COURT FILE NO.: CV-19-00629398-0000 DATE: 2024-07-12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Andrew Rogerson personally, and Andrew Rogerson as Litigation Guardian for Grace Andrea Rogerson, Plaintiffs
AND: Havergal College, Catherine Misson and Kate White, Defendants
BEFORE: Chalmers J.
COUNSEL: A. Rogerson, self-represented L. Rotstein, and R. Bucholz, for the Defendants
HEARD: May 15, 2024, by videoconference
ENDORSEMENT
Overview
[1] The plaintiffs claim damages arising from the manner in which the defendants dealt with alleged bullying of the infant plaintiff Grace Rogerson (Grace). The plaintiffs allege that Grace was bullied by Student Q. when they were both students at the defendant school, Havergal College (the College). The defendant Catherine Mission (Mission) is the former principal of the College. The defendant Kate White (White) was the head of the junior school at the College at the time the bullying allegedly occurred.
[2] The defendants argue that the action has been conducted in an abusive and vexatious manner. The defendants state that since May 2023, the plaintiffs breached various orders of this Court and failed to pay cost orders totaling $145,000. The defendants bring this motion to strike the plaintiffs’ pleadings and dismiss the action pursuant to the Court’s discretion under Rules 57.03(2) and 60.12.
[3] For the reasons set out below, I grant the defendants’ motion. The plaintiffs’ action is immediately stayed. If the plaintiffs do not pay the outstanding cost orders in full within 30 days of the date of this endorsement, the plaintiffs’ pleadings shall be struck without any further notice to the plaintiffs.
Procedural Background
[4] The plaintiffs caused the statement of claim to be issued in October 2019.
[5] Soon after the claim was issued, the College brought a motion for an order dealing with the privacy of the non-party minor, Student Q. On November 28, 2019, Justice Penny issued an order redacting any information that would have identified Student Q. He sealed the original statement of claim and ordered the parties to file amended pleadings. He further ordered that the documents filed in court be subject to the sealing order or be appropriately redacted. (the “Penny Order”).
[6] With respect to the issue of costs, Justice Penny accepted the defendants’ counsel’s submission that the excess time incurred on the motion was necessitated by the conduct of the plaintiffs and the materials the plaintiffs had submitted. Justice Penny awarded costs to the College in the amount of $30,000. The plaintiffs’ motion for leave to appeal the cost award was abandoned before it was argued.
[7] Justice Koehnen was appointed the case management judge. Shortly after his appointment, the plaintiffs brought a motion to recuse Justice Koehnen. The motion was abandoned before it was argued.
[8] In December 2019, Justice Kimmel was appointed the case management judge. She convened a case conference for December 19, 2019. At that time, the parties entered into a consent order which set out the timetable for various procedural steps and to proceed to a summary trial in May 2020. It was a term of the order that, “neither party nor their counsel may provide any comments, statements of interviews to the media until after the trial has been decided or the parties otherwise agree”. (the “Kimmel Order”)
[9] The defendants brought an urgent motion before Justice Kimmel to remove from the court file certain affidavits that had been filed by the plaintiffs, to protect the confidentiality of minor children. The defendants took the position that the affidavits were in breach of the Penny Order. Before the defendants’ motion could be heard, the plaintiffs brought an urgent motion for Justice Kimmel’s recusal from hearing the motion or any other motion in the action.
[10] The recusal motion was agued on April 2, 2020. Following the hearing, Justice Kimmel dismissed the motion with reasons to follow. She provided her reasons by endorsement dated April 22, 2020. She noted that Mr. Rogerson had made allegations of serious misconduct against the two judges who had been assigned to case manage the action. She was satisfied that there was no objectively reasonable apprehension of bias or evidence of actual bias. (*Rogerson v. Havergal*, 2020 ONSC 2164).
[11] The motion for the removal of certain affidavits from the court file was argued on April 3, 2020. Justice Kimmel found that the Rogerson affidavit was filed in the public court file, in breach of the Penny Order. The affidavit contained descriptive language that tended to identify Student Q. and her family. Student Q’s confidential school records were appended to the affidavit in their entirety. The affidavit attached additional school notes about Student Q. that formed part of her confidential school records. Justice Kimmel struck the Rogerson affidavit, and it was removed from the court file. Justice Kimmel provided her reasons by endorsement dated May 21, 2020 (*Rogerson v. Havergal*, 2020 ONSC 3172).
[12] Justice Kimmel ordered the plaintiffs to pay substantial indemnity costs of the motion to the family of Student Q in the amount of $17,948.92. She also awarded costs to the defendants in the amount of $23,684.52. She noted that in defence of the request for costs, the plaintiffs argued that an award of costs against them would create a barrier to access to justice because of the plaintiffs’ financial circumstances. Justice Kimmel noted that “there is no evidence of the impecuniosity or of any dire financial or personal health circumstances of the plaintiffs in this case that could support the extraordinary result of no costs being awarded against them, especially in light of the course of conduct that they adopted in relation to the affidavits at issue”: *Rogerson v. Havergal*, 2020 ONSC 3172, at para. 27.
[13] In awarding substantial indemnity costs to the family of Student Q., Justice Kimmel made the following comments with respect to the plaintiffs’ conduct:
[32] Despite the clearly stated rationale for the Penny Order, which was to protect fundamental privacy rights of a minor child, and despite clear notice of the intention to seek enhanced confidentiality protection before any child’s confidential School Records from the defendants’ productions were tendered as evidence, the plaintiffs indiscriminately appended to an affidavit (and summarized in the body of the affidavit) Student Q’s confidential School Records in their entirety as well as other materials that identify or tend to identify Student Q and/or her family. As the COVID-19 pandemic took hold and the courts were in the process of shutting down, the plaintiffs went ahead and filed these materials in the public court file after being advised that there were concerns about their contents, and then did not respond to inquiries about whether they had been publicly filed for a number of days, ultimately requiring the court to intervene.
[14] The plaintiffs sought leave to appeal Justice Kimmel’s cost order. The leave application was unsuccessful.
[15] In early spring 2020, Mr. Rogerson started a parallel action; Mother Doe v. Havergal College (the Companion Action). In the Companion Action, the minor plaintiff sought compensation stemming from alleged bullying by other students at the College. Andrew Rogerson acted as counsel on behalf of the plaintiffs in the Companion Action.
[16] Justice Myers heard an urgent motion brought by the defendants in the Companion Action, to seal the court file and to ban publication of the identities of the minor children involved. In his reasons dated April 14, 2020, (*Mother Doe v. Havergal*, 2020 ONSC 2227) Justice Myers noted that the plaintiff had sent the statement of claim and the affidavit of Mother Doe to the Toronto Star. He noted that disclosing the affidavits to the Toronto Star may have violated the interim publication ban in his April 6, 2020 order. He granted the order to protect the identity of the minors. In his reasons, Justice Myers stated as follows:
[87] What is particularly troubling is that since Mr. Rogerson is a party and Ms. Salvatore is his counsel of record, in the other action involving allegations of bullying against Havergal and another minor student, they were well aware of the order of Justice Penny in that action and they knew of the concern of identifying minors in this action [….] then counsel for the plaintiffs breached a court order, demonstrated flagrant disrespect for the process of the court, and caused costs to be incurred unnecessarily, all to further some perceived tactical advantage.
[91] I reject Mr. Rogerson’s submission that the motion was about nothing. In my view, this is a case in which the plaintiffs’ conduct in the proceeding was reprehensible and caused the other parties to incur costs that never should have been incurred. The disingenuousness of the plaintiffs’ alleged concern for the privacy of the children was belied by their acts. They deliberately made public the minor defendants’ identities knowing of the risk of harm to them in doing so and despite Ms. Salvatore’s email. Together with their creation of urgency and breaches of the scheduling order, I find that the plaintiffs abused the process of the court for ulterior purposes.
[17] The plaintiffs sought leave to appeal Justice Myers order. The leave application was unsuccessful.
[18] In early 2022, Justice Kimmel was no longer sitting on the civil team in Toronto and the matter was transferred to Justice Dow for case management. On November 29, 2022, the defendants’ counsel wrote to Justice Dow about the failure of the plaintiffs to move the action forward. The defendants brought a motion to compel Mr. Rogerson to answer undertakings from his discovery that took place on October 25 and 26, 2021.
[19] On April 5, 2023, Justice Wilson wrote to counsel advising that she had taken over as the case management judge. On April 13, 2023, the defendants’ motion was scheduled for April 28, 2024. On April 18, 2023, Mr. Rogerson delivered a Notice of Change of Solicitor indicating that he would be acting on his own behalf. The Forte Law Droit firm would continue to act on behalf of Grace.
[19] The defendants’ motion was argued before Justice Wilson on April 28, 2023. There were two aspects to the defendants’ motion; the alleged breach of the Kimmel Order and the plaintiffs’ failure to comply with discovery obligations.
[20] Mr. Rogerson failed to file any responding materials for the motion. He asked that the motion be “stood down” to allow his material to be sent to Justice Wilson. During the hearing of the motion, Mr. Rogerson sent the factum that was filed in a complaint made to the Ontario College of Teachers concerning the defendant White. He also forwarded three other documents; “Discovery needed from the Defendants”, “Correspondence I have managed to obtain/have received” and a document entitled, “Who I Am? How I came to be here today – precis”.
[21] Justice Wilson, in her endorsement dated May 19, 2023, described the document entitled, “Who I Am? How I came to be here today – precis” as what “appears to be a stream of consciousness of Mr. Rogerson’s thoughts and includes negative comments about the behaviour of defence counsel, bad faith allegations and personal comments about Ms. Rothstein. None of the material submitted at the hearing of the motion consists of evidence”. Following the hearing of the motion, Mr. Rogerson wrote to Justice Wilson and requested an opportunity to file additional material. On May 9, 2023, he sent an aide memoire. He sent a “polished version” of the aide memoire on May 11, 2023. None of the material delivered by Mr. Rogerson was properly evidence before the court.
[22] The Kimmel Order provides that none of the parties nor counsel were permitted to provide any comments, statements or interviews to media until after the trial had been decided. On August 14, 2022, Ms. Jenkins a journalist in Melbourne Australia contacted the defendants’ counsel. She advised that she had been contacted by Mr. Rogerson about the Toronto litigation for a newspaper in Australia. At the time of the email the defendant Mission was living in Australia. Ms. Jenkins wrote an article that was published in the Herald Sun on August 19, 2022, which referenced the Toronto litigation. On March 14, 2023, the defendants’ counsel received an email from another Australian journalist advising that a law firm had been retained to investigate claims of bullying while Mission was the principal of a school in Melbourne.
[23] Mr. Rogerson did not deny providing information to the Australian journalists. He argued that he did not breach the Kimmel Order because he did not provide any information in writing. Justice Wilson noted that the Kimmel Order prohibits the parties from providing any comments or statements about the case to the media and was not restricted to statements made in writing.
[24] Justice Wilson released her endorsement on May 19, 2023. She found that Mr. Rogerson knowingly breached the Kimmel Order. She made the following order with respect to the plaintiffs’ interactions with the media:
a. Mr. Rogerson and all counsel retained by the plaintiffs were ordered to immediately stop all contact with the media and not to have any further conduct with the media, b. The plaintiffs were ordered to produce copies of any emails, texts, or other written communications related to this litigation between Mr. Rogerson or anyone on his behalf and the media, c. Mr. Rogerson was ordered to depose in an affidavit the full details of any oral communication he or anyone on his behalf had with any news organization or media outlet, d. The plaintiffs were ordered to produce all records related to online advertising about the defendant Mission that has been created or designed by Mr. Rogerson or anyone on his behalf.
[25] With respect to the motion regarding the plaintiffs’ failure to comply with discovery obligations, Justice Wilson ordered Mr. Rogerson to fully answer the undertakings no later than May 31, 2023. The responses to the written interrogatories were also to be delivered by May 31, 2023. The examination of discovery of Grace was to be completed by June 30, 2023.
[26] With respect to the issue of costs, Justice Wilson allowed Mr. Rogerson to file his cost submissions no later than May 24, 2023. Mr. Rogerson did not file his cost submissions by that date.
[27] Justice Wilson convened a case conference on June 28, 2023, at Mr. Rogerson’s request. He sought to schedule a motion for further productions from the defendants and the non-party Student Q. On the case conference the defendants’ counsel advised the court that Mr. Rogerson’s answers to the written interrogatories were deficient. The defendants also advised that they would be proceeding with a motion to compel the plaintiffs to provide the instruction letter to their expert witness as well as any documents relied on by the expert, and to advise of the factual assumptions made by the expert. The defendants also sought an order to compel Mr. Rogerson to produce the Children’s Aid Society (CAS) file, and to advise of any information he may have provided to CAS. The plaintiffs’ motion and the defendants’ cross motion were scheduled for August 14, 2023.
[28] With respect to the issue of the costs of the motion heard on April 28, 2023, Justice Wilson noted that Mr. Rogerson had failed to deliver his cost submissions by May 24, 2023. On the case conference on June 28, 2023, Justice Wilson advised Mr. Rogerson that if she was not in receipt of his written cost submissions, she would determine the costs for the motion based on the material she had received. On July 6, 2023, Mr. Rogerson sent an email to Justice Wilson’s assistant asking for confirmation that his cost submissions had been received. No costs submissions had been received by the court. Justice Wilson’s assistant inquired of defence counsel and was advised that no cost submissions had been received by them. On July 18, 2023, Mr. Rogerson advised Justice Wilson’s assistant that his cost submissions were completed and on the way. The plaintiffs’ cost submissions were sent by email to the court on July 19, 2023. The materials consisted of hundreds of pages in three volumes. Justice Wilson considered the plaintiffs’ cost submissions notwithstanding the fact that they were not delivered on time. She found most of the material to be irrelevant to the issue of costs.
[29] By endorsement dated July 25, 2023, Justice Wilson made her order with respect to the costs of the April 28, 2023 motions. She awarded costs to the defendants on a substantial indemnity basis, fixed in the amount of $75,000. In her cost endorsement, Justice Wilson stated as follows:
[20] In my view, the conduct of Mr. Rogerson constitutes a flagrant disregard for orders of this Court. He has intentionally breached court orders and has failed to complete discoveries so the action can move forward. The multiple, intentional breaches of court orders and the refusal of the Plaintiffs to complete the discoveries and move the action forward in a reasonable fashion has delayed the action and necessitated yet another motion on this file. This conduct has resulted in increased costs to defence counsel unnecessarily. When a judge of this court orders a party to cease a certain activity and the party refuses to comply with the order for his or her own gain, that conduct cannot be countenanced and mandates a higher level of costs. Parties, in particular parties who are also barristers, cannot play fast and loose with the Rules of Civil Procedure and expect to do so without consequence. In my view, the conduct is reprehensible as described in *Young v. Young*, [1993] 4 S.C.R. 3 and in *Mars Canada Inc. v. Bemco Cash & Carry Inc.*, 2018 ONCA 239, and costs on a substantial indemnity basis are warranted.
[30] The plaintiffs’ motion and the defendants’ cross-motion did not proceed on August 14, 2023. Instead, Justice Wilson convened a case conference on that date. Mr. Rogerson sought an amendment to the timetable to allow him to cross examine the mother of Student Q. The defendants also raised the issue of the plaintiffs’ leave to appeal of Justice Wilson’s order of May 19, 2023 and her cost decision dated July 25, 2023. Justice Wilson ordered Mr. Rogerson to serve all notices for leave to appeal by August 14, 2023 and to serve all notices of appeal by the end of August 15, 2023. The cross-examination of Student Q’s mother was scheduled for August 17, 2023. The cross-examination was limited to four hours. The motions that had been scheduled for August 14, 2023 were adjourned to September 22, 2023.
[31] Mr. Rogerson requested a further case conference before the return date of the motions. The case conference was scheduled for September 18, 2023. Mr. Rogerson sought an order for an additional eight hours for the cross-examination of Student Q’s mother. Justice Wilson did not grant Mr. Rogerson’s request. She ordered that if there were further proper, relevant questions that Mr. Rogerson wished to ask of Student Q’s mother he may send written interrogatories of no more than 50 questions. The answers or refusals were to be delivered by September 21, 2023. The motion was expected to proceed as scheduled on September 22, 2023.
[32] The plaintiffs’ motion record was 5 volumes and more than 2,000 pages. The material included reference to prior court appearances, the behaviour of defence counsel, allegations of misconduct of the defendants and counsel and criticism of other judges who had managed the action. Justice Wilson noted that much of the material filed was incomprehensible. She directed Mr. Rogerson to file a compendium hyper linked to the documents he would be referring to in argument. He failed to do so. He also failed to file a factum. Mr. Rogerson requested an adjournment of the motions to allow time to file a compendium or further materials. Justice Wilson did not adjourn the motions.
[33] The motions were argued on September 22, 2023. Justice Wilson dismissed the plaintiffs’ motion for further productions. She was satisfied that the relevant school records had been produced. She allowed the defendants’ motions and ordered the plaintiffs to provide the instructional letter to its expert along with a description of the factual assumptions on which the opinion was based.
[34] Justice Wilson made the following comment with respect to the conduct of the litigation:
These motions have taken up an inordinate amount of the Court’s time. They are motions for production and this case has been ongoing for more than 4 years. That is unacceptable. A party to a lawsuit has an obligation to produce relevant documents in a timely fashion. In this case, the Defendants have had to write many, many letters and emails in an effort to obtain compliance with undertakings from an examination or discovery that took place 2 years ago. I have made an order for the written interrogatories to be answered and the evidence before me is that my order has not been complied with.
As I stated at the hearing of these motions, the failure of Mr. Rogerson to comply with undertakings and with orders of this court is not acceptable. He is the Plaintiff in this action as well as a practicing lawyer in Ontario and the onus in on the Plaintiff to move an action forward in an efficient fashion. The Plaintiff has an obligation to produce evidence in support of a case and to disclose all relevant documentation. A lawsuit is not a game of cat and mouse, where parties can breach court orders intentionally and make it as difficult as possible for opposing parties and counsel to deal with the merits of a claim.
[35] Justice Wilson stated that if the parties could not agree on the costs of the motions that were argued on September 22, 2023, they were to advise her assistant.
[36] In October 2023, the defendants brought a motion to dismiss the action due to the plaintiffs’ failure to pay outstanding costs and to comply with the May 19, 2023 production order. A case conference was convened at the request of the defendants to schedule the motions. Because Justice Wilson’s earlier orders were under appeal, she did not schedule the motion, at that time.
[37] On January 10, 2024, the Divisional Court dismissed the plaintiffs’ leave to appeal applications. The Divisional Court fixed costs of $10,000 payable to the defendants. No appeal was taken of the Divisional Court decision.
[38] Following the Divisional Court’s decision, the defendants requested a case conference to schedule their motion to dismiss the plaintiffs’ action. The case conference was scheduled for March 8, 2024. A few days before the case conference, Mr. Rogerson requested an adjournment advising that he had pneumonia. No medical note was provided by Mr. Rogerson. He advised Justice Wilson that he was working at a “low level” and may have difficulty in answering her questions. Given that the case conference was not dealing with any substantive issues, Justice Wilson did not adjourn the case conference. In her endorsement dated March 8, 2024, Justice Wilson stated that she expected Mr. Rogerson to comply with the production order she made on May 19, 2023, and to pay the outstanding costs awards within 7 days. The next case conference was scheduled for March 26, 2024.
[39] On the return of the case conference, Mr. Rogerson advised that he is now acting on his own behalf as well as on behalf of the minor plaintiff, Grace. In her endorsement dated March 26, 2024, Justice Wilson granted leave to the defendants to bring the motion seeking to have the action dismissed or stayed. Justice Wilson ordered that the motion must proceed before any other motions.
[40] Mr. Rogerson filed an affidavit sworn March 26, 2024. He deposes that he had not paid the cost awards because of financial problems and his health issues. Mr. Rogerson failed to provide any evidence of his impecuniosity. With respect to his health issues, Mr. Rogerson deposes that he has suffered the effects of long term Covid, diabetes and pneumonia. Mr. Rogerson attached the letter from Phillip Miller clinical psychologist dated October 25, 2023. Dr. Miller states that Mr. Rogerson has slow information processing capacity, short term memory problems and organizational impairment secondary to depression and possibly some aging factors. Mr. Rogerson also attached the letter from Robert Ting dated December 18, 2023. He stated that Mr. Rogerson is under his care for several long-term medical issues. At the time of the letter, Mr. Ting was treating him for pneumonia. Dr. Ting stated that Mr. Rogerson was currently unfit to work.
[41] In his affidavit, Mr. Rogerson also states that he “had no faith in the case management judge’s impartiality and little faith in her understanding and application of legal principles, either in a balanced way, or at all.” He deposes that it was his intention to bring a motion for Justice Wilson’s removal as case management judge.
[42] On April 30, 2024, Justice Wilson sent an email stating that she would hear the defendants’ motion on May 13 or 15, 2024. No response was received from the plaintiffs. The defendants requested May 15, 2024. By email sent May 6, 2024, Justice Wilson advised the parties that the motion would proceed on May 15, 2024, at 2 p.m.
[43] On May 7, 2024, Justice Wilson released her cost endorsement with respect to the motions that were argued on September 22, 2023. Mr. Rogerson had argued that any further cost order would be a “crippling blow” and would enable the defence to put an end to the case. No evidence was put before the court with respect to his impecuniosity. Justice Wilson awarded costs of the motion to the defendants fixed at $60,000 inclusive. The costs were payable forthwith.
[44] In her endorsement, Justice Wilson made the following comments with respect to Mr. Rogerson’s conduct of the action:
[7] The conduct of Mr. Rogerson has not changed over the course of this action. Mr. Rogerson has continued to refuse to comply with the Rules concerning materials and timelines for motions. I have had to convene countless case conferences to deal with issues that ought to have been worked out between counsel. […] There were multiple case conferences required as a result of the conduct of Mr. Rogerson. He was given numerous accommodations by the Court, yet he ignored my directions concerning the materials filed for the Plaintiffs’ motion. [….]
[9] On the initial motion that I heard after assuming the role of case management judge, I ordered costs payable by Mr. Rogerson on a substantial indemnity basis. In doing so I commented on the “flagrant disregard for orders of this Court”, “intentionally breached Court orders”, “multiple intentional breaches of Courts orders”, “conduct cannot be countenanced and mandates a higher level of costs” to reference a few. Those comments are equally applicable at this point. Mr. Rogerson seems to be of the incorrect view that he can act as he wishes, and there are no consequences of unacceptable behaviour. As I have pointed out previously, Mr. Rogerson is a barrister and solicitor; he is not the traditional self-represented individual who is unfamiliar with the law and the Rules. For reasons that are certainly not clear to me, he has chosen to attempt to delay this action from moving forward and to conduct the litigation in an abusive fashion. This action was scheduled to go to trial in the spring of 2020 and would have but for the pandemic and the temporary suspension of trials. That is four years ago and in my time as the case management judge, I have issued directives, implements timetables, heard motions and issued written reasons, all in an effort to move this case forward to adjudication. Mr. Rogerson has appealed orders, failed to comply with orders and evinced an attitude of disregard for the Court process. That is unacceptable.
[45] The defendants’ motion to dismiss the plaintiffs’ action was scheduled for May 15, 2024 at 2 pm. Twenty minutes before the start of the hearing, Mr. Rogerson submitted a case conference request form. Mr. Rogerson states that he seeks a timetable for a cross motion to terminate case management or remove Justice Wilson as the case management judge, and to disqualify all partners and associates of the firm Paliaire Roland from continuing to act for the defendants. He also seeks to set aside the orders of Kimmel J. which he states purports to prevent or impede the plaintiffs from exercising their rights to gather evidence needed to prosecute the action. In the reasons for the request attached to the form, Mr. Rogerson states that Justice Wilson demonstrated a “manifest pattern of partiality; uneven scrutiny; demonstrable bad faith [….] effectively appearing to a reasonable person unconnected with case, as a mouthpiece for Mrs. Rothstein’s team”.
[46] At four minutes before the start of the motion, Mr. Rogerson sent an email which attached the transcripts of the case conference on March 8, 2024, and March 26, 2024, and a copy of his affidavit sworn March 26, 2024. He did not file a compendium or factum for use on the motion.
Discussion and Analysis
[47] The defendants submit that the plaintiffs are in continuing breach of the following orders of the court:
a. The order of Justice Wilson dated May 19, 2023, which declared that Mr. Rogerson was in breach of the Kimmel Order and required the plaintiff to make production and disclosure with respect to plaintiffs’ interactions with the media; b. The order of Justice Wilson dated July 25, 2023, which ordered the plaintiffs to pay the substantial indemnity costs of the defendants of the motion giving rise to the May 19, 2023, order in the amount of $75,000 plus H.S.T.; c. The order of Justice Wilson dated September 22, 2023 to advise of the material provided to CAS and to write to CAS for production of the complete file; d. The order of the Divisional Court dated January 10, 2024, which ordered the plaintiffs to pay the defendants’ costs in the amount of $10,000; e. The order of Justice Wilson dated March 8, 2024, which required the plaintiffs to cure their contempt of the May 19, 2023 and July 25, 2023 orders within 7 days. f. The Order of Justice Wilson dated May 7, 2024, which ordered Mr. Rogerson to pay the substantial indemnity costs of the defendants for the September 22, 2023 motion in the amount of $60,000.
[48] The total of the outstanding cost awards is $145,000. The plaintiffs concede that they have not paid the cost orders.
[49] The defendants bring this motion to strike the plaintiffs’ action under Rule 57.03(2) and 60.12. Rule 57.03(2) provides as follows:
Where a party fails to pay the costs of a motion as required under subrule (1), the court may dismiss or stay the parties’ proceeding, strike out the party’s defence or make such other order as is just.
[50] Rule 60.12 provides as follows:
Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,
a. Stay the party’s proceeding; b. Dismiss the party’s proceeding or strike out the party’s defence; or, c. Make such other orders as is just.
[51] In serious cases of breaches of court orders and disregard for the court’s processes, Rules 57.03(2) and 60.12 permit an action to be determined for procedural reasons and not on its merits. As noted by Justice Nordheimer in *Bottan v. Vroom*, [2001] O.J. No. 2737 (ONSC), affirmed *[2002] O.J. No. 1383 (ONCA)*:
Finally, the submission that the striking out of pleadings is not justified because it results in a determination of an action other than on its merits is one which is contradicted by the very existence of rules 57.03(2) and 60.12. The rationale for those rules is predicated on the fact that there will be situations where a party’s position ought to be determined for procedural reasons arising from the failure of the party to abide by orders made by the court. If it was the case that the merits of the matter always had to be determined before such remedies could be imposed, there would be little room for the effective application of either of these rules: at para. 26.
[52] In *Rana v. Unifund Assurance Company*, 2016 ONSC 2502 (Rana), Justice Dunphy outlined the following principles that the court is to apply when exercising its discretion under Rules 57.03(2) and Rule 60.12:
(a) “Where there has been non-compliance with an order of the court, the court should be alive to the possibility that its process is being abused; failing to act may deprive the moving party of justice according to law and risks rendering the court a paper tiger”. (b) “The right of access to the courts must be accompanied by the responsibility to abide by the rules of civil procedure and to comply with orders of the court – to exempt impecunious parties from the enforcement of costs orders when made would amount to granting ‘carte blanche to continue to ignore the rules and orders of the court and take unsupportable steps in the action without fear of consequences’”. (c) “The court ought not to sit in appeal of prior costs awards – the respondent will have had the opportunity to make submissions about impecuniosity at the prior hearings that resulted in the costs orders and seeking to relieve against prior costs orders constitutes a collateral attack on orders previously made”. (d) “The court may have regard to a pattern of unnecessary and unreasonable steps taken in the proceeding, including appealing numerous orders without chance of success or knowing the risk thereby imposing costs upon the other party”. (e) “If the orders of the court are ‘cavalierly ignored’ and if a litigant ‘continuously fails to comply with her obligations as a litigant and then fails to abide by the costs consequences attendant upon that behavior, the court is justified in bringing some finality to the action’”. (f) “Impecuniosity is not a shield for unreasonable conduct of litigation and a dismissal order may be made even if it resolves the matter on procedural rather than substantive grounds” (g) “Self-represented litigants, while entitled to some accommodation and assistance ensure a fair hearing, are not entitled to abuse the system or the party opposite and failure to enforce orders once made against self-represented parties is unfair to the parties opposite and undermines respect for the court and the civil justice system”. (h) “Courts usually talk in terms of prejudice that cannot be compensated for by costs. But, at some point, costs themselves become an inadequate form of compensation for prejudice, especially where the party on whom they are imposed refuses to pay them”: Rana, at para. 51.
[53] Mr. Rogerson argues that he has not refused to pay the cost awards but is currently unable to pay the whole amount. He has offered to pay $5,000 a month. I note that Justice Wilson or the Divisional Court did not make an order permitting the payment of the cost awards over time.
[54] Mr. Rogerson in his affidavit sworn March 26, 2024, states that the plaintiffs have been unable to pay the cost awards because of financial hardship and health issues. This position is not new. Mr. Rogerson made similar submissions to Justice Kimmel in April 2020. In her endorsement dated May 21, 2020, Justice Kimmel noted that “there was no evidence of the impecuniosity or of any dire financial or personal health circumstances of the plaintiffs in this case that could support the extraordinary result of no costs being awarded against them, especially in light of the course of conduct that they adopted in relation to the affidavits in issue”: *Rogerson v. Havergal*, 2020 ONSC 3172, at para. 27.
[55] Similar arguments of financial hardship were also made to Justice Wilson. With respect to the costs for the September 22, 2023 motions, Mr. Rogerson argued that any further cost order would be a “crippling blow” and would enable the defence to put an end to the case. No evidence was put before the court with respect to his impecuniosity. As noted by Justice Wilson in her cost endorsement dated May 7, 2024, the fact that Mr. Rogerson practices downtown with an office in Barrie does not support his allegation that payment of a cost order would be a “crippling blow”.
[56] Although Mr. Rogerson, in his affidavit dated March 26, 2024, states that he has financial problems, he does not provide any evidence with respect to the plaintiffs’ assets, level of income or ability to borrow. The only evidence with respect to his ability to pay the cost awards is: “I simply advise the court that I cannot make immediate payment of the full amount at this time”.
[57] The evidence put forward by the plaintiffs with respect to Mr. Rogerson’s health issues is also lacking. He attached to his affidavit two brief letters from Phillip Miller clinical psychologist dated October 25, 2023, and Dr. Ting dated December 18, 2023. The letters do not set out how the medical conditions may have affected his ability to work, or for how long his ability to work may be affected. There is no current medical report that deals with Mr. Rogerson’s ability to work.
[58] If Mr. Rogerson had properly put evidence of impecuniosity before the court, it would not excuse his failure to comply with the cost orders. He argued financial hardship before Justices Kimmel and Wilson. The cost order of Justice Wilson was unsuccessfully appealed to the Divisional Court. The ongoing argument that the plaintiffs cannot pay the cost awards because of financial hardship and health issues, is a collateral attack on the cost orders.
[59] As noted by Justice Dunphy in Rana, impecuniosity cannot be used as a shield. The plaintiffs cannot conduct the action in a way that will increase the costs to the defendants and then argue that they cannot pay costs because of financial hardship: Rana, at para. 51. As noted by Justice Myers a lack of resources is not a licence for inappropriate litigation conduct. “To accept that argument would encourage the type of behaviour that occurred in this case without any sanction by the court. The situation in which the plaintiffs find themselves is of their own making”: Mother Doe v. Havergal, at para. 96.
[60] In addition to the plaintiffs’ failure to pay the cost awards, I have considered the following conduct on the part of the plaintiffs:
a) The plaintiffs filed an affidavit which attached Student Q’s confidential School Records as well as other materials that could identify Student Q and/or her family, in clear breach of the Penny Order. b) In the Companion Action, the plaintiffs sent the statement of claim and the affidavit of Mother Doe to the Toronto Star, which violated the interim publication ban in Justice Myers’ April 6, 2020 order, and was contrary to the intent of the Penny Order. c) The plaintiffs contacted media outlets in Australia and provided information about the Toronto litigation in clear breach of the Kimmel Order. The plaintiffs do not deny that they contacted the media but take the position that they were not in breach because they did not send anything in writing. As noted by Justice Wilson, the Kimmel Order prohibits the parties from providing any comments or statements about the case to the media and is not restricted to statements made in writing. d) Justice Wilson’s order dated May 19, 2023, found the plaintiffs to be in breach of the Kimmel Order and ordered the plaintiffs to make production and disclosure with respect to the information provided to the media outlets. The plaintiffs are in breach of the order to make production and disclosure with respect to the breach of the Kimmel Order. e) The plaintiffs failed to complete the discoveries and move the action forward in a reasonable manner. This resulted in further delay and expense to the defendants. As noted by Justice Wilson, the plaintiffs did not agree on matters that ought to have been agreed on, which resulted in case conferences or motions. f) The plaintiffs failed to comply with the Rules concerning materials and timelines for motions. This required further case conferences. Mr. Rogerson failed to comply with the directions of the court with respect to the filing of materials. He failed to provide compendiums or factums for the motions. The materials provided were voluminous and consisted of largely irrelevant materials. g) Mr. Rogerson has conducted himself in a disrespectful manner. He made unfounded allegations of serious misconduct against two of the judges who had been assigned to case manage the action. Mr. Rogerson threatened a recusal motion against Justice Wilson and accused her of being a “mouthpiece” for the defendants’ counsel. h) Mr. Rogerson reported defendants’ counsel to the Law Society and made unfounded allegations of misconduct.
[61] I find that Mr. Rogerson’s conduct throughout the action has been vexatious and disrespectful to opposing counsel and to the court. He has evinced an attitude of disregard for the Court process. The plaintiffs failed to comply with orders of the court and failed to comply with their production and discovery obligations in accordance with the Rules. This has resulted in delays and increased costs to the defendants. The plaintiffs’ conduct has consumed an inordinate amount of judicial resources.
[62] Mr. Rogerson is acting on his own behalf and as litigation guardian for the minor plaintiff, Grace. Before dismissing a minor’s action because of procedural non-compliance, I must balance between having the minor plaintiff’s claim adjudicated on its merits and ensuring that the administration of justice is not undermined by non-compliance with the Rules and court orders: *Eskandari v. Raizman*, 2023 ONSC 1674, at paras. 8, 21 and 25.
[63] In conducting the balancing exercise, I have considered Grace’s discovery evidence. Her discovery was conducted on June 23, 2023, when she was 10 years of age. Justice Wilson noted in her endorsement dated September 22, 2023 that Grace testified that she has not seen Student Q since she left Havergal in December 2019 and that she is not bothered by her and never thinks about her. Counsel for the defendants provided the following excerpt from Grace’s discovery transcript:
714 Q. Okay. So we've received copies of your school records from Bannockburn and it looks like you're doing very well academically. You're a very strong student. Congratulations. A. Thank you.
Q. And it also sounds like you're getting along well with your teachers, is that right? Yeah. And you've got a good group of friends at Bannockburn and you like the school? A. Yes.
Q. Yeah. And so I know that these incidents with [Student Q] happened a few years ago now. Do you think much about [Student Q]? A. No. Sometimes I just forget that she exists.
Q. So is it fair to say that you're not particularly bothered by [Student Q]? A. I'm not bothered at all.
Q. No. And do you ever think about [Student Q]'s bullying? A. No. I forgot it existed along with her.
Q. Yeah. And when were you reminded again about it? A. Probably when I was reminded that this was going to happen.
Q. Right. And so have your experiences with [Student Q] affected you in any way? A. I don't think so.
Q. No. They haven't affected your ability to do your schoolwork? A. No.
Q. No. Have they affected your ability to make friends? A. No.
Q. No. Have they affected your ability to get along with your teachers? A. No.
Q. No. Have they affected your ability to do any activities? A. No.
Q. Have they affected your relationship with your parents? A. No.
Q. No. Not with your mom? A. No.
Q. Not with your dad? A. No.
[64] Mr. Rogerson argued that the excerpt provided by the defendants was not in context. He provided the complete transcript of Grace’s discovery. I reviewed the complete discovery transcript. I am of the view that Grace was treated respectfully throughout the discovery and there was no attempt to mislead or confuse her. I am satisfied that at the time of her discovery, she was not experiencing any ongoing effects of the allegedly bullying.
[65] I am also satisfied that the plaintiffs’ non-compliance with the Rules and court orders has undermined the administration of justice. The plaintiffs have shown a complete disregard for the court processes. The plaintiffs’ conduct has resulted in delays and increased costs to the defendants. The cost awards made in this action do not appear to have any effect on the plaintiffs. The cost awards have not been paid and have not resulted in any change to the plaintiffs’ conduct.
[66] Mr. Rogerson argues that regardless of what has gone on in the past that the action has merit and ought to proceed to trial. He suggests a tight time schedule that is peremptory on the plaintiffs. He states that he is prepared to abide by the timeframes. Mr. Rogerson has not demonstrated an ability or willingness to meet timelines. He has been provided with many accommodations by the court and consistently failed to comply. As noted by Justice Wilson, Mr. Rogerson’s conduct of this action has not changed. I expect that a further accommodation will not make any difference.
[67] In balancing between having the minor plaintiff’s claim adjudicated on its merits and ensuring that the administration of justice is not undermined, I conclude that fairness dictates that the plaintiffs’ action including the action brought by the minor plaintiff, must be stayed. In these circumstances, it would be unfair to the defendants to allow the action to continue.
[68] Although I am inclined to order an immediate dismissal of the plaintiffs’ action, such an order is to be a last resort: Rana, at para. 58. The plaintiffs have been given several opportunities to comply with the court orders and failed to do so. However, I am prepared to provide one last chance to the plaintiffs to comply.
[69] I order that the plaintiffs’ action is immediately stayed pursuant to R. 57.03(2) and 60.12. The stay shall be lifted if the plaintiffs pay the outstanding cost orders within 30 days of the date of this endorsement. This does not include interest which is not waived but is not required to be paid to preserve the action: *Dalton v. Woszczyna*, 2023 ONSC 3367, at para. 67. If the costs are not paid by that date, the plaintiffs’ pleadings shall be struck without any further notice. The defendants shall be entitled to apply for an order dismissing the action upon filing an affidavit certifying non-payment of the orders.
[70] I am reserving on the issue of the costs of this motion. The defendants were successful and are presumptively entitled to their costs. If the defendants are seeking costs, and if there is no agreement between the parties, the issue will proceed in writing. The defendants are directed to deliver their written submissions not exceeding three pages, excluding bills of cost and caselaw within 45 days of the date of this endorsement. The plaintiffs may file their written cost submissions in response on the same basis within 30 days of receiving the defendants’ cost submissions.
Disposition
[71] For the reasons set out above, I make the following order:
a. The action is stayed pursuant to Rule 57.03(2) and R. 60.12 of the Rules of Civil Procedure; b. The plaintiffs are prohibited from bringing any further motion in the proceeding without leave of the court pursuant to R. 37.16 of the Rules of Civil Procedure; c. The stay of proceeding shall be lifted upon the plaintiffs paying to the defendants the full amount of outstanding cost orders, totalling $145,000 within 30 days of the date of this endorsement; d. If the plaintiffs fail to pay the outstanding cost orders within 30 days of the date of this endorsement, the plaintiffs’ pleadings shall be struck without any further notice to the plaintiffs. The defendants shall be entitled to apply for an order dismissing the plaintiffs’ action upon filing an affidavit certifying non-payment of the cost orders; e. The defendants are presumptively entitled to their costs of this motion. If there is no agreement with respect to costs, the issue will proceed in writing.
Chalmers J. Date: July 12, 2024