Court File and Parties

COURT FILE NO.: CV-16-548778 DATE: 20170605 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: DARREN ROSS NODDLE, Plaintiff AND: THE ATTORNEY GENERAL OF ONTARIO, MINISTER OF HEALTH and TODD LEVY, Defendants

BEFORE: Stinson J.

COUNSEL: Darren Ross Noddle, Plaintiff, acting in person Fatema Dada, for the Attorney General of Ontario Ryan MacIsaac, for Dr. Todd Levy

HEARD at Toronto: May 1, 2017

Endorsement

Introduction

[1] Darren Noddle is a former patient of Dr. Todd Levy. Mr. Noddle says that Dr. Levy negligently prescribed for him a prescription drug known as Aldara. Mr. Noddle asserts that Aldara caused him significant harm, including cognitive impairment and vision problems, which affect his ability to focus and comprehend written materials.

[2] Mr. Noddle has commenced a civil action against Dr. Levy, the Attorney General of Ontario (the AG) and the Minster of Health. As against the Province of Ontario, Mr. Noddle alleges that the Ontario Ministry of Health negligently approved the drug and failed to warn of certain side effects.

[3] In the present motion, Mr. Noddle seeks an order that publicly-funded counsel be appointed to represent him in his civil action against the various defendants. The AG submits that the Plaintiff’s motion should be dismissed.

The Positions of the Parties

[4] Mr. Noddle submits that his motion for publicly-funded counsel should be granted because he has been denied Legal Aid, cannot afford to retain a lawyer, and is unable to represent himself in these proceedings. He also states that it is important to proceed with this litigation in order to protect other Canadians who have been harmed, or might be harmed, by this drug.

[5] At the hearing of the motion, Mr. Noddle brought letters from Legal Aid Ontario indicating that he was not eligible for Legal Aid-funded services in this matter. Mr. Noddle also stated that he could not afford to retain a lawyer because he only receives a modest disability income and has several hundred thousand dollars in private debt. He is unable to represent himself in these proceedings because he has no legal training and cannot understand the rules of court.

[6] Mr. Noddle argues that his cognitive impairment and vision problems arose as a result his use of Aldara, and thus the reason for the lawsuit and his need for publicly-funded counsel to prosecute it are inter-connected. Mr. Noddle denies that he is a party under disability within the meaning of rule 1.03 and Rule 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 who would require a litigation guardian (who, in turn, would need to retain counsel under rule 7.05(3)). Rather, he seeks public funding to retain and instruct his own counsel to prosecute a claim against the government for the very harm caused by the government that makes this motion necessary.

[7] The AG submits that Mr. Noddle’s motion for publicly-funded counsel should be dismissed because courts grant such requests only where a person’s right under s. 7 of the Canadian Charter of Rights and Freedoms to “life, liberty and security of the person” is engaged, or their section 11 Charter rights upon being “charged with an offence” are engaged. The AG submits that none of these rights is engaged in this action and there is otherwise no statutory, common law, or constitutional entitlement to publicly-funded counsel for civil proceedings, particularly when the party has commenced such proceedings on their own initiative.

[8] The AG’s position is that since Mr. Noddle’s Charter rights are not engaged, he cannot meet the legal test for appointment of publicly-funded counsel set out in the case law: see R. v. Rowbotham (1988), 25 O.A.C. 321 (Ont. C.A.); New Brunswick (Minister of Health & Community Services) v. G. (J.), 1999 SCC 653, [1999] 3 S.C.R. 46, at para. 2. The AG also submits that the Plaintiff has not provided any evidence relevant to the test.

[9] Dr. Levy takes no position on the motion.

Analysis

[10] The case law relevant to this issue suggests that the authority of courts to order publicly-funded counsel is narrowly proscribed and should be exercised with care. In Christie v. British Columbia (Attorney General), 2007 SCC 21, [2007] 1 S.C.R. 873, at para. 27, the Supreme Court explained there is no “general constitutional right to counsel in proceedings before courts and tribunals dealing with rights and obligations.”

[11] Courts can and do issue orders for publicly-funded counsel in the context of criminal and child protection cases to protect parties’ Charter rights. Courts can also issue orders for “interim” or “advance” costs awards in civil proceedings, but only in rare and exceptional circumstances. This motion was argued primarily with reference to the case law arising in the criminal law and child protection context. I will deal with that line of cases first.

[12] In Rowbotham, the Court of Appeal recognized that the Charter entitles a criminal accused to publicly-funded counsel in certain circumstances in order to uphold their fair trial rights under sections 7 and 11 of the Charter: In particular, an accused person is entitled to an order for publicly-funded counsel if they meet the following three-part test: (1) the applicant has been refused legal aid; (2) the applicant “lacks the means to employ counsel”; and (3) legal representation of the applicant is “essential to a fair trial”. See Rowbotham at para. 194.

[13] Additionally, the Supreme Court has held that the Charter entitles parents facing “state removal of a child from parental custody” to publicly-funded counsel in certain circumstances in order to protect their right to psychological integrity under section 7 of the Charter: see New Brunswick v. G.(J.), at para. 61. In that case the Supreme Court explained (at para. 2) that:

When government action triggers a hearing in which the interests protected by s. 7 of the Canadian Charter of Rights and Freedoms are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair. In some circumstances, depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the government may be required to provide an indigent parent with state-funded counsel.

[14] Finally, the Supreme Court has held that a party to civil proceedings may be entitled to an “interim” or “advance” costs award if the party meets the three factors of (1) impecuniosity, (2) a prima facie meritorious case, and (3) special circumstances: see British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, 233 D.L.R. (4th) 577, at para. 40. Such costs awards are only available in “rare and exceptional circumstance”: Okanagan, at para. 1. As the Supreme Court stated in Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs & Revenue Agency), 2007 SCC 2, 275 D.L.R. (4th) 1 (at para. 39): “the injustice that would arise if the application is not granted must relate both to the individual applicant and to the public at large. This means that a litigant whose case, however compelling it may be, is of interest only to the litigant will be denied an advance costs award.”

[15] For the reasons set out below, I conclude that Mr. Noddle’s case does not meet the established tests for entitlement to publicly-funded counsel.

[16] First, although Mr. Noddle referenced his s. 7 Charter rights at the hearing and in his written materials, he has brought a civil action against the Ontario government and his personal physician complaining of negligence. His Charter rights are not engaged in the civil action. As the Court of Appeal explained in Rogers v. Faught (2002), 2002 ONCA 19268, 159 O.A.C. 79, at para. 34,

Section. 7 of the Charter does not embrace the right to bring an action for the recovery of damages for personal injury. A civil action is economic and proprietary in nature and as such outside the range of interests protected by s. 7 [authority omitted].

[17] In this civil action, Mr. Noddle is not subject to government action that has triggered a hearing involving his Charter-protected interests. For example, he is not facing criminal charges in this proceeding. Rather, he has chosen to commence civil proceedings against the Ontario government and his former doctor. As Conway J. put it in Harrison v. Ontario, 2010 ONSC 2082, [2010] O.J. No. 2082, at para. 4 (Ont. S.C.): “These are his actions -- they were not initiated by the state.” Rowbotham and New Brunswick v. G.(J.) allow courts to order publicly-funded counsel only where a litigant’s Charter-protected interests are at stake. In my view, Mr. Noddle does not have any Charter-protected interests at stake in this civil action. He therefore cannot meet the test set out in those decisions for an order granting him publicly-funded counsel to protect his Charter rights.

[18] I turn now to consider whether Mr. Noddle can meet the test established by the case law for an advance costs award.

[19] One of the prerequisites for an advance costs order is that “no other realistic option exists for bringing the issues to trial”: Okanagan, at para. 40. At the hearing of this motion, Mr. Noddle brought several letters from Legal Aid Ontario which indicated that he has been denied Legal Aid for his civil action. Although these letters were not in evidence, and although Mr. Noddle could have further appealed the denial, counsel for the AG acknowledged at the hearing that a Legal Aid certificate would not be available. As well, Mr. Noddle did not provide documentation regarding his income and assets, other than one ODSP cheque he brought to the hearing. For the purposes of this motion, I will assume that Mr. Noddle could not personally fund this litigation. This may have been sufficient to pass the first two prongs of the Rowbotham test.

[20] However, in the civil litigation context, a party who requests an advance costs award must also show “that an attempt, albeit unsuccessful, has been made to obtain private funding through fundraising campaigns, loan applications, contingency fee agreements and any other available options.” See Little Sisters (at para 40). Mr. Noddle asserted at the hearing that he has approached many lawyers who have declined to take his case although he did not provide any evidence of these or other interactions with private lawyers. I am nonetheless prepared to assume that he has been unable to find a lawyer who is prepared to act for him on the basis of a contingency fee retainer.

[21] Mr. Noddle asserts that thousands of other Canadians have been harmed by Aldara. Assuming this is so, one would expect that such a phenomenon would likely result in litigation under the Class Proceedings Act, 1992, S.O. 1992, c. 6, or its equivalent in another province. At the very least, Mr. Noddle could have approached law firms with expertise in class actions and attempted to start a class proceeding. There is no evidence that he did so. I find that there is insufficient evidence to establish that there is no other realistic option for bringing these issues to trial.

[22] The fact that there is no known Aldara-patient class proceeding in Ontario or Canada, also suggests another conclusion, namely, that there is good reason to doubt that Mr. Noddle’s case meets the second criterion in Okanagan, a prima facie meritorious case. I accept that, unfortunately, Mr. Noddle has experienced some adverse health problems subsequent to using Aldara. That does not by itself point to the drug as being the cause of his problems, and there is no evidence to suggest it was. There is also no reliable evidence before me to suggest that either the doctor or the Ministry of Health was somehow negligent in prescribing or approving the drug for use. This test for an advance costs order is therefore not met.

[23] Additionally, a party who seeks an advance costs order must demonstrate that “[t]he issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases”: Okanagan, at para. 40. In other words, it must be in the public interest to address the issues raised in the litigation regardless of the outcome of the case. It is not sufficient to say that the public interest would be served if this action revealed government negligence. The legal issues raised in this civil action are not novel. There is well-established case law on medical negligence and the reviewability of government decisions. I do not think that the present case raises broader issues that have not been resolved in previous cases.

Conclusion and Disposition

[24] As the above analysis shows, Mr. Noddle’s case does not meet any of the tests for making an order for publicly-funded counsel. His request must therefore be denied.

Stinson J. Date: June 5, 2017