CV-18-00592072-0000
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
Ken J. Berger, 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
HEARD: November 14 and 15, 2023
Robert CentA J.
Introduction
1The 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.
2In 2018, he commenced this action. Mr. Foley alleges that each of the defendants is liable to him for breaches of 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 alleges are owed to him. He seeks $20 million in Charter damages, $3 million in punitive damages, and a significant number of declarations.
3Mr. Foley has already amended the statement of claim twice. The current version of the statement of claim spans 59 pages and well over 124 paragraphs. It asserts a significant number of causes of action, but often fails to plead the material facts necessary to make out those causes of action. It is sometimes difficult to understand which defendant, much less which individual, is responsible for the conduct Mr. Foley seeks to challenge. In my view, Mr. Foley’s core claims can be best organized as follows:
a. Mr. Foley alleges that he has been badly mistreated by medical practitioners, medical staff, and the administration of the defendant London Health Sciences Centre. Among other allegations, Mr. Foley pleads that the hospital deliberately withheld food and water from him for a week, and pressured him to elect medical assistance in dying.
b. Mr. Foley alleges that the defendant South West Local Health Integration Network discriminated against him when processing his requests for certain types of funding. He also asserts that SW LHIN unlawfully billed him for medically necessary services, and pressured him to elect medical assistance in dying.
c. Mr. Foley alleges that the defendant Centre for Independent Living in Toronto discriminated against him in 2016 when processing his application for self-directed funding.
d. Mr. Foley alleges that the medical assistance in dying (MAID) provisions of the Criminal Code, as well as several pieces of provincial legislation, are unconstitutional.
e. Mr. Foley alleges that the defendants the Attorney General of Canada, the Attorney General of Ontario, and His Majesty the King in Right of Ontario are 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.
4For the reasons that follow, I strike out the current version of Mr. Foley’s statement of claim in its entirety. In its current form, the statement of claim badly violates the rules of pleading. It fails to plead material facts in support of the causes of action it asserts. It asserts causes of action that have no reasonable prospect of success or are unknown to law. It does not permit each defendant to know what it is alleged to have done wrong. It is prolix and inflammatory. It would make the discovery process unmanageable.
5As I will explain below, Mr. Foley’s statement of claim also rests upon a series of untenable legal propositions. First, much of the statement of claim rests upon the proposition that the Charter requires governments to provide a certain level of health care or social benefits beyond those currently provided. In my view, the law of Canada is clear, and the Constitution confers no such right. Second, much of the statement of claim proceeds on the basis that the Supreme Court of Canada’s decision in Carter v. Canada is not binding on this court.1 Mr. Foley asserts 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 submits 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.” In my view, it is not open to Mr. Foley to mount a collateral attack on the decision in Carter, which is binding upon me.
6Mr. Foley would prefer that the federal government eliminate the medical assistance in dying provisions from the Criminal Code. Mr. Foley would prefer that the federal and provincial governments increase funding to the health care system and provide a wider range of health care and social benefit options for people with serious disabilities. The court cannot adjudicate those policy preferences.
7For the reasons set out below, I do 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 also dismiss the action against the Attorneys General and His Majesty in Right of Ontario.
8Subject to terms, I grant Mr. Foley leave to amend his statement of claim against the remaining defendants, being the hospital, SW LHIN, and CILT.
The parties
9Mr. Foley is a 48-year-old man who lives with medical conditions that significantly limit his mobility. In 2009, his illness required him to leave his Toronto-based employment and he moved to London, Ontario. He currently requires substantial assistance with the routine activities of daily living, including eating, taking his medication, grooming, and bathing. He has full mental capacity and is able to use a variety of forms of technology.
10On November 3, 2015, Mr. Foley was admitted to the defendant London Health Sciences Centre.2 On December 2, 2015, the hospital discharged him to his residence where he received in-home care services. The hospital readmitted Mr. Foley on February 3, 2016, and he has remained an in-patient at the hospital since that time.
11The defendant South West Local Health Integration Network is a Crown agency that provides local health care services to persons in their homes or in the community.3 SW LHIN, or its predecessors, facilitated home care for Mr. Foley from 2010 until he was admitted to hospital. In March 2016, Mr. Foley contacted SW LHIN to inquire about self-directed funding, which would allow him to employ agency workers of his own choosing and to manage his care schedule. SW LHIN directed Mr. Foley to make this request to the defendant the Centre for Independent Living in Toronto. Mr. Foley alleges that SW LHIN is liable to him for damages for failing to offer him self-directed funding in response to his request of March 15, 2016, and, instead, directing him to apply to CILT. Mr. Foley seeks Charter, public law, and private law damages from SW LHIN.
12The defendant CILT is a non-profit organization that administered Mr. Foley’s application for direct funding of self-managed attendant services in 2016 and 2017. In February 2017, CILT advised Mr. Foley that he was not eligible for direct funding. Mr. Foley seeks Charter and other damages against CILT for violation of his rights.
13The Attorney General for Ontario is named as a defendant, according to the statement of claim, “because a declaration is being sought that provincial legislation is unconstitutional.” His Majesty the King in Right of Ontario is named as a defendant, according to the statement of claim, because “the Crown, through and with its agents, servants, and employees was responsible for the planning, administration, funding and provision of health care and home and community services, and direct funding in Ontario.” Mr. Foley seeks Charter and other damages from the Ontario defendants in addition to his claim for declarations that certain provincial legislation is unconstitutional.
14The Attorney General of Canada is named as a defendant, according to the statement of claim, because the Attorney General of Canada is “responsible for overseeing the criminal justice system in Canada and legislating the medical assistance in dying” provisions of the Criminal Code. Mr. Foley seeks Charter and other damages against the Attorney General for Canada.
The statement of claim
15Mr. Foley has commenced two actions that largely overlap with each other.
16On February 18, 2018, Mr. Foley issued a statement of claim in his first action against the defendants.4 Mr. Foley discontinued that claim against the Ontario defendants, but not the other defendants. None of the remaining defendants have defended the first action. I will address the status of the first action at the end of these reasons.
17On August 22, 2018, Mr. Foley commenced a second action.5 Mr. Foley amended the statement of claim in the second action on May 21, 2021, and again on December 18, 2021. The defendants’ motions to strike relate to the December 18, 2021, version of the statement of claim.
18The statement of claim asserts many causes of action against the defendants and seeks almost as many forms of relief. I will organize them as follows:
a. Mr. Foley asserts that each defendant has violated his rights under sections 7, 12, and 15 of the Charter. To remedy these violations, Mr. Foley seeks $20 million in damages and declaratory relief;
b. Mr. Foley asserts that he is entitled to “damages for cruel and inhuman and degrading treatment, persecution of vulnerable persons with disabilities and crimes against humanity” against all defendants;
c. Mr. Foley asserts that he is entitled to damages in an unspecified amount from the defendants for “breach of the duty of good faith, improper conduct, abuse of power and bad faith”;
d. Mr. Foley sees a declaration that the medical assistance in dying provisions of the Criminal Code violate sections 7, 12, and 15 of the Charter and are of no force and effect;
e. Mr. Foley seeks declarations that “Ontario’s Patient’s [sic] First Act, 2016, S.O. 2016, c. 30 and related Regulation O. Reg. 386/99 under the Home Care and Community Services Act, 1994, S.O. 1994, c. 26 section 28.5(1) and Ontario Regulation 438/17 under the HCCSA amending O. Reg. 386/99, and Ontario Regulation 367/94 under the Ministry of Community and Social Services Act, R.S.O. 1990, c. M.20…and the Connecting People to Home and Community Care Act, 2020 (CPHCCA) and accompanying Regulation” violate sections 7, 12, and 15 of the Charter and are of no force and effect; and
f. Mr. Foley seeks a declaration that “Ontario’s restructuring of the delivery of home and community care services, which take effect April 1, 2021, continues to delay and limit disabled individuals’ access to services. The integration measures will take years to implement and will impede access to healthcare services and compound suffering.”
Principles on motion to strike out a claim
19Each defendant has brought a motion under rule 21.01(1)(b), which allows a defendant to move before a judge to strike out a statement of claim on the ground that it discloses no reasonable cause of action.
20The proper approach on a rule 21.01(1)(b) motion is well settled.6 I am to take the facts asserted in the statement of claim as true unless they are patently incapable of proof or are merely bald conclusory statements of fact, unsupported by material facts.7 I am to read the statement of claim generously. The ultimate question is whether it is plain and obvious, assuming the facts pleaded to be true, that each of the pleaded claims discloses no reasonable cause of action. This is true where:
a. the allegations do not give rise to a cause of action;
b. the plaintiff fails to plead a necessary element of a cause of action; or
c. the allegations in the pleading are conjecture, assumptions, or speculation unsupported by material facts.
21This is a stringent test, and the moving party must satisfy a very high threshold.8 Mr. Foley, however, may not simply plead bald conclusions. If Mr. Foley’s claim has no reasonable prospect of success, if it is plain and obvious that his action cannot succeed, it should not be allowed to proceed to trial.
22In addition, each of the defendants moved to strike out the statement of claim under rules 21.01(3)(d), 25.06, and 25.11.
23Mr. Foley’s statement of claim is 59 pages long. It fails to distinguish meaningfully between the actions taken by each defendant.9 It makes very serious allegations in the form of bare conclusions, without pleading material facts to support those allegations.10 There is significant merit to the defendants’ complaints under rules 21.01(3)(d), 25.06, and 25.11. These flaws might justify an order striking the statement of claim in its entirety on this basis alone, with leave to amend. In my view, however, these concerns are all secondary to the more important issue regarding whether or not Mr. Foley’s claim should be struck out as disclosing no reasonable cause of action.
24No evidence is admissible on a motion under rule 21.01(1)(b).11 Mr. Foley filed a responding motion record. Some of the documents in his responding motion record are unobjectionable, including the statement of claim, documents referred to in the statement of claim, and prior endorsements in the action. Some documents, however, should not have been included. These include the following:
a. A letter dated May 14, 2018, from counsel for Mr. Foley to the Minister of Justice and Attorney General for Canada demanding “an immediate moratorium on all future assisted death cases in Canada” and that she “conduct an immediate public inquiry” on all cases involving medical assistance in dying.
b. The response from the Minister of Justice and Attorney General for Canada declining to take the steps requested by counsel.
c. A letter dated August 7, 2019, from the Special Rapporteur on the rights of persons with disabilities and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health that purports to provide “information that we have received concerning the allegations” of Mr. Foley.
d. A letter dated December 12, 2019, from the Registrar of the Supreme Court of Canada declining to accept Mr. Foley’s motion for a re-hearing of the Carter appeal because he was not a party to the appeal and the motion was well out of time.
25Moreover, these documents were not exhibited to an affidavit, they were simply included behind tabs in the responding motion record.
26In addition, Mr. Foley’s factum was replete with links to documents that should have formed no part of the material before me on this motion. One link led to an article in the magazine The Nation, another to a Tweet that attached an audio recording, another to an .mp4 file containing a video clip, another to the website of a major media outlet, and another to the website of the Collège des Médecins du Québec. None of this evidence was admissible on a rule 21.01(1)(b) motion. Even if evidence was admissible on this motion, Mr. Foley did not properly place this evidence before the court.
27The final, and most troubling, breach of rule 21.01(2) is found in the section of Mr. Foley’s 74-page factum titled “The Attorney General participated in the staging and rigging of Court proceeding [sic] in Carter, Lamb, and Truchon.” In this section, Mr. Foley casts aspersions on the integrity and conduct of an astonishing number of people including Ms. Carter, Mr. Truchon, Smith J., McLachlin C.J.C., Baudouin J., and Attorneys General Jody Wilson-Raybould and David Lametti. He also devotes pages in his factum to the alleged role of the Trudeau Foundation in issues related to medical assistance in dying and his disagreement with the conduct of the Prime Minister and the federal cabinet on matters that have nothing to do with the issues in his statement of claim.
28These submissions were irrelevant and attempted to pour in a vast amount of information that had no place before the court on a rule 21.01(1)(b) motion. These submissions also betray the fundamentally political nature of many of Mr. Foley’s complaints. The choices Mr. Foley has made about how to conduct this litigation are relevant both to my determination of whether or not to grant him leave to amend his claim and to the terms that I may impose on any such amendments.
The common issues
29It will be most efficient to first address some overarching problems with Mr. Foley’s statement of claim. Determining these overarching issues will clear the way to take a more careful look at the particular allegations made about the conduct of each defendant.
The Supreme Court decision in Carter is binding, legitimate, and must be followed
30In his statement of claim, Mr. Foley does not accept the binding authority of the Carter decision. I will first describe the decision in Carter, then explain why I do not accept Mr. Foley’s submissions. I will then explain how the decision in Carter makes it plain and obvious that parts of Mr. Foley’s statement of claim cannot succeed.
The decision in Carter
31In 2015, the Supreme Court of Canada struck down portions of the Criminal Code that prohibited assisted suicide.12 In doing so, the Court revisited its earlier decision in Rodriguez.13
[32] In Carter, the Court concluded that the Criminal Code prohibition on physician-assisted dying infringed the rights claimants’ s. 7 Charter right to liberty and security of the person, and it did so in a manner that was overbroad and not in accordance with the principles of fundamental justice. The Court held that an individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The law allowed people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denied them the right to request a physician’s assistance in dying. The Criminal Code interfered with the ability of people to make decisions concerning their bodily integrity and medical care and, therefore, interfered with their liberty interest. By leaving certain people to endure intolerable suffering, the Criminal Code interfered with their security of the person.
33The Court also concluded that the Criminal Code’s prohibition on assisted dying was overbroad. The object of the law was to protect vulnerable persons from being induced to commit suicide at a moment of weakness, but the blanket prohibition caught conduct that was unrelated to the law’s objective. The absolute prohibition on physician-assisted dying, with its heavy impact on the claimants’ s. 7 rights to liberty and security of the person, was not the least drastic means of achieving the legislative objective. The Court, therefore, struck down the Criminal Code prohibitions.
34In response to the Carter decision, Parliament enacted Bill C-14, which amended the Criminal Code to permit medical assistance in dying. On March 17, 2021, the provisions were amended to address situations where the person’s natural death was not reasonably foreseeable. Parliament made these amendments in response to the decision of the Quebec Superior Court in Truchon.14
Mr. Foley’s challenge to Carter
35In his statement of claim, Mr. Foley does not accept the binding authority of the Carter decision and seeks to mount a collateral attack on Carter and the legal process that led to that decision. In his factum on the motion, Mr. Foley summarizes his argument as follows:
… Mr. [Foley’s] rights to natural justice have been compromised by the illegitimate and tainted decisions in both Carter and Truchon that bring the administration of justice into serious disrepute.
Neither Carter nor Truchon, which led to amendment to the Criminal Code in Bill C-14 and C-7, was decided properly by an impartial court. The cases were staged, fixed and corrupt, and cannot be considered against Mr. Foley. Mr. Foley has all the evidence to prove it in research he did to protect his own life and none of it good.
The Attorney General actively participated in the staging and rigging of proceedings and subsequent litigation….
The Attorney General colluded with the plaintiff in the [Lamb] case…15
The plaintiffs and their lawyers in Truchon and Carter had the trial judges in their pockets and the proceedings were entirely corrupt. This same perversion of justice happened in the Supreme Court of Canada in Carter.
The Supreme Court's decision in Carter was compromised by conflicts of interest that violated Domestic and International Judicial Conduct Principals which resulted in actual bias and illegitimate decisions at both the trial level and the Supreme court level. Former Justices Lynn Smith and Beverley McLachlin intentionally violated Judicial Conduct Principles in order to fix and stage a predetermined outcome in Carter. Carter's trial judge and Chief Justice were not impartial and had several severe conflicts of interest. Both should have recused themselves. The Attorney Generals failed to file a recusal motions.16 …
36Mr. Foley also attacks the litigation process that led to the decision in Carter. First, Mr. Foley pleads that the Attorney General for Canada called witnesses to undermine its own case, that the judges of the Supreme Court of Canada who heard the case had conflicts of interest and have decided to “profit” from their decisions, and that the Supreme Court is a political body with free reign to set public policy based on the personal views of the “conflicted jurists.” For example, in paragraph 119(a) of his statement of claim, Mr. Foley pleads as follows:
(xvi) The Attorney General knowingly called an expert witness in litigation to help the opposing party, and have not advocated to protect vulnerable disabled Canadians and knew that there was the appearance of conflicts of interest by the judiciary and by partisan experts and advocates acting in Carter, and/or Truchon but did not take any steps to protect the rule of law and protect the integrity of the proceedings, and have not apparently made any regulations to protect the rule of law from judges who decided Carter profiting from their ruling and spreading propaganda about the safety of MAID and advocating for its continued sliding practice in books they write after leaving public office and by doing so have breached the Rules of Natural Justice for Mr. Foley and others similarly situated leaving them as casualties of their improper conduct to undermine the rule of law in Canada and the protection of vulnerable and disabled citizens who rely on the Attorney General to protect them and protect the rule of law.
(xvii) The Attorney General inaction in not disclosing the appearance of conflicts of interest in the legal [proceedings] in Carter and Truchon resulted in serious miscarriages of justice, illegitimate court ruling and mistrials to be used to abuse and expose Mr. Foley and other similarly situated persons to an increased risk of wrongful deaths.
(xviii) The Attorney General basic duty is to uphold the rule of law in judicial proceeding and they failed to protect the rule of law by not taking any steps to advise the court of the conflicts that undermined the integrity of Carter and Truchon leaving no one to advocate for vulnerable disabled persons and protect their rights.
(xix) The Attorney General actions have undermined Judicial Independence and the Rule of Law by allowing the court to be a political body that has free reign to set public policy based on the inclinations of the conflicted jurists on a matters of life and death, in Carter and Truchon, and by not appealing Truchon, the Attorney General despite judicial precedents, is not performing its duty to protect the rule of law and protecting vulnerable disabled citizens as the [Attorney] General are making decisions based on politics and ideology rather than its job and duty to protect the rule of law and most of all, protect vulnerable citizens.
(xx) As a result of the wrongful conduct by the Attorney General in Carter and Truchon, Mr. Foley rights to Procedural Fairness and Natural Justice require that he has his day in court so that he can take steps to remove any impact of conflicted jurists decisions and make sure that justice is done and seen to be done, and the rule of law is complied with through a fair and impartial trial, so that there is no risk of wrongful death and serious deprivations of his Charter rights and illegitimate decision get corrected to protect the rule of law and the court learns of the consequences of what the Attorney General allowed to happen to Mr. Foley and other similarly situated persons based on an abdication of their role of the Attorney General to the rule of law and protection of vulnerable groups including disabled person where there is no advocate for them as a party other than the Attorney General.
Carter is binding and Mr. Foley’s statement of claim is, in part, an abuse of process
37I find that it is plain and obvious that Mr. Foley’s pleaded claims relating to the Carter and Truchon decisions disclose no reasonable cause of action and have no reasonable prospect of success.17 This portion of Mr. Foley’s claim cannot succeed because it is an abuse of process.
38The doctrine of abuse of process prevents the misuse of the court’s procedure in a way that would bring the administration of justice into disrepute:
The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel.18
39The court can apply the doctrine of abuse of process on a pleadings motion like this one.19 This aspect of the statement of claim is an abuse of process in several ways.
40First, it is a form of collateral attack on Carter and Truchon. A collateral attack is one where a party seeks to challenge the effect of a court order by challenging its validity in the wrong forum. The policy behind the rule is also to maintain the rule of law and to preserve the repute of the administration of justice.20 Mr. Foley cannot attack the correctness of the Carter or Truchon decisions in this case, a separate civil proceeding.
41Second, the various grounds asserted by Mr. Foley would bring the administration of justice into disrepute. It is a clear abuse of process to use this civil action to attack the integrity and impartiality of judges of the Supreme Court of Canada and various superior courts across the country for their alleged conduct in other proceedings. It is a clear abuse of process to attack the litigation decisions made by the Attorney General for Canada in subsequent and unrelated proceedings.
42In my view, this aspect of Mr. Foley’s claim has no reasonable prospect of success. I strike out paragraphs 119(a) (xv) to (xxi) of the statement of claim.
43Leave to amend a claim should be denied only in the clearest of cases.21 While a party should not be given unlimited scope to amend its pleading, the court is reluctant to deprive plaintiffs of an opportunity to remedy a deficient pleading.22 This is particularly true where there is no evidence of harm to the defendants if leave to amend is granted and an amendment could cure the deficiency.23 On the other hand, where the challenged paragraphs are scandalous, frivolous or vexatious, a court is not required to grant leave to amend.24
44In my view, this is a clear case where leave to amend should be denied. Mr. Foley has amended his claim twice already. Mr. Foley’s attack on the correctness of Carter or Truchon, and the conduct of the judges and the Attorney General in those cases, will remain an abuse of process regardless of any further amendments he might make. Moreover, for the reasons set out in paragraphs [27] and [28], the manner in which Mr. Foley has advanced his claim convinces me that no further amendments to this particular claim should be permitted.
45In addition to striking those paragraphs of the statement of claim, I do not accept Mr. Foley’s assertion, which underpins much of the statement of claim and animated both his factum and his oral submissions, that Carter is an illegitimate decision or that I should approach this case as if Rodriguez is still the law of Canada on medical assistance in death.
Section 7 of the Charter does not create a freestanding right to health care
46Many of the allegations in Mr. Foley’s statement of claim are predicated on there being a freestanding right to health care under s. 7 of the Charter. These claims have no reasonable prospect of success and should be struck out without leave to amend.
47The jurisprudence is clear that s. 7 of the Charter does not confer a constitutional right to a certain level of funding for health or social benefits.25 Section 7 restricts the ability of the state to deprive people of their right to life, liberty, and security of the person. Section 7 does not place a positive obligation on the state to ensure that each person enjoys a particular standard of life, liberty, or security of the person, including where the government previously offered a certain level or kind of service or funding to eligible persons and subsequently reduces or changes the benefit.26 Section 7 does not oblige the state to provide a certain level of funding for services, if the state chooses to provide those services. As the Divisional Court recently held:
It is well-established that the protection offered by s. 7 does not “include and require provision for the economic satisfaction of basic human needs.” Nor does it include a right to access services that the state does not publicly fund. Where the state chooses to provide a service, s. 7 does not impose a required level: “[n]othing in the existing jurisprudence suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty, and security of the person. Rather, s. 7 has been interpreted as restricting the state's ability to deprive people of these.”27
48Mr. Foley’s reliance on Chaoulli is misplaced.28 The rights claimants in Chaoulli did not seek an order requiring the government to spend more money on health care or to fund the expense of their own private health care. The rights claimants in that case challenged a state prohibition on them spending their own money on private health insurance. The Supreme Court agreed and held that a state prohibition on obtaining private medical insurance, when combined with the significant delays in the public health care system, breached s. 7 and was not saved by s. 1. Chaoulli does not stand for the proposition that the state is required to provide publicly funded health care services to a particular standard. Indeed, in Chaoulli the Supreme Court of Canada categorically stated that “The Charter does not confer a freestanding right to health care.”29
49Courts have repeatedly rejected claims by applicants seeking more or different government provided funding, social, or health services. For example, in Flora, the Court of Appeal for Ontario upheld the province’s decision not to reimburse a citizen for a life-saving liver transplant he received outside of Canada, despite the undisputed fact that the treatment was required to save the applicant’s life and was not available in Ontario.30 Section 7 does not protect a right to economic benefits, even where they will save a life. The Court of Appeal held:
In my view, on the current state of s. 7 constitutional jurisprudence, where -- as here -- the government elects to provide a financial benefit that is not otherwise required by law, legislative limitations on the scope of the financial benefit provided do not violate s. 7. On the law at present, the reach of s. 7 does not extend to the imposition of a positive constitutional obligation on the Ontario government to fund out-of-country medical treatments even where the treatment in question proves to be life-saving in nature.31
[50] Courts have taken the same approach to the provision of social services other than health care. For example, the Court of Appeal for Ontario struck out a s. 7 Charter challenge based on the wait time for applied behaviour analysis services and the alleged lack of those services in public school settings for school-aged children with autism because it had no reasonable prospect of success.32
51Many parts of Mr. Foley’s statement of claim are based on a Charter right to health care and, therefore, cannot succeed:
a. With respect to the Attorney General for Canada, Mr. Foley pleads that there is a “Constitutional protected right…to ensure that there is legislation that ensures proper health care is being provided to vulnerable persons who are suffering…” He also pleads that the defendants “failed to provide Mr. Foley with a care option that would relieve his suffering and promote his wellness, independence, and dignity in the hospital and in the community.” Mr. Foley pleads that his s. 7 Charter rights were breached by the defendants when they failed “to ensure an adequate standard of care and safeguards to protect his security of the person and physical and psychological integrity.” I find all such claims have no reasonable prospect of success and I strike out paragraphs 25, 79, 84, 85, 87, 89, and 96 of the statement of claim.
b. Mr. Foley’s pleadings with respect to the Attorney General of Ontario and His Majesty the King in Right of Ontario are quite similar and it is convenient to address them at the same time. Mr. Foley pleads that the Ontario defendants are liable in damages for failing to provide medically necessary services, or to provide care at a sufficiently high level of service, or to improve the service to Mr. Foley’s benefit. I find all such claims have no reasonable prospect of success and I strike out the following paragraphs of the statement of claim:119(b)(iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), and 119(c)(iv), (v), (vi), (vii), (viii), (ix), (x), (xi), and (xii).
c. Mr. Foley pleads that the SW LHIN failed to provide him with a constitutionally mandated level of health care services in hospital, in the community, and in his home. I find that all of these claims have no reasonable prospect of success and I strike out the following paragraphs of the statement of claim: 119(d)(ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv), (xv), (xvi).
d. Mr. Foley raises a Charter claim against CILT in only one paragraph of his claim. For the reasons set out above, I find that paragraph 119(f)(x) of the statement of claim should also be struck out.
52I do not grant leave to Mr. Foley to further amend his statement of claim to plead a right to health care under s. 7 of the Charter. Mr. Foley has amended his claim twice already and did not provide a draft revised pleading that addresses the concerns raised by the defendants. Moreover, given the state of the law, there are no amendments that can cure these deficiencies. Appellate courts have considered, and rejected, similar claims many times. I am bound by those decisions. Mr. Foley has strong and honestly held views about the health care system. The court, however, is not the forum in which Mr. Foley may advance his policy objectives. I do not grant leave to Mr. Foley to amend with his s. 7 claims against the Attorney General for Canada, the Ontario defendants, SW LHIN, or the CILT.
53Mr. Foley also pleads that the hospital failed to provide him with an appropriate level of care, which violated his rights under s. 7 of the Charter. Unlike all of the other defendants, the hospital has and continues to provide direct medical care to Mr. Foley. For reasons explained starting at paragraph [180], I would not strike the s. 7 Charter claims against the hospital.
Section 24(1) of the Charter does not create rights, it is a mechanism to obtain a remedy
54In many paragraphs of his statement of claim, Mr. Foley asserts that the defendants failed to provide certain benefits “pursuant to s. 24(1) of the Charter.” For example, in paragraph 119(e), Mr. Foley pleads as follows “as against [the hospital]”
(ii) Failure to provide the plaintiff with a medically necessary service, which would relieve his intolerable suffering and allow him to maintain his dignity, independence and quality of life forcing him to assisted dying pursuant to section 24(1) of the Charter;
(iii) Failure to provide the plaintiff with safe hospital care and ensure safe community care in the circumstances giving him only the option of assisted dying pursuant to section 24(1) of the Charter;
(iv) Failure to ensure a quality of care for the plaintiff’s hospital care and home care to relieve his suffering giving him the only option of assisted dying pursuant to section 24(1) of the Charter;
(v) Failure to prevent the plaintiff from suffering physical and psychological harm as a result of inadequate hospital care giving him the only option of assisted dying pursuant to section 24(1) of the Charter;
(vi) Failure to ensure a quality of care for the plaintiff’s hospital care and instead providing him with the only option of assisted dying pursuant to section 24(1) of the Charter;
55Section 24(1) of the Charter is a remedial provision. It reads as follows:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
56The purpose of section 24 is the enforcement of the rights and freedoms guaranteed by the other sections of the Charter.33 It provides a mechanism for individuals whose rights under the Charter have been infringed or denied to obtain a remedy.34 Section 24(1) establishes the right to a remedy as the foundation stone for the enforcement of Charter rights. Section 24 is an enforcement mechanism, but it does not confer rights other than the right to an effective and meaningful constitutional remedy.35
57In many places in his statement of claim, Mr. Foley properly seeks a remedy under s. 24(1). In many other places, Mr. Foley’s pleading suggests that s. 24(1) is the source of a right that is guaranteed under the Charter. In my view, it is plain and obvious that those claims cannot succeed and that no amendments can cure these deficiencies. For that reason, I would strike out paragraphs 119(a)(vi), (viii), 119(b)(ii), (v), (vi) to (xi), 119(c)(ii), (v) to (xi), (xiii), 119(d) (ii) to (xvii), 119(e)(ii) to (x), without leave to amend, except that he may plead breaches of his substantive Charter rights only as otherwise permitted by these reasons.
The claims for breach of section 12 of the Charter have no reasonable prospect of success
[58] Mr. Foley pleads that the defendants have breached his s. 12 Charter rights. For the reasons that follow, these claims have no reasonable prospect of success.
59Section 12 of the Charter reads as follows: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” To make out a claim for a breach of s. 12, Mr. Foley must plead that the challenged measure is:
a. treatment or punishment by a government actor; and
b. that the treatment or punishment is cruel and unusual in that it is “so excessive as to outrage standards of decency” and is “abhorrent or intolerable to society.”36
60Section 12 is mainly concerned with criminal and penal proceedings and its protections are not engaged in this case. For something to constitute punishment, Mr. Foley must plead that the state action:
(1) . . . is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) . . . is imposed in furtherance of the purpose and principles of sentencing, or (3) . . . has a significant impact on an offender’s liberty or security interests.37
61It is plain and obvious that none of the defendants subjected Mr. Foley to punishment within the meaning of s. 12 of the Charter.
62For something to constitute “treatment” for the purposes of s. 12, there must be some active state process in operation, involving an exercise of state control over the individual, in order for the state action in question” to constitute treatment within the meaning of s. 12.38 Mr. Foley’s primary pleading with respect to treatment is as follows:
The treatment that Mr. Foley has endured by the defendants - both in his home and at the hospital - constitutes degrading treatment contrary to section 12 of the Charter.
Forcing a discharge of Mr. Foley, a vulnerable, disabled person, into an unsafe and poor quality care environment, denying proper care and providing him with the only option as assisted dying is cruel and unusual punishment, violating standards of decency and shocking the conscience of the community; it is grossly disproportionate.
Depriving Mr. Foley of essential healthcare and homecare and community services has put the life of Mr. Foley, a vulnerable, disadvantaged and disabled member of society, at risk, constituting cruel and unusual treatment.
Failing to provide necessities of life to a person suffering with a disability is cruel and unusual punishment and a form of inhumane torture.
63Mr. Foley submits that it is not plain and obvious that this claim will fail. He relies on Canadian Doctors for Refugee Care v. Canada in support of his submission.39 In my view, this case does not assist Mr. Foley.
64In Canadian Doctors, the Federal Court held that Canada violated the s. 12 rights of certain categories of refugee claimants when it withdrew their healthcare coverage. The court found that Canada had specifically designed and implemented these measures to encourage unsuccessful refugee claimants to leave the country as soon as possible. The court found that Canada was denying the unsuccessful refugee claimants health benefits that were provided to other refugee claimants, permanent residents, and temporary foreign workers. In this case, Mr. Foley is seeking to obtain funding and health services that are not currently provided to other similarly situated people. Mr. Foley has not pleaded any facts that would bring his case within the ambit of Canadian Doctors.
65In Canadian Doctors, the court emphasized that it was the government’s intentional targeting of a vulnerable and identifiable group by removing benefits to which they would otherwise be entitled that removed the case from “the usual situation involving the assigning of priorities and the drawing of lines by government in relation to the availability of social benefit programs.”40 Again, Mr. Foley has not pleaded any facts to suggest that any defendant has targeted him by removing benefits to which is he is otherwise entitled.
66Mr. Foley also analogizes his situation as a patient in the hospital to the situation faced by inmates facing administrative segregation while living with a serious mental illness.41 In my view, there is no meaningful comparison between the two situations. To engage s. 12 rights, a person must be in some way within the special administrative control of the state.42 Mr. Foley is free to leave the hospital if he chooses to do so, even if that may not be advisable due to his significant health care needs. None of the defendants exercise control over Mr. Foley in the way that Ontario exercises control over incarcerated persons with serious mental illnesses through the system of administrative segregation used in Ontario’s correctional institutions.
67Similarly, Mr. Foley’s claim that the medical assistance in dying provisions of the Criminal Code violate s. 12 of the Charter have no reasonable prospect of success. Those provisions do not involve any treatment or punishment at the hands of the state, so Mr. Foley’s challenge must fail at this first stage. The medical assistance in dying provisions do not amount to treatment at the hands of the state.43 The Criminal Code provisions that Mr. Foley challenges do not compel him to request or consent to any form of treatment. In addition, “treatment” does not include consensual medical treatment for the purposes of s. 12.44 The challenged provisions do not exercise any control over Mr. Foley or interfere in any way with his autonomous decision-making about his medical treatment.
68I find that Mr. Foley’s claims that the defendants breached his rights under s. 12 of the Charter have no reasonable prospect of success. I therefore strike the s. 12 claims that appear in paragraphs 1(a), (c), (d), (e), (h), (i), (j), 82, 97, 98, 99, 100, 113, 119(a)(ii), 119(b)(xi), 119(c)(xv), 119(d)(xxvii), (xxxii), and 119(f)(x) of the statement of claim.
69Mr. Foley has amended his statement of claim twice. Given the state of the law, and the text and purpose of s. 12, it will not be possible for Mr. Foley to amend his claim to plead a viable claim that the defendants breached s. 12 of the Charter. I do not grant leave for him to amend his pleading with respect to the allegations that the defendants breached his rights under s. 12 of the Charter.
The claim for damages for crimes against humanity or genocide have no reasonable prospect of success
70Mr. Foley seeks damages against all defendants for “damages for cruel and inhuman and degrading treatment, persecution of vulnerable persons with disabilities and crimes against humanity for a claim for damages under Canadian law against all the defendants.”45
71In his factum, Mr. Foley submits he should be permitted to continue with his claim against all the defendants for damages for genocide. Mr. Foley submits that he is entitled to damages arising under Articles 6 (genocide)46 and 7 (crimes against humanity)47 of the Rome Statute of the International Criminal Court. Mr. Foley’s factum contains the following submission:
Mr. Foley claims a widespread systemic attack against him and other disabled persons in Canada resulting in persecution, abuse, neglect, wrongful deaths, severe deprivation of liberty, cruel and inhumane treatment and genocide of vulnerable and disabled persons and soon disabled children and babies, and person with mental illness or persons that lack capacity. All the defendants are liable and complicit for their egregious misconduct in targeting Mr. Foley and others similarly situated.
72I find that it is plain and obvious that this claim cannot succeed and must be struck out. First, I see nothing in the Rome Statute of the International Criminal Court or the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, which incorporated the provisions of the Rome Statute into Canadian law, that suggests that it creates a private right of action in a Canadian civil court. The text, structure, and purpose of the Rome Statute and the Act demonstrate that neither instrument created such a private right of action. It is plain and obvious that an allegation of genocide will not support a civil cause of action.48
73Second, even reading the claim generously, Mr. Foley has not pleaded any facts that are capable of supporting a claim that any of the defendants have committed acts against him that could conceivably fall within the meaning of the “genocide” or a “crime against humanity.”
74I do not grant leave to Mr. Foley to amend his claim for civil damages arising from genocide or crimes against humanity. I can see no plausible amendments that would permit Mr. Foley to advance such a claim. I strike out paragraph 1(hhhhhh) of the statement of claim without leave to amend.
The constitutional challenge to sections 241 to 241.4 of the Criminal Code has no reasonable prospect of success
75Mr. Foley seeks a declaration that s. 241 to 241.4 of the Criminal Code, the sections that address medical assistance in dying, are unconstitutional because they violate ss. 7, 12, and 15 of the Charter.
76In my view, it is plain and obvious that these claims have no reasonable prospect of success. Mr. Foley’s claims are bound to fail for a constellation of reasons, some of which have been addressed above. To explain why these claims should be struck out, it will be helpful to begin by explaining the structure of the relevant Criminal Code provisions.
The relevant provisions of the Criminal Code
77Section 229 of the Criminal Code specifies that culpable homicide is murder where the person who causes the death of a human being means to cause that human’s death. Section 14 of the Criminal Code provides that a person cannot consent to have death inflicted on them and such consent does not affect the criminal responsibility of any person who inflicts death upon them.49 Relatedly, section 241 of the Criminal Code prohibits counselling, aiding, and abetting a person to die by suicide.50
78In Carter, as discussed above, the Supreme Court declared that ss. 14 and 241(b) of the Criminal Code violated the Charter because they prohibited physician-assisted death for a competent adult who consents to the termination of life and has a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.51
79Following the decision in Carter, Parliament amended the Criminal Code and enacted the medical assistance in dying provisions in sections 241.1 to 241.4 of the Criminal Code. Parliament subsequently amended these provisions in light of the decision in Truchon, discussed above, by creating a series of additional safeguards where a person’s natural death was not foreseeable.
80Section 241.2 provides that a person may receive medical assistance in dying only if they are at least 18 years of age and capable of making decisions with respect to their health, and:
(c) they have a grievous and irremediable medical condition;52
(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.
81Subsection 241.2(3) sets out a series of safeguards for a person whose natural death is reasonably foreseeable. This section places a series of obligations on medical practitioner or nurse practitioner, including that they must:
(a) be of the opinion that the person meets all of the criteria set out in subsection (1);
(b) ensure that the person’s request for medical assistance in dying was
(i) made in writing and signed and dated by the person or by another person under subsection (4), and
(ii) signed and dated after the person was informed by a medical practitioner or nurse practitioner that the person has a grievous and irremediable medical condition;
(c) be satisfied that the request was signed and dated by the person — or by another person under subsection (4) — before an independent witness who then also signed and dated the request;
(d) ensure that the person has been informed that they may, at any time and in any manner, withdraw their request;
(e) ensure that another medical practitioner or nurse practitioner has provided a written opinion confirming that the person meets all of the criteria set out in subsection (1);
(f) be satisfied that they and the other medical practitioner or nurse practitioner referred to in paragraph (e) are independent;
(g) if the person has difficulty communicating, take all necessary measures to provide a reliable means by which the person may understand the information that is provided to them and communicate their decision; and
(h) immediately before providing the medical assistance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying.
82In s. 241.2(3.1), the Criminal Code sets out additional, more robust safeguards that must be in place for a person whose natural death is not reasonably foreseeable. The additional safeguards include a minimum 90-day waiting period, unless both of the medical practitioners or nurse practitioners who assess the patient are of the opinion that the patient’s loss of capacity is imminent. The medical practitioners must inform the patient of the means available to relieve their suffering, including, where appropriate, counselling services, mental health and disability support services, community services and palliative care. The medical practitioners must offer the patient consultations with relevant professionals who provide those services or that care, and be satisfied that the patient has given serious consideration to those means. A patient must be provided with an opportunity to withdraw the request for MAID and give express consent to receive MAID, immediately before it is provided.
83Stepping back, if a medical practitioner does not comply with the MAID requirements in the Criminal Code, then that practitioner will not be exempted from Criminal Code’s prohibition on culpable homicide. A medical practitioner who does not comply with these provisions and aids a person to die by suicide may face charges under the Criminal Code.
84Mr. Foley’s statement of claim seeks a declaration that the MAID provisions of the Criminal Code are unconstitutional. For the reasons that follow, these claims have no reasonable prospect of success.
Mr. Foley has not pleaded facts that show that the MAID regime has affected one of his rights
85First, Mr. Foley has not pleaded material facts to underpin his allegation that the MAID provisions have affected any of his Charter rights. Although Mr. Foley pleads that he is “eligible” for MAID, that statement is not an accurate characterization of his status. I accept without hesitation that Mr. Foley has pleaded that he is over the age of 18, is eligible for health services funded by the government of Canada, and suffers from a grievous and irremediable medical condition. He has, therefore, pleaded facts that would satisfy the eligibility requirements in s. 241.2(1)(a) to (c). There are however, two more crucial eligibility requirements for MAID in s. 241.2(1)(d) and (e). A person may only receive medical assistance in dying if:
(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.
86Mr. Foley has expressly pleaded that he has not made a voluntary request for medical assistance in death, that he faced external pressure to make such a request, and that he has never given his informed consent to receive medical assistance in dying.53 Given the facts pleaded by Mr. Foley, it is plain and obvious that he was never eligible for MAID. Any medical practitioner pressuring Mr. Foley would not be able to avail themselves of the MAID exemptions from the Criminal Code prohibitions on homicide or counselling or aiding suicide. Mr. Foley’s challenge to the MAID provisions is hypothetical and not the proper subject of an action.
87Moreover, assuming that Mr. Foley could make out his allegation that medical practitioners at the hospital pressured him to consent to MAID against his will, those medical practitioners may well have been acting contrary to the protections provided in the Criminal Code. The failure of medical practitioners to comply with the Criminal Code protections could expose them to prosecution or a private action. This is not a case where the source of the increased risk to Mr. Foley’s life, liberty, or security of the person is the direct effect of compliance with the law.54 In my view, a third party’s failure to comply with a law cannot ground a constitutional challenge to the provisions with which they have not complied.
Mr. Foley has not pleaded facts that show that the MAID regime violated his rights under s. 7
88Second, a core feature of Mr. Foley’s pleading is that the MAID regime is unconstitutional and violates s. 7 of the Charter because the state has not offered additional, different, or further health care services to its citizens. For example, in paragraph 119(a)(x), Mr. Foley pleads
(x) The Federal Attorney General is required to provide an undeniable Constitutional Right to Health Care (as they now are required to provide Refugees with a Constitutional Right to health care services) for services, where any person has a grievous and irremediable conditions and is suffering that would otherwise qualify for assisted dying, if they qualify for assisted dying they qualify for assisting living with the government being duty bound to relieve a person’s suffering through providing services and support, when a person otherwise qualifies for assisted dying, so person have relief of their suffering and have their Charter rights protected;55
89He elaborates on this pleading in paragraph 77, which ties in his challenges under other provisions of the Charter:
Mr. Foley is being deprived of his rights to life, liberty and security of the persons that is not fundamentally just in a just and democratic society, is being subjected to cruel and unusual punishment and discrimination on the basis of his disabilities that he must end his life, so others can kill themselves and can have access to a so called manipulated state sponsored suicidal right, and it causes an unreasonable risk of wrongful deaths against Mr. Foley and others similarly situated.
90As I have explained above, there is no constitutional right to health care or a particular level of social benefits. In my view, it is plain and obvious that the MAID provisions of the Criminal Code cannot be challenged as constitutionally infirm based on the level of health care and social benefits provided by the various levels of government. Moreover, the Supreme Court of Canada’s decision in Carter was made against the backdrop of the existing health care system that was, and is, not required by the Constitution to fund all necessary medical services. There was no suggestion in the Carter decision that it was predicated or conditional on an assessment of the adequacy of the health care system.
91To the extent Mr. Foley pleads that the MAID regime is unconstitutional absent further or different kinds of health care or social benefits spending, it is plain and obvious that his claim cannot succeed.
Mr. Foley has not pleaded facts that show that the MAID regime violated his rights under s. 15
92Mr. Foley also pleads that the MAID regime violates his rights under s. 15 of the Charter. Section 15(1) states:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
93There are two requirements that must be satisfied by a claimant seeking a finding that a challenged law or state action infringes s. 15(1) of the Charter:
a. the challenged law or state action creates a distinction, on its face or in its impact, on the basis of an enumerated or analogous ground; and
b. the distinction imposes a burden or denies a benefit in a discriminatory manner, by having the effect of reinforcing, perpetuating or exacerbating disadvantage.56
94At step 1 of the s. 15 inquiry, where the claimant alleges that a law which is neutral on its face violates s. 15 because of its adverse effects or impacts, the claimant must show that the law has a disproportionate impact on members of a protected group. Such a disproportionate impact can be proven in different ways, including if there are clear disparities in how a law affects the claimant’s group as compared to other comparator groups.57
95Step 2 of the s. 15 inquiry, whether the distinction imposes a burden or denies a benefit in a discriminatory manner, will be satisfied if the challenged law creates a distinction that reinforces, perpetuates or exacerbates a disadvantage that exists independently of the impugned distinction.58 Evidence that a law is based on stereotypes or prejudicial notions about members of protected groups, or that it withholds access to benefits or imposes burdens arbitrarily, are relevant considerations, but need not be proven in order to establish discrimination.
96Mr. Foley pleads that the MAID provisions impose unconstitutional burdens on persons with disabilities by placing pressure on them to end their lives. He pleads as follows:
Mr. Foley and other individuals, who share similar disabilities, are facing tremendous pressure to end their lives, being made to feel they are a burden to society, with limited access to adequate healthcare and home care services. This treatment of disabled individuals, such as Mr. Foley, who are being offered medical assistance in dying rather than living, is creating a serious hardship on this vulnerable and disadvantaged class.
Mr. Foley is a person with high end needs is being particularly discriminated against as the more a person is disabled and fits in that subclass of high end needs, the greater the deprivation and the more disadvantaged and serious hardship they face and the greater their vulnerability and the greater the subclass is exploited.
The MAID provisions fail to provide adequate safeguards that ensure that vulnerable patients are provided with the range of available options for medical care. Instead, patients are being pressured to choose death, due to the lack of available options for medical care that could reduce their loss of personal dignity.
Seriously disabled patients like Mr. Foley, who could have many quality years ahead of them and want to choose life, are being forced into asking for death due to lack of adequate health care and home care options available to them.
The role of medical practitioners to respond to the needs, enhance the dignity of persons with serious disabilities, and to promote suicide prevention has been undermined by the MAID provisions, which have changed the conversation for health practitioners from life promoting to life-ending treatment, validating the concerns of disabled patients that their lives are devalued, and that their only option in the absence of life sustaining care is death.
The MAID provisions fail to protect vulnerable people like Mr. Foley from abuse and errors, and it is not a carefully monitored system that is strictly monitored and enforced. Without more restrictive criteria, disadvantaged members of society like Mr. Foley, who are seen as a drain on the healthcare system, are being coerced into assisted death, as an easy alternative to providing adequate care.
97There are a number of problems with Mr. Foley’s pleading of a s. breach, which are similar to the problems with his s. 7 pleading, which are described above.
98First, as discussed in paragraphs [85] to [86], Mr. Foley was not eligible for medical assistance in dying and the provisions did not apply to him or draw a relevant distinction about him.
99Second, the coercion that Mr. Foley identifies does not arise from the MAID provisions. As explained in paragraph [87], Mr. Foley asserts that the medical practitioners that attempted to coerce him into choosing a medically assisted death were acting in violation of the law. The conduct pleaded by Mr. Foley is expressly contrary to the provisions of the Criminal Code. Mr. Foley has not described a situation where he is suffering an adverse effect because of a law. He is asserting that he has suffered a harm at the hands of people who have violated that law. In my view, it is plain and obvious that such illegality cannot ground a s. 15 challenge to the MAID provisions.
100Third, Mr. Foley repeatedly pleads that the MAID provisions violate s. 15 of the Charter absent changes to the Canadian health care system. In my view, it is plain and obvious that this pleading has no reasonable prospect of success. It is contrary to the decision of the Supreme Court in Carter, which placed no such obligation on the government. Carter held that informed consent can be assessed in the context of MAID in the same way and using the same procedures that apply in other end-of-life decision making. The Supreme Court of Canada explained it this way:
Based on the evidence regarding assessment processes in comparable end-of-life medical decision-making in Canada, the trial judge concluded that vulnerability can be assessed on an individual basis, using the procedures that physicians apply in their assessment of informed consent and decisional capacity in the context of medical decision-making more generally. Concerns about decisional capacity and vulnerability arise in all end-of-life medical decision-making. Logically speaking, there is no reason to think that the injured, ill and disabled who have the option to refuse or to request withdrawal of lifesaving or life-sustaining treatment, or who seek palliative sedation, are less vulnerable or less susceptible to biased decision-making than those who might seek more active assistance in dying. The risks that Canada describes are already part and parcel of our medical system.
As the trial judge noted, the individual assessment of vulnerability (whatever its source) is implicitly condoned for life-and-death decision making in Canada. In some cases, these decisions are governed by advance directives, or made by a substitute decision-maker. Canada does not argue that the risk in those circumstances requires an absolute prohibition (indeed, there is currently no federal regulation of such practices). In A.C., Abella J. adverted to the potential vulnerability of adolescents who are faced with life-and-death decisions about medical treatment (paras. 72-78). Yet, this Court implicitly accepted the viability of an individual assessment of decisional capacity in the context of that case. We accept the trial judge’s conclusion that it is possible for physicians, with due care and attention to the seriousness of the decision involved, to adequately assess decisional capacity.59
101In my view, it is plain and obvious that Mr. Foley’s claim that the MAID regime violates s. 15 of the Charter cannot succeed.
Mr. Foley has not pleaded facts that show the MAID regime could violate his rights under s. 12
102For the reasons set out above, it is plain and obvious that the MAID regime does not violate s. 12 of the Charter. Those provisions do not amount to treatment, or a punishment, and the section is not engaged.
Conclusion
103For the reasons set out above, it is plain and obvious that Mr. Foley’s claim for a declaration that the MAID provisions of the Criminal Code violate his rights under ss. 7, 12, or 15 of the Charter cannot succeed.
104As pleaded, Mr. Foley’s claims regarding coercive pressure regarding MAID are not caused by or linked to the challenged provisions. Mr. Foley has pleaded material facts that allege that the harms for which he seeks redress were caused by his treatment by the hospital staff and his inability to access a higher level or medical care or a different type of medical care, namely in-home services.
105I strike out paragraphs 1(a) and (i), 32, 33, 77, 94 and 95 (to the extent these paragraphs address the MAID provisions of the Criminal Code), and 113 to 118, 119 (to the extent it addresses the MAID provisions of the Criminal Code), 119(a), (ii) to (xiv).
106I do not grant leave to Mr. Foley to further amend his statement of claim to advance his claim for a declaration that the MAID provisions violate the Charter. Mr. Foley has amended his claim twice already and did not provide a draft revised pleading that addresses the concerns raised by the defendants. Mr. Foley has strong and honestly held views about the decision to permit medical assistance in dying, even in limited circumstances. Those views must be advanced in the political arena, not in the courts. Moreover, for the reasons set out in paragraphs [27] and [28], the manner in which Mr. Foley has advanced his claim convinces me that no further amendments to this particular claim should be permitted. In my view, it is appropriate to deny him leave to amend further his claim that the MAID provisions of the Criminal Code are unconstitutional.
Remaining claims against the defendants
107Having addressed the issues that are common to all defendants, I will now consider the remaining claims against each defendant.
Claims against the Attorney General of Canada
108For the reasons set out above, I have already struck out Mr. Foley’s claims for damages for genocide or crimes against humanity, for the conduct of the litigation in Carter and Truchon, and for a declaration that the MAID provisions of the Criminal Code are unconstitutional.
109In his statement of claim, Mr. Foley frequently refers to “the defendants” as an undifferentiated group. In my view, Mr. Foley has pleaded no facts that raise any viable claims against the Attorney General of Canada. Mr. Foley has pleaded no legal basis upon which the Attorney General of Canada could be held responsible for any of the actions of any of the other defendants, all of whom are provincial bodies or private entities.
110Even if the MAID regime was to be found to be unconstitutional, both the Attorney General and Parliament are immune from claims of harm suffered due to the enactment or administration of a law that is subsequently found to be unconstitutional.60 Absent conduct that is clearly wrong, in bad faith, or an abuse of power, courts will not award damages for the harms suffered as the result of the mere enactment or application of a law that is subsequently declared to be unconstitutional. Invalidity of governmental action, without more, is not a basis for liability for harm caused by the action.61 Laws must be given their full force and effect as long as they are not declared invalid. It is only in the event of conduct that is clearly wrong, in bad faith, or an abuse of power that damages may be awarded.62
111It is plain and obvious that the Attorney General’s conduct in the Carter and Truchon cases cannot give rise to a claim in damages by Mr. Foley, who was not a party to those cases. The doctrine of absolute privilege protects the words spoken by the Attorney General in those cases.63
112Absent a plausible claim of a Charter breach, there is no basis for a claim for Charter damages under s. 24(1) against the Attorney General of Canada.
113In conclusion, I strike all claims against the Attorney General for Canada, without leave to amend, and dismiss the action against the Attorney General for Canada.
114Given this result, it is unnecessary to decide the Attorney General’s request that the challenge to the MAID provisions of the Criminal Code should proceed by way of application.
Claims against the Ontario defendants
115I will now address the remaining claims against the Ontario defendants.
There is no viable constitutional challenge to the impugned provincial legislation
116Mr. Foley seeks a declaration that a number of pieces of Ontario legislation are unconstitutional. He frames the request for relief as follows:
1(j) a declaration of invalidity pursuant to section 52(1) of The Constitution Act 1982, Schedule B to the Canada Act 1982 (UK), 1982, cl 1 that the Ontario’s Patient’s [sic] First Act, 2016, S.O. 2016, c. 30 and related Regulation O. Reg. 386/99 under the Home Care and Community Services Act, 1994, S.O. 1994, c. 26 section 28.5(1) and Ontario Regulation 438/17 under the HCCSA amending O. Reg. 386/99, and Ontario Regulation 367/94 under the Ministry of Community and Social Services Act, R.S.O. 1990, c. M.20 are unconstitutional and the Connecting People to Home and Community Care Act, 2020 (CPHCCA) and accompanying Regulation violate sections 7, 12 and 15 of the Charter, and are therefore of no force and effect, as the legislation limits services available to disabled individuals, impeding sufficient or timely access to healthcare services, prevents sufficient access to tailored services to patient needs that would relieve their suffering forcing them with no other option but assisted dying.
k) A declaration that Ontario’s restructuring of the delivery of home and community care services, which take effect April 1, 2021, continues to delay and limit disabled individuals’ access to services. The integration measures will take years to implement and will impede access to healthcare services and compound suffering.64
117Mr. Foley pleads that that the various pieces of provincial legislation that he challenges are unconstitutional because they do not provide for sufficiently robust levels of health care to protect him, given the level of medical treatment he requires:
Violations of the Charter have been found by the Federal Government trying to deny health care coverage to vulnerable Refugees. There is no doubt there is a Constitutional protected right in the circumstances for both the Provincial and Federal Government to ensure that there is legislation that ensures proper health care is being provided to vulnerable persons who are suffering, so that they are not forced to assisted suicide without any real choice. Health care needs to be delivered to ameliorate suffering with proper safeguards to prevent wrongfully assisted suicides.
The provincial…impugned legislation is overbroad, disproportionate, arbitrary, unclear and vague, as persons who could have their suffering relieved with simple adjustments to their care and ensuring options are actually available, are unnecessarily assisted to their death without any adequate safeguards or sufficient oversight, which is not fundamentally just.
The impugned provincial… legislation has created restrictive barriers to care that have violated Mr. Foley’s section 7 Charter right to life, liberty and security of the person and endangered his life. In particular, the restrictive service maximums set out in O. Reg. 386/99 under the HCCSA that limit home care and community service to 120 hours can be dangerous for high-needs disabled as they restrict access to the necessities of life and prioritized care.
Further, home care and community services provided under the HCCSA have violated Mr. Foley’s section 7 Charter right to life, liberty and security of the person and endangered his life, as they have failed to ensure an adequate standard of care and safeguards to protect his security of the person and his physical and psychological integrity. There is no requirement to prevent deterioration of the vulnerable or disabled by tailoring care based on the specific circumstances such as priority or end of life care.
118Underpinning all of these allegations of unconstitutionality is Mr. Foley’s assertion that Ontario has not provided him, through the impugned legislative instruments and otherwise, medically necessary health care in violation of his constitutional rights. For example, Mr. Foley pleads that the province has:
a. failed to provide him “with alternative means of assisted care that would relieve his suffering and encourage his independence, wellness, and dignity. This engages his right to life.”65
b. failed to “provide Mr. Foley with barrier-free access to healthcare services available under legislation is arbitrary without institutional justification” and contrary to the principles of fundamental justice.66
c. “denied Mr. Foley reasonable access to healthcare and denied his right to be funded individually…”67
d. “failed to provide Mr. Foley with available services that are already publicly available and funded and/or healthcare services that would enable him to control his medical treatment and protect his own physical and psychological integrity.”68
e. discriminated “against Mr. Foley with their rigid, inflexible and irrational approach to his health care and home care issues. The provincial legislation has failed to provide adequate home care and community services for disadvantaged and vulnerable members of society who share similar neurological disabilities creating specific hardships for his class of disability that falls outside the criteria for services such as self-directed funding.”69
119In my view, Mr. Foley’s claim for a declaration that the pieces of provincial legislation listed above violate his Charter rights must be struck out as disclosing no reasonable cause of action for four reasons.
120First, Mr. Foley has not precisely identified which particular provisions of which piece of legislation or regulation allegedly violates his Charter rights. In addition, he has not pleaded material facts to demonstrate, for example, how eligibility criteria under a specific regulation breached a Charter right. Mr. Foley’s broad statements described above are not sufficient to survive a motion to strike his claim as disclosing no reasonable cause of action.
121Second, read fairly and generously, Mr. Foley’s claim rests on his assertion that he is entitled to a higher level of health and community care services, or a different model of delivery, than the province has made available. For the reasons set out in paragraphs [46] to [51] above, s. 7 of the Charter does not provide a freestanding right to health care or to a particular type or level of social spending.70 Mr. Foley has not identified any prohibition or provision in the impugned provincial legislation that deprived him of his Charter rights.71 He has not pleaded how any deprivation of his rights was not in accordance with the principles of fundamental justice.
122Third, and for the reasons set out in paragraphs [93] to [95] and [98] to [101], Mr. Foley has not pleaded how any of the impugned provincial legislation draws a distinction or has a disproportionate impact on the basis of an enumerated or analogous ground such that it could violate s. 15 of the Charter.
123Fourth, the material facts pleaded by Mr. Foley identify discretionary decisions made by SW LHIN, CILT, and the persons at the hospital. Mr. Foley may challenge the constitutionality of those discretionary decisions, but such decisions do not impugn the constitutionality of the legislation that granted the authority to the decision maker. Put differently, if an individual exercises a statutory discretion in an unconstitutional manner, that does not make the legislation that conferred the discretion unconstitutional.72
124In my view, it is plain and obvious that Mr. Foley’s claim discloses no reasonable cause of action in support of his request for a declaration that certain provincial legislation is unconstitutional. For these reasons, I strike out paragraphs 1(j) and (k), 94, 95, 107, 119 (with respect to the provincial legislation and regulations), 119(b)(iv), (x), (xi), and 119(c)(xiii) to (xv).
125Given the state of the law, I do not see any amendments that could cure the defects in this pleading. Mr. Foley has amended his claim twice already and did not provide any proposed amendments that would cure the deficiencies. Mr. Foley has strong and honestly held views about the best way to deliver health care and social services in the province. He also believes that the level of care and service provided is inadequate to meet his significant needs. Mr. Foley must make these arguments, however, in the political arena, not in the courts. In my view, it is appropriate to deny him leave to amend further his claim for a declaration that certain provincial statues and regulations are unconstitutional.
The claim for damages arising out of Minister Hoskins’ letter has no reasonable prospect of success
126Mr. Foley asserts that a letter from the Minister of Health provides a basis for a cause of action against the Ontario defendants. Mr. Foley pleads that:
Ontario, did promise in writing, in a letter by the Minister of Health and Long-Term Care, Dr. Eric Hoskins, to Roger Foley to relieve his suffering and that the MOHLTC and the SW LHIN were going to work together on his home care and community service to ensure a resolution that would provide Mr. Foley with appropriate, safe, care that reflected his preferences including a self-directed funding option.
Despite these assurances from the Minister of Health, the defendants have not reached a resolution, nor have they fulfilled their obligation to provide Mr. Foley with hospital care, home care and community service that is appropriate, safe and reflects Mr. Foley’s preferences nor have they done anything to relieve Mr. Foley intolerable suffering.
127Mr. Foley seeks damages against the Attorney General for Ontario and His Majesty the King in Right of Ontario because:
The defendant, the Attorney General of Ontario [and his Majesty the King in right of Ontario] through their Minister working in the capacity as the Minister of Health and Long Term Care, had actual knowledge of Ontario’s ongoing serious Charter violations of the plaintiff, as the Minister promised the plaintiff in writing that he would relieve his suffering but took no action and left the plaintiff no other choice but to be offered for assisted dying, the threat of a forced discharge, and a hospital bill for $1,800 dollars per day. The defendant let the plaintiff suffer serious physical and psychological harm to his integrity, a serious restriction to his liberty, and put him in a life threatening situation because of the Ontario government’s inept failures pursuant to section 24(1) of the Charter and by denying him basic care he needed to have his suffering relieved;73
128Because Mr. Foley referred to the letter from Minister Hoskins in his statement of claim, and it forms an integral part of the statement of claim, it is appropriately before me on the rule 21.01(1)(b) motion to strike out his claim.74
129It is helpful to set the letter out in full in order to explain why it does not give rise to a cause of action. The letter is dated July 25, 2016, and is addressed not to Mr. Foley, but to Teresa Armstrong, the MPP for Mr. Foley (who was copied on the letter). Minister Hoskins was writing in response to a letter from Ms. Armstrong. The letter reads as follows:
Thank you for your letter of May 30, 2016, written on behalf of your constituent, Mr. Roger Foley. Please excuse the delay of my reply. I am copying Mr. Foley on this letter, as I would like to ensure that he is kept apprised of how my ministry is working with our health care partners to ensure a resolution to his care issues.
Our government's Patients First: Action Plan for Health Care exemplifies our commitment to putting the needs of people and patients at the centre of our health care system. Strengthening home and community care is a hallmark of our efforts to transform healthcare. As part of Patients First: A Roadmap to Strengthen Home and Community Care, the government is planning to pilot a self-directed care option in which clients and their caregivers will be able to hire their own provider or purchase services from a provider of their choice. I would note that while these plans are still under development, home care service delivery will continue to be bound by regulated service maximums.
It is my understanding that Mr. Foley has been in contact with staff in the ministry's Home and Community Care Branch, having reached out to them regarding his concerns. At present, I believe that the Local Health Integration Network and the Community Care Access Centre are continuing to work with Mr. Foley to reach a resolution that will provide him with appropriate, safe, care that reflects his preferences. Bringing health care providers and administrators together to better coordinate care for patients with complex medical conditions is of utmost importance. I would encourage Mr. Foley to continue to work with local health administrators and his care team.
Thank you for bringing this very important matter to my attention.
130In my view, it is plain and obvious that the letter from Minister Hoskins cannot form the basis of a cause of action against Ontario. Viewed fairly, the letter is nothing more than a promise that the Ministry of Health would work with its health care partners to address Mr. Foley’s concerns about the level and quality of service he was receiving.
131In his factum, Mr. Foley does not explain how this letter gives rise to a legal remedy. Mr. Foley submits that “this is not the language of a typical politician’s platitude.” In my view, it is plain and obvious that the letter does not create an enforceable contract between Ontario and Mr. Foley, to whom the letter was not even addressed. There is nothing in the letter to suggest that the statements of the Minister create binding obligations on the province to provide any particular outcome, much less an outcome other than that available pursuant to the existing and applicable statutory framework.75 Contrary to the submission of Mr. Foley, I cannot accept that Dr. Hoskins guaranteed a resolution of the issue, much less a resolution that would be acceptable to Mr. Foley.
132Mr. Foley does not assert any other private law cause of action that could arise from this letter.
133Equally, there is nothing in this letter that could form the basis of a claim for Charter damages. There is nothing in this letter that would establish a breach of Mr. Foley’s Charter rights, which is a necessary precondition to a claim for Charter damages.
134I find that it is plain and obvious that the letter from Dr. Hoskins does not give rise to a reasonable cause of action. I strike out paragraphs 80, 81, 119(b)(ii), and 119(c)(ii) of the statement of claim without leave to amend.
The claim against Ontario in negligence has no reasonable prospect of success
135In his factum, Mr. Foley submits that Ontario is liable to him directly in negligence and is also vicariously liable for the negligence of SW LHIN. Mr. Foley raises this claim for the first time in his factum. No such claim appears in the current version of the statement of claim, which he has already amended on two occasions. Such a significant allegation should be pleaded carefully, with material facts pleaded that make out each element of a cause of action in negligence.
136In any event, I will consider Mr. Foley’s submissions on negligence as they are relevant to whether or not I should grant leave to Mr. Foley to amend his statement of claim to plead negligence. Mr. Foley makes the following submissions in support of his claim in negligence:
The decision to deny Mr. Foley proper and appropriate access to necessary care including home care was operational and not a policy decision. Ontario was found liable for much less egregious conduct from administrative detention of patients with mental illness instead of providing proper medical care. [citing to Francis v. Ontario, 2021 ONCA 197] Administrative segregation can lead to suicide similar to wrongful assisted deaths of disabled person not getting the care they need to relieve their suffering. Ontario neglected to provide necessary health care to persons suffering intolerably knowing that violates a person’s security of the person and right to life. Mr. Foley has a grievous and irremediable condition and is substantially suffering, and Ontario did not provide the necessary and appropriate care to Mr. Foley and participating in coercing him to end his life giving him no other options and letting him be abused and neglected because his care needs are too much work for the Ontario Government.
Prior to the issues in Foley, Ontario, requires agencies and the LHIN to inform them of cases like Foley and agreed to assist to identify solutions removing rigid caps, removing hardship and disadvantage, avoiding and preventing improper forced institutionalization, developing person/patient centred focus, with greater use of self-directed care approaches to delivery of services, individualized care and supports, and that home care and community services should be available for persons in their own homes. Like Cole, Foley has been improperly institutionalized in the hospital, when direct funding public home care is available for Mr. Foley but being denied based on improper discrimination [citing Cole v. Ontario (Health and Long-Term Care) 2015 HRTO 1604.]
137Based on his submissions, I would not grant leave to Mr. Foley to plead a claim in negligence against Ontario.
138Mr. Foley’s reliance on Francis is misplaced. The plaintiff in Francis was an inmate in the Toronto South Detention Centre for over two years, while he was held on remand awaiting charges relating to a bank robbery. He suffered from mental illness and during his incarceration he was placed in administrative segregation twice for allegedly refusing to take mental health medication. The Francis case does not assist Mr. Foley. The court in Francis found that Ontario owed a duty of care to the inmates housed in a correctional facility run by Ontario because of the statutory duties Ontario owed to the inmates and its relationship with them. Mr. Foley has not identified any statutory duties owed to him by the province of Ontario that are in any way analogous to the statutory duties the province owed to inmates detained in a correctional facility. The relationship between the province and Mr. Foley is nothing like the relationship between the province and the inmates at the Toronto South Detention Centre.
139As is pleaded in Mr. Foley’s statement of claim, Ontario funds the provision of home and community care services: it does not provide those services. Merely funding the provision of services does not create a relationship of sufficient proximity to ground a private law duty of care.76 It is clear from the legislation governing the relationship between Ontario and the LHINs, including the defendant SW LHIN, that the province funds SW LHIN, it does not administer its work at an operational level.77 Similarly, Mr. Foley has not asserted any facts to suggest that Ontario has any hands-on role in assessing individual patients at the defendant hospital or making any decisions about the care they receive in the hospital.
140Mr. Foley’s reliance on Ontario’s alleged failure to “provide necessary health care to persons suffering intolerably” cannot succeed because, as set out above in paragraphs [47] to [51] there is no constitutional or private law duty on Ontario to provide a certain level of health care.
141Mr. Foley has not pleaded any facts to support his bald allegation that Ontario “participat[ed] in coercing him to end his life.”
142I do not accept Mr. Foley’s submission that the Cole case assists him. That case is a decision of the HRTO that held that Mr. Cole’s application was not moot and should be referred to a hearing to determine whether or not the province might be found to have violated the Ontario Human Rights Code. It is no support for the viability of Mr. Foley’s claim in negligence against the province.
143Mr. Foley has not identified material facts to suggest that Ontario would owe him a private law duty of care. He has not pleaded any material facts to make out the tort of negligence against Ontario. He has already amended his claim twice and he has not provided a draft pleading that would cure any of these deficiencies. For that reason, I would not grant leave to Mr. Foley to assert a claim in negligence against Ontario.
It is plain and obvious that Ontario is not vicariously liable for any negligent acts committed by the SW LHIN
144It is not clear that Mr. Foley pleaded in his statement of claim that the Ontario defendants were vicariously liable for the actions of SW LHIN. However, in his factum, Mr. Foley submits that Crown agencies “vow obedience as agents of the Crown akin to an employment relationship.” Mr. Foley submits that the relationship between a Crown agency and the Crown is like the relationship between a bishop and a priest in a diocese and, therefore, the Crown may be vicariously liable based on John Doe v. Bennett.78 Therefore, Mr. Foley submits,
It is clear the relationship between the Provincial Government and the LHIN and its agencies is sufficient close to enhance the risk of wrongful deaths, abuse and neglect from the assisted dying regime and wrongful conduct of denying persons with disability the care that they need to live to relieve their intolerable suffering and increasing the risk of wrongful deaths, as the diocese is responsible for sexual assaults by its priests.
145Mr. Foley’s intended pleading has no reasonable prospect of success. Clause 9(1)(a) of the Crown Liability and Proceedings Act, states that “The Crown is not liable for torts committed by, (a) Crown agencies”.79 A corporation that is expressly declared to be a Crown agent is a Crown agency for the purposes of the Crown Liability and Proceedings Act.80 Pursuant to the Local Health System Integration Act, LHINs are corporations that are expressly declared to be agents of the Crown.81
146In my view, it is plain and obvious that the Crown cannot be held vicariously liable for any torts committed by SW LHIN because of the Crown Liability and Proceedings Act.82
147To the extent that Mr. Foley has pleaded in his statement of claim that the Ontario defendants were vicariously liable for the actions of SW LHIN, those claims are struck out. In any event, I would deny leave to amend his claim to plead that the Ontario defendants were vicariously liable for the actions of SW LHIN. Given the provisions of the Crown Liability and Proceedings Act, there are no amendments capable of curing this fatal defect.
It is plain and obvious that Ontario is not liable for any Charter breaches by other defendants
148Because Mr. Foley’s statement of claim often refers collectively to “the defendants,” it appears to claim that Ontario should pay Charter damages as a remedy for constitutional violations committed by SW LHIN, CILT, or the hospital. To the extent Mr. Foley advances such a claim, it is plain and obvious that it cannot succeed.
149In paragraphs 5 to 8 of the statement of claim, Mr. Foley pleads that each of His Majesty the King in Right of Ontario and the Attorney General for Ontario “through and with its agents, servants and employees, was responsible for the planning, administration, funding, and provision of health care and home and community services, and direct funding in Ontario.” Ontario accepts that the Minister of Health is responsible for funding the provision of home and community care services, but those services are coordinated and delivered by other entities, including the SW LHIN, CILT, and the hospital. I agree.
150The legislation and regulations relied on by Mr. Foley make it plain and obvious that home and community care services are coordinated and delivered by entities other than the province. Indeed, all of the facts pleaded by Mr. Foley identify SW LHIN, CILT, and the hospital as the entities that provided the services to him and decided what services he did or did not receive. Mr. Foley has pleaded no facts to support his bare allegation that Ontario was responsible for the provision of health care and home and community services. For the purposes of this motion, I am not required to accept bald conclusory statements of fact or legal conclusions unsupported by material facts.83
151Moreover, it is plain and obvious that Ontario would not be liable for Charter breaches committed by other agencies. Under s. 24(1) of the Charter, courts may award damages directly against the specific government actor that breached the claimant’s Charter rights.84 Ontario is not liable for any Charter damages flowing from the breach of Mr. Foley’s Charter rights where that breach was committed by another defendant.85 Similarly, it is plain and obvious there is no constitutional obligation on Ontario to prevent other government actors from violating Mr. Foley’s constitutional rights.86
152I strike out all of Mr. Foley’s claims that Ontario is responsible for any Charter breaches committed by other defendants, without leave to amend. Given the state of the law, there are no amendments that are capable of curing these defects.
Conclusion
153In conclusion, I strike all claims against His Majesty the King in Right of Ontario and the Attorney General for Ontario, without leave to amend, and dismiss the action against the His Majesty the King in Right of Ontario and the Attorney General for Ontario.
Claims against SW LHIN
154SW LHIN is a Crown agency that receives funding from the Ontario Ministry of Health that provides local health care services to persons in their homes or in the community, among other things.87 Mr. Foley pleads a number of material facts that support his claim against the SW LHIN. This summary is drawn from the factum of SW LHIN, which well summarizes Mr. Foley’s statement of claim:
a. In 2010, Mr. Foley moved to London. Due to his health, Mr. Foley required home care from various home care agencies. SW LHIN facilitated those arrangements.88
b. In 2014, Mr. Foley began receiving approximately 201 hours of home care per month from Cheshire Homes of London Inc. Mr. Foley complained about the standard of care he received from Cheshire Homes to SW LHIN and other agencies.89
c. Mr. Foley was admitted to the hospital on November 3, 2015, and was released back into home care on December 2, 2015, and readmitted to the hospital on February 3, 2016.90
d. On March 15, 2016, Mr. Foley contacted the SW LHIN to inquire about self-directed funding, which would enable him to employ agency workers of his choosing and manage his own schedule. The SW LHIN advised Mr. Foley that direct funding was not available through the SW LHIN, as it lacked the legislative authority to implement a self-directed funding program in their region. SW LHIN directed Mr. Foley to make his application to CILT.91
e. On or about March 17, 2016, Mr. Foley submitted his application for self-directed funding to the CILT. On February 3, 2017, CILT rendered a decision that he was ineligible for the direct funding program.92
f. SW LHIN told Mr. Foley that his home care hours would be reduced if he did not go back to home care under Cheshire Homes. Mr. Foley refused, and the SW LHIN reduced his attendant care hours to 90 hours.
g. The Hospital and SW LHIN staff attempted to force Mr. Foley to choose between discharge into agency care and accepting medical assistance in dying.93
h. The Ministry of Health and Long Term Care promised in writing to work with the SW LHIN to develop a resolution regarding Mr. Foley’s home care and community service. No such resolution has been reached.94
The claims arising from the request for self-directed funding have no reasonable prospect of success
155Mr. Foley pleads in his statement of claim that SW LHIN is liable to him for damages for failing to offer him self-directed funding in response to his request of March 15, 2016, and, instead, directing him to apply to CILT. Mr. Foley seeks some or all of Charter, public law, or private law damages for SW LHIN’s failure to offer him funding.
156SW LHIN moved under rule 21.01(1)(a) for the determination of a matter of law before trial that this aspect of Mr. Foley’s claim could not succeed. SW LHIN submits that, as a matter of law, it did not have the legislated authority to offer self-directed funding to Mr. Foley on March 15, 2016. For the reasons that follow, I agree, and strike out this aspect of Mr. Foley’s claim.
157In his statement of claim, Mr. Foley pleads that SW LHIN had the following statutory authority to provide the funding to him:
LHINs have the legislative authority to establish self- directed funding programs under the HCCSA. Under section 28.5(1), the Minister may approve a LHIN to provide funding to or on behalf of a person to purchase a prescribed community service. Approved funding is subject to requirements set out in the section.
Direct funding for the provision of homecare services pursuant to section 28.5(1) of the HCCSA can be provided to specific categories of persons as set out in Ontario Regulation 438/17 under the HCCSA amending O. Reg. 386/99. These include children with complex medical needs, adults with acquired brain injuries, persons eligible for school health professional services and persons for whom the LHIN determines that extraordinary circumstances exist that justify the provision of the funding.
158However, s. 28.5 was not added to the HCCSA until December 8, 2016, five months after Mr. Foley requested the SW LHIN to provide him with direct funding.95 Until that time, there was no statutory authority for SW LHIN, or its predecessors, to grant self-directed funding to Mr. Foley. As a matter of law, SW LHIN cannot be liable to Mr. Foley, on any theory of damages, for failing to provide him with direct funding at a time when it had no statutory authority to do so. Even in his factum, Mr. Foley failed to identify a statutory provision that would authorize SW LHIN to provide such funding.
159I strike out this aspect of Mr. Foley’s claim, without leave to amend.
Other claims against SW LHIN
160Mr. Foley appears to plead many causes of action against SW LHIN.
161For the reasons set out above, I have already dismissed Mr. Foley’s claims against SW LHIN for violations of section 7 and 12 of the Charter and for damages for cruel, inhumane, and degrading treatment; persecution of persons with disabilities; and crimes against humanity.96
162Mr. Foley’s remaining claims include the following:
a. declaratory relief and damages under section 24(1) of the Charter due to the violations of his rights under section 15;
b. damages for breach of the duty of good faith, improper conduct, abuse of power, and bad faith for allegedly overbilling him for health care services and for sending a collections agency to pressure him into consenting to medically assisted death;97 and
c. damages for breach of “private and public law duty of care.”
163I accept the submissions of SW LHIN that a statement of claim must plead material facts to make out the legal elements of an otherwise recognized cause of action. It is not sufficient for a statement of claim to name a cause of action, it must plead facts that, if proven at trial, would establish the claims.98 Mr. Foley has not pleaded the material facts to underpin a private law duty of care or to explain the source of a “public law duty of care” owed to Mr. Foley. Mr. Foley has not pleaded any facts that, if proven at trial, demonstrate that SW LHIN:
a. provided the home care services that he received;
b. was involved in the decision to discharge Mr. Foley into unsafe home care;
c. engaged in any discriminatory conduct by SW LHIN or its employees;
d. through its employees, deprived Mr. Foley of food water, or necessaries of life, or was responsible for the direct delivery of such necessaries to him; or
e. directly, or through agents for which it is responsible, billed him for any items for which he was not legally responsible, breached any contract with him that required him to pay for certain services, entered into an unconscionable contract with him for services, or engaged in any unlawful misconduct with respect to attempt collect any amounts owing (whether or not those amounts were properly billed).
164Mr. Foley has included a long list of alleged failings of SW LHIN in paragraphs 119(d)(i) to (xvi), but these failings are bare conclusions. Missing from the statement of claim are the material facts that would underpin these conclusions. There are no pleaded facts that, if true, would demonstrate that SW LHIN, specifically, was responsible at law for any of the alleged wrongs.
165SW LHIN fairly submits that the allegations in the statement of claim are extremely vague and broad, such that it is often difficult (or impossible) to determine if an allegation is about a specific defendant and, if so, which one.
166Finally, in his factum, Mr. Foley suggests that SW LHIN is vicariously liable for the actions of certain agencies that provided home care to him at various times between 2014 and February 2016. This assertion does not appear in the statement of claim, Mr. Foley has pleaded no material facts to suggest that SW LHIN would be vicariously responsible for the conduct of these agencies, and Mr. Foley has not named those agencies as defendants in this proceeding. I would not grant leave to Mr. Foley to advance such a claim at this time.
167I find that the claim against SW LHIN should be struck out in its entirety. The deficiencies in the claim are too numerous to permit a more tailored approach.
168In my view, it is appropriate to grant Mr. Foley leave to amend the claim to plead some of the causes of action he has raised against SW LHIN. Reading the claim generously, it appears to me that Mr. Foley may be able to amend his pleading to advance certain claims. Although Mr. Foley’s statement of claim is deficient, I grant him leave, subject to the terms I discuss below, to amend the pleading. Mr Foley may amend his claim to plead that SW LHIN:
a. reduced Mr. Foley’s attendant care hours from 210 to 90 hours;
b. failed to provide Mr. Foley with existing services that he was entitled to receive;
c. discriminated against Mr. Foley on account of his physical disability while he was at the hospital;
d. attempted to pressure Mr. Foley into medical assistance in dying;
e. billed Mr. Foley for services for items for which he was not legally responsible, overcharged him for goods or services provided, or entered into an unconscionable contract with him; and
f. engaged in misconduct (directly or through its agents) in an attempt to collect amounts that Mr. Foley allegedly owed.
169This is not to say that Mr. Foley will necessarily be able to identify legally cognizable private law, public law, or constitutional duties that SW LHIN owed to him, or that he can plead material facts sufficient to demonstrate a plausible cause of action in respect of any of his allegations. I am only determining that, reading the pleading very generously, he should be given one more chance to do so, subject to the terms set out below.
Claims against CILT
170The defendant CILT is a non-profit organization that is an approved agency to administer the direct funding program, which allows adults with physical disabilities to become employers of their own attendants. The program permits adults to receive monthly funds to obtain attendant services, which are defined in O. Reg. 367/94 to mean:
Turning a person in bed, lifting a person, positioning a person or transferring a person from one place to another.
Assisting a person with washing, bathing, showering, shaving or personal grooming.
Assisting a person with dressing or undressing.
Catheterization, emptying and changing a leg bag, assisting a person with using the toilet or otherwise assisting a person with urination or bowel routines.
Assisting a person with breathing, caring for a tracheostomy or caring for respiratory equipment.
Assisting a person with eating.
Assisting a person with meal preparation, dish washing, laundry or other housekeeping tasks.
Assisting a person with essential communication.99
171Pursuant to its statutory mandate, CILT is required to determine whether or not an applicant is an eligible person. The eligibility criteria are comprehensively defined by regulation.100
172Mr. Foley pleads that on March 17, 2016, he applied to CILT for direct funding of self-managed attendant services.101 He pleads that on July 14, 2016, his application was expedited by CILT, and that he met with members of the selection panel on September 20, October 3, and November 14, 2016.102 Mr. Foley pleads that the process was delayed for “several months” due to his accommodation needs and the need to replace a panel member that Mr. Foley complained about:
The interview process was delayed by several months due to challenges with CILT accommodating the mobility and location needs of Mr. Foley. Moreover, there were further delays due to the replacement of a member of the panel after Mr. Foley lodged a complaint about unfair treatment.103
173On February 3, 2017, CILT advised Mr. Foley that he was not eligible to receive direct funding. On March 19, 2017, Mr. Foley filed a statutory request for review of the CILT decision on eligibility. The review decision was not provided to Mr. Foley within the timeline set out in the statute.104
174At paragraph 119(f) of the statement of claim, Mr. Foley lists a series of failures and violations by CILT that he pleads justify Charter damages against CILT. Mr. Foley pleads “as against CILT”:
(i) The plaintiff incorporates by reference all material facts as alleged from 1-116 in this claim and further
(ii) Failure to provide the plaintiff with his procedural rights to fair process and substantive right to due process;
(iii) Failure to provide the plaintiff with proper accommodations for his disability to provide him with fair process;
(iv) Failure to provide the plaintiff with barrier-free access;
(v) Violation of the plaintiff’s right against discrimination by failing to accommodate the plaintiff’s physical disability;
(vi) Failure to treat the plaintiff with dignity and the right of physical and psychological integrity;
(vii) Failure to prevent substantial delays in the plaintiff’s Right to Review that are interfering with his right to life, dignity and security of the person;
(viii) Violation of the plaintiff’s right against demeaning and degrading treatment;
(ix) Failure to provide the plaintiff with reasonable, barrier free access to healthcare and home care and community services;
(x) CILT implemented and denied Mr. Foley life affirming services and equal access to life affirming services that knowingly deprived Mr. Foley his right to life liberty and security and unlawfully implemented the Medically Assisted Death regime in violation of s.7, s.12, and s15. to abuse Mr. Foley, neglect him , and coerce Mr. Foley to die and relieve them of their obligations to care for Mr. Foley.
(xi) CILT pre-selects in a bias and discriminatory manner patients that require less intense care then Mr. Foley and hoards their budget and neglects or wrongfully bars patients who are at risk of unnecessary deaths from access to their program from the MAID regime, despite claiming they provide such services to persons like Mr. Foley and neglect their duty of care to Mr. Foley and did not act in good faith knowing the precarious situation of Mr. Foley and his high end care needs.
(xii) Charter Damages under section 24(1) to vindicate his fundamental Charter Rights and Freedoms, deter systemic violations of a similar nature and compensate him for his suffering and loss of dignity.
175I accept CILT’s submissions that the pleading lacks material facts that, if accepted, would make out a breach of Mr. Foley’s Charter rights. Mr. Foley has not pleaded the material facts necessary to obtain the relief he seeks against CILT.
176Moreover, the facts pleaded by Mr. Foley make it plain and obvious that CILT has no role in providing medical assistance in death pursuant to the exemption in the Criminal Code and no role in the coercion pleaded by Mr. Foley. I, therefore, strike subparagraph 119(f)(x) without leave to amend.
177CILT acknowledges that its decision regarding whether or not Mr. Foley was eligible for direct funding may be subject to Charter scrutiny.105 In my view, subject to the terms set out below, Mr. Foley should be given a final opportunity to plead material facts that would support a claim that the CILT process and that outcome of its decision violated his rights.
178CILT submits that it completed an “exhaustive consideration” of Mr. Foley’s application and that Mr. Foley failed to utilize his statutory rights of appeal. CILT also submits that the issues Mr. Foley addresses may have formed the basis of an application for judicial review or a complaint to the Human Rights Tribunal of Ontario. While those submissions may underpin CILT’s defence to Mr. Foley’s claims, I do not think they are a reason to deny Mr. Foley leave to amend his claim to frame his complaints as a civil action, seeking damages, including Charter damages.
179I find that the claim against CILT should be struck out in its entirety. I am, however, prepared to grant Mr. Foley leave to amend his claim against CILT, except with respect to the claim asserted in paragraph 119(f)(x), subject to the terms set out below.
Claims against the hospital
180The defendant London Health Sciences Centre is a public hospital.
181Mr. Foley was an in-patient at the hospital between November 3, 2015, and December 2, 2015, and again from February 3, 2016, to date. Mr. Foley makes a series of complaints about the treatment he received at the hospital. He frames many of these complaints as alleged breaches of his rights under the Charter. Some of his complaints seem closer to pleadings of negligence or breach of other private law duties that might be owed to him.
182In his statement of claim, Mr. Foley alleges that the hospital, or its medical staff, or its administrators:
a. routinely refused to accommodate his medical condition and to provide appropriate medical assistance devices to assist the plaintiff;106
b. routinely held important meetings about the plaintiff, which he could not attend due to his disability, and made no effort to accommodate him despite his frequent requests;107
c. told him that he cannot access his computer or phone, and refused him access to his own information and records;108
d. berated him because of his refusal to accede to an unsafe forced discharge;109
e. were verbally and physically aggressive towards him and ignored his requests for assistance;110
f. failed to provide him with food and water (on one occasion for an entire week), ignoring his requests for assistance on several occasions or provided him with food that was unsuitable given his allergies and health needs;111
g. failed to help him with his basic hygiene and his activities of daily living, including that it failed to assist him with “going to the bathroom and left him in his own feces, and denied him necessary equipment and services for his disability”;112
h. deliberately endangered his life and refused to provide him with blood tests or access to a physician;113
i. threatened to force a discharge on Mr. Foley, despite his treating physicians identifying that as an unsafe option for him;114
j. threatened to charge him approximately $1,800 per day of hospital care if he would not leave the hospital and then charged him for his ongoing stay;115
k. trying to force or coerce Mr. Foley into choosing medical assistance in dying;116
Charter claims against the hospital
183The hospital submits that “generally speaking, a private entity, such as a hospital, is not subject to the Charter.” The hospital recognizes that where a private entity is implementing a specific government policy or program, those actions of the private entity may be subject to the Charter.
184This is consistent with the Supreme Court of Canada’s decision in Eldridge, which held that when hospitals provide medical services to the public, they are carrying out a specific government objective created by the Canada Health Act and provincial legislation to provide a full range of medical services to the public.117 In that case, the Charter applied to the hospital’s failure to provide sign language interpreters:
in the present case there is a “direct and . . . precisely-defined connection” between a specific government policy and the hospital’s impugned conduct. The alleged discrimination -- the failure to provide sign language interpretation -- is intimately connected to the medical service delivery system instituted by the legislation. The provision of these services is