Foley v. Victoria London Health Sciences Centre, 2024 ONSC 2848

Court File No.: CV-18-00603786-0000 CV-18-00592072-0000 Date: 2024-05-17

Ontario Superior Court of Justice

Between:

Roger Foley, Plaintiff

– and –

Victoria Hospital London Health Sciences Centre, South West Local Health Integration Network, Centre for Independent Living in Toronto, His Majesty the King in right of Ontario, the Attorney General of Ontario, and the Attorney General of Canada, Defendants

Counsel: Garifalia Milousis, for the plaintiff Joseph Cheng, Andrew Law, Marilyn Venney, Ryan Deshpande, for the Attorney General of Canada Daniel Huffaker, for His Majesty the King in Right of Ontario and the Attorney General of Ontario Anita M. Varjacic, for the London Health Sciences Centre Katharine Byrick and Nick Hollard, for the South West Local Health Integration Network Neil Searles, for the Centre for Independent Living in Toronto Sean Dewart, for Ken J. Berger

Heard in Writing: May 10, 2024

Robert Centa J.

[1] On December 19, 2023, I issued reasons for decision striking out the plaintiff’s claim in its entirety. [1] The parties have not been able to resolve the issue of costs. [2]

[2] Mr. Foley submits that I should order that his former lawyer, Ken Berger, be personally responsible for any costs of the proceeding. Mr. Berger filed evidence and submissions resisting this request. In the alternative, Mr. Foley submits that no costs should be awarded.

[3] Each of the defendants, except Canada, seek their costs on a partial indemnity basis. Several of the defendants submit that Mr. Foley should be required to pay all outstanding costs orders before further amending his statement of claim.

[4] For the reasons that follow, I dismiss Mr. Foley’s request for an order requiring Mr. Berger personally to pay any costs order. I award each defendant the costs they claimed, fixed on a partial indemnity basis. I also impose terms requiring Mr. Foley to pay all outstanding costs awards before he is permitted to amend his claim, failing which the defendants may move to have his action dismissed.

Background

[5] It will be necessary to provide the background to these actions before addressing the merits of the parties’ submissions on costs. This overview draws heavily on paragraphs 1 to 8 of my reasons for decision.

[6] The plaintiff, Roger Foley, is a 48-year-old man who lives with a severe neurodegenerative condition. He is physically disabled and requires substantial assistance with his daily activities. He has full mental capacity.

[7] In 2018, he commenced this action. Mr. Foley alleged that each of the defendants was liable to him for breaching his rights under the Canadian Charter of Rights and Freedoms, for breaches of the public law, and for breaches of various private law duties he alleged were owed to him. He sought $20 million in Charter damages, $3 million in punitive damages, and a significant number of declarations.

[8] Each of the defendants brought a motion to strike out the claim. By the time those motions were heard by me as the case management judge, Mr. Foley had already amended the statement of claim twice. The version of the statement of claim at issue on the motions to strike spanned 59 pages and well over 124 paragraphs. Mr. Foley alleged that:

a. he was badly mistreated by medical practitioners, medical staff, and the administration of the defendant London Health Sciences Centre. Among other allegations, Mr. Foley pleaded that the hospital deliberately withheld food and water from him for a week and pressured him to elect medical assistance in dying (MAID).

b. the defendant South West Local Health Integration Network discriminated against him when processing his requests for certain types of funding. He also asserted that SW LHIN unlawfully billed him for medically necessary services and pressured him to elect MAID.

c. the defendant Centre for Independent Living in Toronto discriminated against him in 2016 when processing his application for self-directed funding.

d. the MAID provisions of the Criminal Code, as well as several pieces of provincial legislation, were unconstitutional.

e. the defendants the Attorney General of Canada, the Attorney General of Ontario, and His Majesty the King in Right of Ontario were liable in damages for crimes against humanity, genocide, misconduct in prior litigation, and for failing to provide better or different types of health care and social benefits.

[9] I struck out the current version of Mr. Foley’s statement of claim in its entirety. The statement of claim badly violated the rules of pleading. It failed to plead material facts in support of the pleaded causes of action. The claim asserted causes of action that had no reasonable prospect of success or were unknown to law. The statement of claim did not permit each defendant to know what it was alleged to have done wrong. It was prolix and inflammatory.

[10] Mr. Foley’s statement of claim relied on a series of untenable legal propositions. First, much of the statement of claim rested upon the proposition that the Charter requires governments to provide a certain level of health care or social benefits beyond those currently provided. I held that the law of Canada is clear, and the Constitution confers no such right. Second, much of the statement of claim proceeded on the basis that the Supreme Court of Canada’s decision in Carter v. Canada was not binding on this court. [3] Mr. Foley asserted that the decision was wrongly decided, was infected by actual judicial bias, and that the Attorney General of Canada and other litigants engaged in misconduct during the litigation. In his factum, Mr. Foley submitted that the Attorney General of Canada “staged” and “rigged” the outcome in Carter, which was obtained in part because the plaintiffs “had the trial judges in their pockets and the proceedings were entirely corrupt.” I found that it was not permissible for Mr. Foley to mount a collateral attack on the decision in Carter, which was binding upon me.

[11] I did not grant leave to Mr. Foley to amend his statement of claim to challenge the constitutionality of the MAID provisions of the Criminal Code or the impugned provincial statutes and regulations. I dismissed the action against the Attorneys General and His Majesty in Right of Ontario.

[12] I granted Mr. Foley leave to amend his statement of claim to advance some but not all of the claims against the remaining defendants, being the hospital, SW LHIN, and CILT, but expressly noted that the grant of leave may be the subject of terms to be addressed during submissions on costs.

[13] I will first explain why I dismiss Mr. Foley’s request for an order that Mr. Berger personally pay the costs of the successful defendants. I will then explain why I award costs to the successful defendants in the amount sought. Finally, I will explain the terms that I am imposing on Mr. Foley before he may serve a fresh statement of claim on the remaining defendants.

It is not appropriate to require Mr. Berger personally to pay the costs of any party

[14] Mr. Foley submits that I should make an order requiring Mr. Berger personally to pay the costs of any party. For the reasons that follow, I decline to do so.

Process

[15] In this litigation, Mr. Foley was mostly represented by Ken Berger. Mr. Foley represented himself in response to my request that he show cause why his motion to remove counsel for CILT should not be dismissed as frivolous and vexatious. I dismissed his motion as frivolous and vexatious. [4]

[16] On December 19, 2024, shortly after I released my reasons for decision striking out his statement of claim, Mr. Foley delivered a notice of intention to act in person. On January 12, 2024, one week before his responding costs submissions were due, Mr. Foley requested a 60-day extension to provide his responding submissions on costs. Mr. Foley explained that he required this extension of time as an accommodation of his disabilities and ill-health. No party opposed that extension of time and I granted him the extension he sought.

[17] On March 29, 2024, Mr. Foley delivered a notice of appointment of lawyer that appointed Garifalia Milousis as his lawyer. Ms. Milousis filed submissions on behalf of Mr. Foley asking the court to hold Mr. Foley’s former lawyer, Mr. Berger, personally responsible for any costs payable in respect of the proceeding or motion. Mr. Foley did not deliver a notice of motion, motion record, or sworn evidence. The submissions appended a hand-picked selection of correspondence and other documents, which were described as exhibits but were merely appended to the submissions without an affidavit.

[18] On April 8, 2024, Mr. Berger’s counsel, Sean Dewart, wrote to the court to request an opportunity to make submissions on behalf of Mr. Berger. Those submissions were delivered on April 29, 2024.

[19] Mr. Berger filed his reply submissions on May 8, 2024.

Legal principles

[20] Mr. Foley relies on the provisions of rule 57.07(1)(c) of the Rules of Civil Procedure, which provides that:

57.07 (1) Where a lawyer for a party has caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default, the court may make an order, …

(c) requiring the lawyer personally to pay the costs of any party

(2) An order under subrule (1) may be made by the court on its own initiative or on the motion of any party to the proceeding, but no such order shall be made unless the lawyer is given a reasonable opportunity to make representations to the court.

(3) The court may direct that notice of an order against a lawyer under subrule (1) be given to the client in the manner specified in the order. [5]

[21] The court must apply a two-part test to determine the liability of a lawyer for costs under rule 57.07(1). First, the court must consider whether the lawyer’s conduct caused costs to be incurred unnecessarily. Second, as a matter of discretion, and applying extreme caution, the court must consider whether the imposition of costs against the lawyer personally is warranted. [6] Such awards are to be “made sparingly, with care and discretion, only in clear cases, and not simply because the conduct of a lawyer may appear to fall within the circumstances described in [r]ule 57.07(1).” [7]

[22] For the reasons that follow, I decline to order Mr. Berger personally to pay any costs order.

Mr. Foley should have brought a motion supported by evidence

[23] First, Mr. Foley did not bring a motion seeking an order under rule 57.07. Instead of bringing a motion supported by affidavit evidence, he simply sought that relief as part of his submission on costs. Prior decisions of the court have made clear that a party must bring a motion, supported by affidavit evidence, if a party wishes to make such serious allegations against their former counsel:

In order to embark on the two-part test, counsel for the defendants must bring a motion before me that provides, in affidavit form, the evidence supporting the allegation that costs should be awarded against the solicitor personally. The solicitor against whom costs are being sought is entitled to appear before the court to respond to the motion before a costs award is made.

The two-part test cannot be satisfied by the usual costs submissions. This is particularly true when the allegations against the solicitor relate to alleged conduct that occurred prior to the summary judgment motion. The costs submissions are not evidence that is acceptable to the court when serious allegations of this nature are made. [8]

[24] I agree with Mr. Foley that the case of 2403177 Ontario Inc. v. Bending lake Iron Group Limited suggests that it is not necessary in all cases for the party seeking an order under rule 57.07 to bring a motion. [9] However, that decision does not refer to the text of rule 57.07(2), which states that an order under rule 57.07(1) may be made “by the court on its own motion or on the motion of any party to the proceeding.” In my view, the text of the rule creates only two routes to an order under rule 57.07: the court on its own motion or on the motion of a party. The Rules of Civil Procedure define a motion to mean “a motion in a proceeding or an intended proceeding.” [10] Rule 37.01 states that “a motion shall be made by notice of motion unless the nature of the motion or the circumstances make a notice of motion unnecessary.” Rule 37.10 requires the moving party to deliver a motion record including a copy of all affidavits and other material.

[25] In this case, I find that Mr. Foley was required to deliver a notice of motion and supporting affidavit material. There is nothing about the nature or circumstances of this case that make a notice of motion unnecessary. Mr. Foley is making very serious allegations about his former counsel. He has not provided sworn evidence underpinning those allegations. Instead, he relies on costs submissions and a curated collection of documents that are not properly in evidence before the court. In this case, it is necessary, but not sufficient, for Mr. Berger to be given an opportunity to respond to these serious allegations. He should also have been given an opportunity to test Mr. Foley’s sworn evidence under cross-examination.

[26] However, it has now taken almost five months to resolve the costs of the defendants’ motions to strike. In this case, I think it is preferable to deal with Mr. Foley’s request on the merits, rather than requiring him to bring a further motion, which will only exacerbate this unfortunate delay.

Mr. Berger’s conduct did not cause costs to be incurred unnecessarily

[27] I find that Mr. Berger did not cause costs to be incurred unnecessarily. It is Mr. Foley, not Mr. Berger, who chose to proceed with what he recognized to be risky litigation that was unlikely to succeed. Lawyers are not gatekeepers for their client’s causes and do not become the insurer against adverse cost awards for advancing difficult cases on their client’s instructions. [11] For the reasons that follow, I do not accept Mr. Foley’s submissions that Mr. Berger’s conduct caused legal costs to be incurred unnecessarily. Instead, I find that Mr. Berger was acting on Mr. Foley’s instructions to pursue high-risk litigation in an aggressive manner.

[28] First, it is apparent that Mr. Foley’s strong desire to pursue a claim for damages drove this litigation and his instructions to Mr. Berger. In his submissions on costs, Mr. Foley suggests that Mr. Berger provided him with poor advice because he did not advise Mr. Foley to advance the claim of misfeasance in public office in addition to the other claims:

While this goes beyond the context of the motions to strike and these cost submissions, the plaintiff notes that Mr. Berger did not properly advise the plaintiff in separate but related areas. For example, Mr. Berger never informed the plaintiff about the tort of misfeasance in public office, which the plaintiff was advised (by a separate lawyer) would have been the more proper claim to make pertaining to some of the alleged misconduct the plaintiff faced. Instead of Mr. Berger properly claiming the tort of misfeasance in public office for the plaintiff, Mr. Berger chose to carelessly plead and aggressively argue the plaintiff’s case in a vexatious and ineffective manner. The plaintiff only learned of the existence of tort of misfeasance in public office when consulting another lawyer after the plaintiff had ended his retainer with Mr. Berger.

[29] While the merit of a claim of misfeasance in public office is not before me, it is, with respect, difficult to see how such a claim could be plausibly advanced on the facts as pleaded in the prior versions of the statement of claim. In any event, this submission supports my conclusion that Mr. Foley intended (and still intends) to advance aggressive and high-risk civil claims in this proceeding. He was no mere passenger.

[30] Second, Mr. Foley complains that Mr. Berger engaged in a media relations strategy of which Mr. Foley did not approve. Even if true, that conduct is outside of the litigation and did not contribute in any way to legal costs being incurred unnecessarily. I do not accept Mr. Foley’s submission that the issues related to the media relations campaign are in any way relevant to the rule 57.07 issue.

[31] Third, Mr. Foley submits that Mr. Berger failed to advise him properly regarding an offer by the Attorney General of Canada to convert the action into an application. Even if this is true, it did not cause unnecessary costs to be incurred. The Attorney General of Canada is not seeking any costs of its successful motion to the have the action dismissed. In addition, Mr. Foley would not have been able to advance his claims for damages against Canada or the other defendants in that application. Mr. Foley is very interested in obtaining damages from the defendants. He would have had to proceed with one application against Canada and another action seeking damages. It is not clear that this would have saved any legal expenses. Finally, whether advanced in an application or an action, Mr. Foley’s claims against Canada were doomed to fail.

[32] Fourth, Mr. Foley complains that Mr. Berger commenced two separate claims. While true, this did not increase the legal costs materially. Mr. Berger commenced the second action to overcome his omission to provide notice to the Crown under the Crown Liability and Proceedings Act. The two actions did not contribute materially to the costs incurred. Indeed, I dismissed the first action without costs on consent of the parties. [12]

[33] Fifth, I do not accept Mr. Foley’s submission that the tone and content of the statement of claim and submissions were only the responsibility of Mr. Berger. Mr. Foley filed his own submissions in support of his motion to disqualify counsel for CILT. As noted above, I dismissed that motion as frivolous and vexatious. [13] Mr. Foley’s submissions on that motion were of a similar tone and content to his statement of claim. For example, he summarized his submissions 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. [14]

[34] The statement of claim and submissions authored by Mr. Berger were very similar in tone and ambition to Mr. Foley’s own submissions. The email correspondence demonstrates that Mr. Foley reviewed and approved drafts of the factum filed by Mr. Berger. There is no evidence to suggest that Mr. Foley expressed any concerns with the forcefulness of the submissions advanced on his behalf. Moreover, having read some of the email correspondence between Mr. Foley and Mr. Berger, I think it is fair to say that Mr. Berger represented Mr. Foley’s views fairly in the pleadings and submissions filed in court. I do not accept Mr. Foley’s submission that Mr. Berger alone should be held solely responsible for these choices.

[35] Sixth, Mr. Foley complains that Mr. Berger did not advise him of the weaknesses in his claim, which caused unnecessary legal fees. This submission is inconsistent with the evidence. In his own application to the to the Court Challenges Project, Mr. Foley states that he understands that his “application is a test case, as my case raises an issue that has not yet been fully addressed by the courts.” Mr. Berger repeatedly advised Mr. Foley that the outcome of the motions to strike the claim was uncertain. Indeed, Mr. Berger went so far as to advise Mr. Foley in advance of the motions that his chance of success was “highly doubtful if not impossible.” Despite this advice, Mr. Foley proceeded to oppose the motions to strike.

[36] In conclusion, I do not find that Mr. Berger caused costs to be incurred unnecessarily.

Imposing costs personally against Mr. Berger is not warranted

[37] At the second stage, I must consider whether circumstances warrant imposing costs against Mr. Berger personally. [15] The Supreme Court of Canada has emphasized that the threshold for exercising this discretion is a high one. [16] Courts should exercise this discretion rarely, and must remain mindful of the duties lawyers owe to their clients to bring forward with courage unpopular causes:

Moreover, courts must be extremely cautious in awarding costs personally against a lawyer, given the duties upon a lawyer to guard confidentiality of instructions and to bring forward with courage even unpopular causes. A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties of his or her calling. [17]

[38] Such awards are to be “made sparingly, with care and discretion, only in clear cases, and not simply because the conduct of a lawyer may appear to fall within the circumstances described in rule 57.07(1).” [18] The Supreme Court explained when an award of costs against a lawyer can be justified as follows:

In my opinion, therefore, an award of costs against a lawyer personally can be justified only on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice. This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate. Thus, a lawyer may not knowingly use judicial resources for a purely dilatory purpose with the sole objective of obstructing the orderly conduct of the judicial process in a calculated manner. [19]

[39] Mr. Foley has not satisfied me that Mr. Berger’s conduct rises to this level of misconduct. Mr. Foley alleges that Mr. Berger’s drafting was poor, that his case analysis was weak, and that he should have advised Mr. Foley that he was unlikely to achieve his litigation goals. In my view, even if Mr. Foley proved those facts, in the circumstances of this case that would not justify making an order requiring Mr. Berger to pay the costs of the proceeding.

[40] Mr. Foley may have other remedies against Mr. Berger. He has not, however, met the very high bar necessary to obtain an order requiring Mr. Berger to be personally responsible for the costs of the proceeding. I decline to exercise my discretion to grant an order against Mr. Berger under rule 57.07.

Costs to be awarded

[41] I will now consider whether to make a costs order in favour of the defendants and, if so, in what amounts.

Applicable legal principles

[42] In Apotex Inc. v. Eli Lilly Canada Inc., the Court of Appeal for Ontario restated the general principles to be applied in the court’s exercise of its discretion to award costs. [20] Fixing costs is a discretionary decision under section 131 of the Courts of Justice Act. [21] In exercising my discretion, I may consider the factors listed in rule 57.01. These factors include the result achieved, the amounts claimed and recovered, the complexity and importance of the issues in the proceeding, the principle of indemnity, the reasonable expectations of the unsuccessful party, as well as any other relevant matter.

[43] A proper costs assessment requires the 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.” [22] The overarching objective is to fix an amount of costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case, rather than to fix an amount based on the actual costs incurred by the successful litigant. [23]

[44] While the reasonable expectation of the parties concerning the amount of a costs award is a relevant factor that informs the determination of what is fair and reasonable, it is not determinative and cannot be allowed to overwhelm the analysis of what is objectively reasonable in the circumstances of the case. [24]

[45] Costs that are reasonable, fair, and proportionate for a party to pay in the circumstances of the case should reflect what is reasonably predictable and warranted for the type of activity undertaken in the circumstances of the case, rather than the amount of time that a party’s lawyer is willing or permitted to expend. [25]

[46] The party seeking costs bears the burden of proving them to be reasonable, fair, and proportionate. The absence of dockets is not an automatic bar to proving or receiving an award of costs. [26] However, absent dockets, a description of the activities for which fees and disbursements are claimed must be sufficient to permit for the kind of close scrutiny that the court is required to undertake. The material provided for the assessment must allow the court to come to a conclusion as to the amount of time reasonably required by the party seeking costs to deal with all aspects of the proceedings for which costs are claimed, including whether there was over-lawyering or unnecessary duplication of legal work. [27]

The defendants are entitled to an award of costs

[47] In paragraph 1 of his submissions, Mr. Foley requested that no costs be ordered. However, Mr. Foley made no submissions in support of this request in either his main or reply submissions.

[48] It is difficult to see on what basis the defendants would not be entitled to some amount in costs for these motions. Mr. Foley could have persuaded me that I should depart from the principle that the successful parties are entitled to their costs, but he has not done so.

[49] I find that the defendants are entitled to an award of costs.

Position of the parties

[50] The Attorney General of Canada did not seek any costs of the proceeding.

[51] Ontario seeks $9,500 in costs of the proceeding. Ontario seeks indemnity for 85 hours of counsel time, which properly excludes time spent on earlier motions where costs have already been determined, and all time spent by law students and counsel other than Mr. Huffaker. [28] At a partial indemnity rate of $370 per hour, Mr. Huffaker’s claimed time would amount to $31,450. Nevertheless, Ontario seeks only $9,500, which it submits is fair and reasonable given its complete success in having a complex $20 million claim against it dismissed.

[52] London Health Sciences Centres seeks its costs fixed on a partial indemnity basis, in the amount of $27,911.23. The hospital only claims time spent by Ms. Varjacic and has excluded all other time spent by several other lawyers on the file. The hospital has also excluded time spent on earlier motions where costs have been determined. [29] The hospital notes that it was entirely successful in having the statement of claim struck out and that Mr. Foley did not receive leave to amend his claim for several of the causes of action. The hospital notes that the pleading was complex and that Mr. Foley’s approach to the litigation increased its costs.

[53] SW LHIN seeks its costs on a partial indemnity basis, fixed in the amount of $26,813.54, inclusive of HST and disbursements. SW LHIN notes that Mr. Foley amended his claim twice, which resulted in SW LHIN having to update its motion material several times. Notwithstanding the earlier amendments, the statement of claim was still struck out in its entirety. SW LHIN notes the same concerns with Mr. Foley’s materials that I discussed in paragraphs 24 to 28 of my reasons for decision. SW LHIN has also excluded time spent on earlier motions where costs have been determined and for case conferences addressing the motions to strike. [30]

[54] CILT seeks its costs of the proceeding on a partial indemnity basis, fixed in the amount of $16,750.69, inclusive of HST and disbursements. CILT has removed all of the time related to case conferences leading to the earlier orders of Lederer J. The complexity of the statement of claim required CILT to spend significant time responding to the many issues raised in it.

[55] CILT also seeks its costs of Mr. Foley’s motion to remove CILT’s counsel on a partial indemnity basis, fixed in the amount of $4,473.67.

[56] Mr. Foley did not make any submissions about any of the specific amounts claimed by the defendants. While Mr. Foley could have persuaded me that it would not be fair and reasonable to require him to pay the amounts claimed, he has not done so. Nevertheless, I have considered all of the relevant factors and looked at the amounts claimed by the defendants with a critical eye.

Award

[57] In my view, it is fair and reasonable to require Mr. Foley to pay the amounts claimed by the defendants. First, the defendants were overwhelmingly successful. The entire statement of claim was struck out and I did not grant leave to Mr. Foley to amend his claim with respect to many of the causes of action that he previously asserted. Moreover, Ontario had the entire action against it dismissed. Although Mr. Foley received leave to amend his claim with respect to some of the claims against some of the defendants, this is not a case of divided success.

[58] Second, Mr. Foley’s claim was ambitious. He sought many declarations of constitutional invalidity as well as $20 million in damages. He alleged very serious misconduct against a wide range of actors. He must have anticipated that the defendants would mount a vigorous defence to his claims.

[59] Third, the action was complex in the sense that it advanced many different causes of action and did so in a way that required a careful and comprehensive response by the defendants. There is no doubt that Mr. Foley’s choice to plead the claim as he did required the defendants to deliver detailed materials on the motions to strike.

[60] Fourth, the principle of indemnity strongly supports the amounts of costs claimed by the defendants. Each defendant has excluded timekeepers and some time from their bills of costs. The hourly rates and the number of hours spent are all very reasonable given what was at stake in the litigation. Although Ontario’s claimed costs are much lower than the other defendants, that reflects Ontario’s decision to discount heavily the amount claimed. That decision reflects well on Ontario and does not undermine the reasonableness of the amounts claimed by the other defendants.

[61] Fifth, I infer that the cost awards of this magnitude would have been in the reasonable contemplation of Mr. Foley. In his submissions, Mr. Foley states that he has paid $209,500 in legal fees over the life of this proceeding. Mr. Foley knew how expensive this action was and that he had sued five groups of defendants, each with their own counsel. He knew that he was pursuing his action with great energy and conviction. I infer that he must have been aware that counsel for the defendants would meet this level of activity.

[62] Stepping back and considering the circumstances of this case and the results obtained, it is fair and reasonable to order Mr. Foley to pay the following amounts (inclusive of HST and disbursements) to the following defendants:

a. $9,500 to Ontario

b. $27,911.23 to London Health Sciences Centres;

c. $26,813.54 to SW LHIN; and

d. $21,224.36 to CILT comprising $4,473.67 for the recusal of counsel motion and $16,750.69 for the balance of the proceeding.

Terms

[63] In my reasons for decision, I asked each of the parties to identify whether there were any other unpaid costs orders from any other steps in either of the two actions, including any applications for leave to appeal. I also asked the hospital, SW LHIN, and CILT to make submissions regarding whether I should order that all outstanding costs orders (including the costs of the motion to strike) be paid before Mr. Foley received leave to file a further amended pleading. [31]

[64] The defendants advised that as of May 2024, Mr. Foley has not complied with prior court orders in court file CV-18-00603786-0000 (the continuing action) that he pay a total of $15,000 in costs to the defendants:

a. $10,000 (Lederer J., March 16, 2020);

b. $5,000 (Swinton, Backhouse, Mandhane JJ., April 27, 2022)

[65] The defendants submitted that I should require Mr. Foley to pay all outstanding costs orders before he be granted leave to amend his claim.

[66] In my reasons for decision, I expressly asked Mr. Foley to address the defendants’ submissions regarding terms in his responding submissions on costs. [32] He did not do so.

[67] Rule 57.03(2) states that, where a party fails to pay costs of a motion as required under rule 57.03(1), “the court may dismiss or stay the party’s proceeding, strike out the party’s defence, or make such other order as is just.” Similar relief is available under rule 60.12 where a party fails to comply with an interlocutory order of the court.

[68] Generally, a litigant will not be permitted to continue with proceedings where a costs order remains unfulfilled. [33] Justice Dunphy summarized the principles that guide the court’s exercise of discretion under these rules, which include that:

a. where there has been non-compliance with an order of the court, the court should be alive to the possibility that its process is being abused;

b. the right of access to the courts must be accompanied by the responsibility to abide by the Rules of Civil Procedure and to comply with orders of the court; and

c. the court ought not to sit in appeal of the prior cost awards as seeking relief against prior costs orders constitutes a collateral attack on orders previously made. [34]

[69] I am concerned that Mr. Foley has not complied with two prior orders of the court. Indeed, Mr. Foley has failed to comply with the order of Lederer J. for over four years. He has also failed to comply with the order of the Divisional Court for over two years despite that order explicitly making the costs payable within 30 days. Compliance with court orders is not optional. Court orders must be taken seriously.

[70] It would be unfair to the defendants to require them to answer Mr. Foley’s claims while the cost orders remain unpaid.

[71] I accept that impecuniosity is a factor to take into consideration when considering the consequences of a party’s failure to pay a costs order. [35] Mr. Foley, however, filed no evidence to demonstrate his impecuniosity. He did not request an extended period of time to pay either the amounts outstanding or these costs orders. Moreover, in his submissions he stated that he had paid over $200,000 in legal fees to his own lawyer. In my view, there is insufficient evidence before me to support an inference that Mr. Foley is impecunious.

[72] In considering the imposition of terms, the goal is to strike a balance between enforcing court orders and providing Mr. Foley a further opportunity to advance potentially meritorious claims. The outstanding costs orders are for a significant amount and the bulk of unpaid amount has been outstanding for over four years. There is no adequate evidence of impecuniosity. Mr. Foley has received a significant indulgence from the court in allowing him a third chance to amend his statement of claim. Fairness requires action to restore respect for the integrity of court’s process while giving Mr Foley one last chance to demonstrate his compliance with court orders and to advance his claim. [36]

[73] I make the following order:

a. Mr. Foley’s action is stayed pursuant to rules 57.03(2) and 60.12;

b. Mr. Foley may not bring any further motions in the proceeding without my leave as case management judge, pursuant to rule 37.16;

c. The stay shall be lifted once Mr. Foley pays to the defendants in full:

i. The costs ordered by Lederer J. on March 16, 2020;

ii. The costs ordered by the Divisional Court (Swinton, Backhouse, Mandhane JJ.) on April 27, 2022;

iii. The costs ordered by me in these reasons for decision.

d. If the amounts listed above are not paid in full by August 30, 2024, Mr. Foley’s action shall be dismissed upon request to me by any defendant upon filing an affidavit certifying non-payment of any of the amounts ordered above to be paid;

e. If the amounts listed above are paid in full, Mr. Foley may deliver a fresh as amended statement of claim consistent with my reasons for decision on the motions to strike on or before September 30, 2024.

Robert Centa J.

Released: May 17, 2024