Court File and Parties

2024 ONSC 2392 Court File No.: CV-23-1581 Date: April 23, 2024

SUPERIOR COURT OF JUSTICE – ONTARIO 7755 Hurontario Street, Brampton ON L6W 4T6

RE: LISA MAGUIRE, plaintiff AND: HIS MAJESTY THE KING IN RIGHT OF CANADA, JUSTIN TRUDEAU, THERESA TAM, JEAN-YVES DUCLOS, CAROLYN BENNETT, HIS MAJESTY THE KING IN RIGHT OF ONTARIO, DOUG FORD, SYLVIA JONES, MICHAEL TIBOLLO, BAYER INC, BAYER CANADIAN HOLDINGS INC. BAYER CROPSEINCE HILDINGS INC., MCNEIL CONSUMER HEALTHCARE, CITY OF HAMILTON, FRED EISENBERGER, JASON FARR, CANADIAN BROADCASTING CORPORATION, RANDY STEPHENSON, CHILDREN’S AID SOCIETY OF HALTON, CAROLYN OLIVER, DATIE DRYSDALE, NATASHA COSTELLO, CATHOLIC CHILDREN AID SOCIETY OF HAMILTON, ST. JOSEPH’S HEALTHCARE HAMILTON, SARAH BURTENSHAW, SARAH, HAMILTON HEALTH SCIENCES, MCMASTER CHILDREN’S HOSPITAL, CHILD ADVOCACY AND ASSESSMENT PROGRAM, HARRIET MACMILLAN, ANGELA MCHOLM, ANNE NIEC, JANINE AND DEBRA RIGGS

BEFORE: Justice Fowler Byrne

COUNSEL: Lisa Maguire, self-represented Plaintiff/Moving Party Asad Moten and Ramesha Javed, for the Defendants/Responding Parties, His Majesty The King In Right Of Canada, Attorney General Of Canada, Justin Trudeau, Prime Minister of Canada, Dr. Theresa Tam, Chief Medical Officer for Canada, Jean-Yves Duclos, Minister of Health For Canada, Dr. Carolyn Bennet, Minister Of Mental Health and Addictions of Canada, His Majesty The King In Right of Ontario, Attorney General Of Ontario, Doug Ford, Premier Of Ontario, Sylvia Jones, Minister of Health For Ontario, Michael Tibollo, Associate Minister Of Mental Health and Addictions For Ontario And as agent for counsel for the Defendants/Responding Parties City of Hamilton, Fred Eisenberger City of Hamilton Mayor and Jason Farr, City of Hamilton Ward 2 Councillor, Canadian Broadcasting Corporation, Randy Stephenson, Children’s Aid Society Of Halton, Carolyn Oliver, Child Protection Worker, Katie Drysdale, Child Protection Worker Natasha Costello, Child Protection Supervisor and the Catholic Children’s Aid Society Of Hamilton, St. Joseph’s Healthcare Hamilton and Sarah Burtenshaw, Occupational Therapist, Hamilton Health Sciences, McMaster Children’s Hospital, The Child Advocacy and Assessment Program, Harriet Macmillan, MD, FRCP(C), Psychiatrist/Pediatrician, Angela McHolm, PhD., C. Psych., Registered Psychologist, Anne Niec, MD, FRCP(C), Directors/Pediatrician, Janine Owen, MSW, RSW Social Worker, Debra Riggs, BA, CLS, Child Life Specialist

HEARD: March 25, 2024, by videoconference

Endorsement

[1] The Plaintiff has brought this motion seeking various forms of relief:

a. An Order setting aside my order of October 4, 2023, on the basis of fraud, or due to facts arising or discovered after the order was made, pursuant to r. 59.06(2)(a) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194;

b. An Order setting aside my order of October 4, 2023 on the basis that I failed to consider the totality of evidence, I misapprehended the law, and I misapprehended the evidence;

c. That the stay of action against all the Defendants except the Bayer Inc., Bayer Canadian Holdings Inc., Bayer CropScience Inc., Bayer CropScience Holdings Inc. Johnson & Johnson Inc., and McNeil Consumer Healthcare, be lifted;

d. An Order striking the Statements of Defence of the Halton CAS Defendants, the Hamilton CAS Defendants, Dr. Harriett Louise MacMillan and Anne Christine Niec, St. Joseph Healthcare Hamilton and Sarah Burtenshaw, pursuant to r. 25.11 on the basis that they contain fraudulent misrepresentations of material facts and/or fabricated evidence;

e. Leave to move for summary judgment against all defendants;

f. In the alternative to summary judgment, leave for the Canadian Constitution Foundation to intervene as an added party pursuant to r.13.01, or as a friend of the court, pursuant to r.13.02; and

g. Her costs.

I. Background

[2] Ms. Maguire commenced this claim on May 12, 2023. She has named thirty-seven different Defendants which can be categorized as follows:

a. Representatives of the federal government: the King in Right of Canada, the Attorney General of Canada, the Prime Minister, the Canada’s Chief Public Health Officer, Minister of Health for Canada, and Minister of Mental Health and Addictions (“the Canada Defendants”);

b. Representatives of the provincial government: the Attorney General for Ontario, the Premier, the Minister of Health for Ontario, the Associate Minister of Mental Health and Addictions (“the Ontario Defendants”);

c. Representatives of Bayer Inc.: Bayer Inc., Bayer Canadian Holdings Inc., Bayer CropScience Inc., Bayer CropScience Holdings Inc. (“the Bayer Defendants”);

d. Representatives of Johnson & Johnson: Johnson & Johnson Inc., and McNeil Consumer Healthcare (“J&J Defendants”);

e. Representatives of the City of Hamilton: City of Hamilton, the mayor of Hamilton, and a ward councillor (“the Hamilton Defendants”);

f. Representatives of various children’s aid societies: The Catholic Children’s Aid Society of Hamilton, the Children’s Aid Society of Halton, and Carolyn Oliver, Katie Drysdale and Natasha Costello, who are three separate child protection workers within the Halton organization (“the CAS Defendants”);

g. Representatives of the St. Joseph’s Healthcare System: St. Joseph’s Healthcare Hamilton and Sarah Burtenshaw, an occupational therapist employed there (“the St. Joseph Defendants”);

h. Representatives of the Hamilton Health Sciences: Hamilton Health Sciences, McMaster Children’s Hospital, the Child Advocacy and Assessment Program, Dr. MacMillan, Dr. McHolm, Annie Niec, Janine Owen, and Debra Riggs, who work within this organization (“the McMaster Defendants”);

i. The Canadian Broadcasting Corporation (“CBC”); and

j. the Plaintiff’s estranged husband Randy Stephenson.

[3] The Statement of Claim is close to 500 pages in length. It sets out a separate series of claims and allegations against each specific group of Defendants.

[4] Over the following several months, I received three separate requests pursuant to r. 2.1, seeking to have the claim dismissed on the basis that it was frivolous, vexatious and an abuse of process. On October 4, 2023, I released my decision for all the requests, and dismissed the action against all the Defendants save and except as against the Bayer Defendants and the J&J Defendants.

[5] The Bayer Defendants and the J&J Defendants have already argued a motion under r. 59.06(1) requesting that I amend or vary my October 4, 2023 order and dismiss the action as against them. That decision has been released separately. As a result, those Defendants did not participate in this motion.

[6] The Defendants represented on this motion oppose all the relief requested.

II. Issues

[7] This following issues must be determined on this motion:

a. Was the order of October 4, 2023, obtained on the basis of fraud?

b. Should the order of October 4, 2023 be varied or set aside on the basis of facts that have arose or discovered after October 4, 2023?

c. Should the order of October 4, 2023 be set aside because I failed to consider the totality of evidence, I misapprehended the law, or I misapprehended the evidence?

d. Should the stay of the action against the responding Defendants be lifted?

e. Should the Statements of Defence of the Defendants Halton CAS Defendants, Hamilton CAS Defendants, Dr. Harriett Louise MacMillan and Anne Christine Niec, St. Joseph Healthcare Hamilton and Sarah Burtenshaw, be struck due under r.25.11?

f. Should I grant summary judgment in favour of the Plaintiff against all the Defendants? And,

g. In the alternative to summary judgment, should I grant leave for the Canadian Constitution Foundation to intervene as an added party pursuant to r.13.01, or as a friend of the court, pursuant to r.13.02?

III. Analysis

[8] I will start by noting that Ms. Maguire swore her own affidavit in support of this motion and then also made submissions on her own affidavit. No party raised any objection in this regard.

[9] In addition, it was explained to the Plaintiff that the majority of the relief sought was premature. If I granted her relief to set aside or vary my order of October 4, 2023 under r. 59.06(2)(a), then she would then have an opportunity to move under r. 25.11 or r. 20 or explore the role of an intervenor. The moving parties would then have the opportunity to respond to those motions accordingly.

[10] The Responding Parties also indicated that the first Notice of Motion served by Ms. Maguire also relied on r.59.06(1). All parties agree though, that the Notice of Motion served and filed by Ms. Maguire which is before the court today only relies on r. 59.06(2)(a) and not r. 59.06(1). Ms. Maguire indicated to the court that after she served her first Notice of Motion, she reconsidered her motion and decided to only rely on r. 59.06(2)(a).

[11] As a result, I will only rule I will be considering in support of the relief sought is r. 59.06(2)(a).

A. Set Aside on Basis of Fraud

[12] Rule 59.06(2)(a) allows the court to vary or set aside an order as it was obtained on the basis of fraud.

[13] In support of her allegation that the order was obtained on the basis of fraud, the Plaintiff submitted that my order on October 4, 2023 prevented her from providing evidence of the fraud perpetrated by the responding parties on this motion.

[14] Ms. Maguire also alleged that the CBC made fraudulent misrepresentations in its written submissions on the r. 2.1 motion.

[15] When considering whether to set aside or vary an order under r. 59.06(2)(a) on the basis of fraud, the court must consider the following factors;

a. The fraud alleged must be proved on a reasonable balance of probability;

b. The proved fraud must be material and go to the foundation of the order;

c. The evidence of fraud must not have been known to the moving party at the time of the original proceeding;

d. The moving party applied reasonable or due diligence at the original hearing to obtain the evidence, applying an objective test: what did the moving party know, and what ought the moving party reasonably have known?; and

e. The motion to set aside must be brought without delay.

Lam v. Chen, 2019 ONSC 2510, at para. 22; Active Security and Cable Inc. v. Rogers Communications Canada Inc., 2022 ONSC 5844, at para. 10.

[16] The court has considered the term “fraud” as used in 59.06 to mean, “a false representation made either knowingly, or without belief in its truth or else recklessly, careless as to whether it is true of false”: Lam at para. 24; JV Mechanical v. Steelcase, 2010 ONSC 1443, at para. 24.

[17] The court will generally only exercise its discretion under this rule in “exceptional circumstances”, “sparingly” and “with the greatest of care”: Huron-Perth Children’s Aid Society v. R.C.K. et al., 2015 ONSC 5023, at para. 56. This is because of the important public policy goal of finality in litigation: Active Security, at para. 16.

[18] Where the order being attacked arises from a motion as opposed to a trial, the test will generally be applied more stringently against the moving party: 1307347 Ontario Inc. v. 1243058 Ontario Inc. (2001), 4 C.P.C. (5th) 153 (Ont. S.C.), at para. 3. This is because motions do not generally determine the outcome of the litigation: Active Security at para. 18.

[19] There is an inherent difficulty with moving to set aside an order pursuant to r. 59.06(2) when the order itself was made pursuant to r. 2.1. In particular, how can the moving party prove that there was fraud on the balance of probabilities, when no evidence was permitted on the motion? In coming to my decision on October 4, 2023, I reviewed the parties submissions and any other pleadings or case law submitted. My decision was based on how the Plaintiff’s claim was pleaded and on what she alleged. Indeed, the Plaintiff’s main argument is that my order prevented her from presenting evidence of the fraud perpetrated by the defendants in the previous years. That is fraud with respect to the action itself, not with respect to the relief sought under r. 2.1.

[20] Accordingly, Ms. Maguire has failed to show that a fraud was perpetrated on the court in relation to this motion.

B. Set Aside Based on Newly Discovered Facts

[21] The two-part test to be met in order to set aside an order on the ground of newly discovered facts is:

a. Whether the evidence probably would have changed the result had it been presented to the court at first instance; and

b. Whether the evidence could have been obtained, by the exercise of due diligence, before the original hearing and disposition of the motion: Tsaoussis (Litigation Guardian of) v. Baetz (1998), 41 O.R. (3d) 257 (C.A.), at para. 41; Huron-Perth, at para. 56.

See Active Security, at para. 9.

[22] Relief under r. 59.06 is discretionary. The conduct of the moving party is relevant. The central question is whether the moving party has shown that material facts have been newly discovered, which either by themselves or in combination with previously known facts, would provide reason to set aside the earlier decision: Lam, at para. 23.

[23] Unfortunately, Ms. Maguire could not provide me with any evidence of facts that arose or were discovered after my decision was released. My decision was released on October 4, 2023 and this motion was brought on March 8, 2024, a period of five months. A careful review of her Notice of Motion and her supporting affidavit disclose no instance of facts arising or being discovered during this time frame that would have affected the outcome of this motion. Again, the Plaintiff relies on the evidence that she would have submitted to the court had the action not been dismissed. This is the evidence that she relies on for her claim that existed prior to my decision of October 4, 2023.

[24] The Plaintiff also relies on the difficulty of being self-represented while also facing the challenges of caring for a high needs child. The court has the utmost sympathy for the Plaintiff with respect to her child. Nonetheless, while this may be grounds to seek an adjournment or an extension, it cannot be a reason why the rules of court and the accepted case law do not apply.

[25] Accordingly, I find that the Plaintiff has not satisfied me that my order should be varied or set aside pursuant to r. 59.06(2)(a).

C. Failure to Consider the Totality of Evidence, Misapprehension of the Law and Evidence.

[26] I could not have failed to consider the totality of the evidence, because no evidence is permitted in a motion under r.2.1. Whether or not I misapprehended the law is something that may be raised on appeal.

[27] This is not an appeal of my order of October 4, 2023. Nothing in this decision prevents the Plaintiff from pursuing such other relief, save and except the time limits placed on these proceedings and subject, of course, to the ultimate authority of the Court of Appeal to control its own process.

D. Reminder of Relief Sought

[28] In light of my decision to not set my order aside, the action remains dismissed as against the moving parties. Therefore, the remaining issues raised are moot.

E. Conclusion

[29] For the foregoing reasons, I make the following orders:

a. The Plaintiff’s motion to set aside or vary my order of October 4, 2023 is dismissed;

b. If the responding parties wish to seek their costs, they are to serve and file their written submissions, limited to two pages, double spaced, along with their Costs Outline and any Offers to Settle, on or before May 6, 2023; the Plaintiff may respond in writing, limited to 2 pages, double spaced, alone with her Costs Outline and any offers to Settle, on or before May 17, 2024; the responding parties may serve and file reply written submissions, limited to 2 pages, doubled spaced, on or before May 24, 2024; and

c. As a result of dismissing the Plaintiff’s motion under r. 59.06(2), the remainder of the relief sought is moot.

Fowler Byrne J.