalgam of Mr. Foley’s other points. In my view, this ground for disqualification is also frivolous. Mr. Foley conflates Mr. Searles’ role as author with his role as counsel. Mr. Foley conflates the role of an expert witness with the role of counsel. Mr. Searles’ views on medical assistance in death may be relevant to CILT’s decision to retain him on this action, but having done so, his views pose no threat to the integrity of the justice system. No fair-minded and reasonably informed member of the public would conclude that the removal of Mr. Searles is necessary for the proper administration of justice.

[31] Mr. Foley cited a number of cases but none of them are analogous to this case or support his arguments. There is no evidence that Mr. Searles has a divided loyalty, a conflict with his client. Mr. Searles is not closely connected to the material facts underlying this proceeding and is extremely unlikely to be a necessary witness. [14]

[32] I dismiss Mr. Foley’s motion pursuant to rule 2.1.02.

Robert Centa J.

Date: August 31, 2023

[1] In his submissions, Mr. Foley suggested that he had been “forced” to represent himself because Mr. Searles threatened and intimidated Mr. Foley’s counsel on August 23, 2023. There is no evidence before me to substantiate this very serious allegation. I am not prepared to consider this allegation in the absence of evidence. In addition, Mr. Foley stated that he wanted to “flag some concerns” about my role as case management judge. If Mr. Foley is suggesting that there is a reasonable apprehension of bias, the proper procedure is for him to bring a motion returnable before me.

[2] (1996) 4 Health L. Rev. No. 3, at pp. 9-16.

[3] Re Kaiser, 2011 ONCA 713, 285 O.A.C. 275, at para. 21.

[4] 2014 ONSC 6100, 37 C.L.R. (4th) 1, at para. 9. The Court of Appeal for Ontario approved of this approach in Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87.

[5] Dunning v. Colliers Macaulay Nicolls Inc., 2023 ONSC 73, at para. 26.

[6] Annotation to rule 2.1 in Ontario Superior Court Practice, the Hons. Todd Archibald, Stephen Firestone and Tamara Sugunasiri; Van Sluytman v. Orillia Soldiers' Memorial Hospital, 2017 ONSC 692, at para. 11.

[7] R. v. Haevischer, 2023 SCC 11, at para. 67.

[8] 2017 ONCA 651.

[9] R. v. Haevischer, 2023 SCC 11, at para. 67.

[10] Re Kaiser, 2011 ONCA 713, 285 O.A.C. 275, at para. 21.

[11] Gondosch v. Gondosch, 2022 ONSC 6110, 165 O.R. (3d) 232, at para. 18.

[12] Stevens v. Salt (1995), 22 O.R. (3d) 675 (S.C.), at pp.3-4; Urquhart v. Allen Estate, [1999] O.J. No. 4816 (S.C.), at pp.11-12; Rice v. Smith et al., 2013 ONSC 1200, at paras. 18-19; Gondosch, at para. 19.

[13] Rice, at para. 20; Essa (Township) v. Guergis and Heck v. Royal Bank (1993), 15 O.R. (3d) 573 (Div. Ct.), at p. 15.

[14] Unlike in Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649, R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, R. v. W(W), (1995), 25 O.R. (3d) 161 (Ont. C.A.) at para. 25, R. v. White 2016 ONCJ 186, at para. 21; or Dowdell v. Rinzema.