CITATION : Foley v. Victoria London Health Sciences Centre, 2024 ONSC 4978
COURT FILE NO.: CV-18-00603786-0000 CV-18-00592072-0000 DATE: 20240909
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Roger Foley Plaintiff
– and –
Victoria Hospital London Health Sciences Centre, South West Local Health Integration Network, Centre for Independent Living in Toronto, His Majesty the King in right of Ontario, the Attorney General of Ontario, and the Attorney General of Canada Defendants
Counsel: Roger Foley, self-represented 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 IN WRITING: September 6, 2024
Robert Centa J.
Endorsement
[1] The plaintiff, Roger Foley, has not complied with the terms of my earlier order on costs. For the reasons that follow, his action is dismissed against all remaining defendants.
[2] I am the case management judge for this proceeding. On December 19, 2023, I issued reasons for decision striking out the plaintiff’s claim in its entirety. [1] I will not repeat the reasons for that decision, but I rely on those reasons and they inform my decision to dismiss the action.
[3] I struck out the statement of claim without leave to amend and dismissed the action against the Attorney General of Canada, the Attorney General of Ontario, and His Majesty the King in Right of Ontario. I granted Mr. Foley leave to amend his statement of claim to advance some but not all the claims against the London Health Sciences Centre, South-West Local Health Integration Network, and the Centre for Independent Living in Toronto, subject to any terms that I might order in respect of costs.
[4] In my reasons for decision, I asked the parties to identify whether there were any other unpaid costs orders from any earlier steps in either of the two actions, including any applications for leave to appeal. I also asked the hospital, SW LHIN, and CILT to make submissions regarding whether I should make any order requiring that all outstanding costs orders (including the costs of the motion to strike) be paid before Mr. Foley received leave to file a further amended pleading. [2] I expressly asked Mr. Foley to address the defendants’ submissions regarding terms in his responding submissions on costs:
[198] Each defendant may email its costs submission of no more than five double-spaced pages to my judicial assistant on or before January 5, 2024. Mr. Foley may deliver a single responding submission on costs not to exceed 15 double-spaced pages on or before January 19, 2024.
[199] In its submissions, CILT should address its request, if any, for costs arising from Mr. Foley’s motion to disqualify its counsel, which I dismissed as frivolous and vexatious in reasons for decision reported as Foley v. Victoria Hospital London Health Services Centre, 2023 ONSC 4978. Mr. Foley should address this issue in his responding submissions.
[200] I ask each of the parties to indicate whether or not there are any other unpaid costs orders from any other steps in either the first action or this action, including any applications for leave to appeal.
[201] I ask the hospital, SW LHIN, and CILT to make submissions regarding whether or not I should order that all outstanding costs orders (including the costs of this motion) be paid before Mr. Foley has leave to file a further amended pleading. Mr. Foley should address these submissions in his response.
[5] The parties were not able to resolve issue of costs. Canada did not seek its costs of the proceeding. Ontario and the remaining defendants delivered their submissions on costs as directed. Each of the remaining defendants sought costs and an order that the action would be dismissed unless all outstanding costs orders be paid by a deadline.
[6] On January 12, 2024, Mr. Foley indicated that his former counsel, Ken Berger, was no longer representing him. Mr. Foley requested an extension of time to prepare his submissions. I granted Mr. Foley’s request for an extension and set March 29, 2024, as the date for his submissions.
[7] On March 29, 2024, Garifalia Milousis advised the court that she was now counsel of record for Mr. Foley. Ms. Milousis delivered costs submissions that focussed primarily on a request for an order that Mr. Berger be ordered to pay personally any costs ordered in favour of the defendants. In the alternative, Mr. Foley submitted that there should be no costs awarded. Mr. Foley provided no evidence regarding his ability to pay any costs order. Although Mr. Foley was represented by counsel, and despite my explicit request that he do so, the submissions did not address the remaining defendants’ submission that Mr. Foley’s action should be dismissed unless he paid all outstanding costs by a deadline.
[8] I rendered my decision on costs on May 17, 2024. [3] I will not repeat my reasons for decision but they inform my decision to dismiss Mr. Foley’s action.
[9] I dismissed Mr. Foley’s request that Mr. Berger be ordered to pay any costs award personally. I did not accept Mr. Foley’s submission that no costs should be ordered. Instead, I ordered Mr. Foley to pay a total of $85,449.13 to the defendants comprising the following awards (inclusive of HST and disbursements):
a. $9,500 to Ontario; b. $27,911.23 to London Health Sciences Centre; c. $26,813.54 to SW LHIN; and d. $21,224.36 to CILT comprising $4,473.67 for the recusal of counsel motion [4] and $16,750.69 for the balance of the proceeding.
[10] I also noted that Mr. Foley had not complied with prior court orders that ordered him to pay $15,000 in costs to the defendants. The outstanding cost orders were as follows:
a. $10,000 (Lederer J., March 16, 2020); and b. $5,000 (Swinton, Backhouse, and Mandhane JJ., April 27, 2022).
[11] I granted the defendants’ request that the action be stayed pending payment of these amounts and that the action should be dismissed if the amounts remained unpaid by August 30, 2024. I explained my decision as follows:
[69] I am concerned that Mr. Foley has not complied with two prior orders of the court. Indeed, Mr. Foley has failed to comply with the order of Lederer J. for over four years. He has also failed to comply with the order of the Divisional Court for over two years despite that order explicitly making the costs payable within 30 days. Compliance with court orders is not optional. Court orders must be taken seriously.
[70] It would be unfair to the defendants to require them to answer Mr. Foley’s claims while the cost orders remain unpaid.
[71] I accept that impecuniosity is a factor to take into consideration when considering the consequences of a party’s failure to pay a costs order. Mr. Foley, however, filed no evidence to demonstrate his impecuniosity. He did not request an extended period of time to pay either the amounts outstanding or these costs orders. Moreover, in his submissions he stated that he had paid over $200,000 in legal fees to his own lawyer. In my view, there is insufficient evidence before me to support an inference that Mr. Foley is impecunious.
[72] In considering the imposition of terms, the goal is to strike a balance between enforcing court orders and providing Mr. Foley a further opportunity to advance potentially meritorious claims. The outstanding costs orders are for a significant amount and the bulk of unpaid amount has been outstanding for over four years. There is no adequate evidence of impecuniosity. Mr. Foley has received a significant indulgence from the court in allowing him a third chance to amend his statement of claim. Fairness requires action to restore respect for the integrity of court’s process while giving Mr Foley one last chance to demonstrate his compliance with court orders and to advance his claim. [internal citations omitted]
[12] I accepted the submissions of the remaining defendants that Mr. Foley should be required to pay all outstanding costs orders by a deadline and before receiving leave to amend his claim. I made the following order:
a. Mr. Foley’s action is stayed pursuant to rules 57.03(2) and 60.12 of the Rules of Civil Procedure; b. Mr. Foley may not bring any further motions in the proceeding without my leave as case management judge, pursuant to rule 37.16 of the Rules of Civil Procedure; c. The stay shall be lifted once Mr. Foley pays to the defendants in full: i. The costs ordered by Lederer J. on March 16, 2020; ii. The costs ordered by the Divisional Court (Swinton, Backhouse, Mandhane JJ.) on April 27, 2022; iii. The costs ordered by me in these reasons for decision. d. If the amounts listed above are not paid in full by August 30, 2024, Mr. Foley’s action shall be dismissed upon request to me by any defendant upon filing an affidavit certifying non-payment of any of the amounts ordered above to be paid; e. If the amounts listed above are paid in full, Mr. Foley may deliver a fresh as amended statement of claim consistent with my reasons for decision on the motions to strike on or before September 30, 2024.
[13] Under the terms of my order, Mr. Foley was required to pay $100,449.10 in costs to the defendants on or before August 30, 2024. It appears that Mr. Foley did not appeal this order.
[14] On September 5, 2024, counsel for hospital wrote to the court supported by an affidavit certifying that Mr. Foley had not paid any of the costs that I had ordered him to pay to the hospital, SW LHIN, or CILT by the deadline of August 30, 2024. [5] The hospital, SW LHIN, and CILT jointly requested that the action be dismissed in accordance with my earlier order.
[15] Neither Mr. Foley nor his counsel sought a case management conference before the August 30, 2024, deadline for payment. Nevertheless, I provided Mr. Foley and his counsel with an opportunity to make provide submissions in response to the remaining defendants’ request that the action be dismissed in accordance with my prior order. On September 6, 2024, Mr. Foley provided an email, a letter, and some attachments, which I have reviewed.
[16] First, and most importantly, Mr. Foley does not dispute that he did not pay the amounts he was ordered to pay to the hospital, SW LHIN, or CILT on or before August 30, 2024. In my view, that fact is dispositive of the issue of whether the action should be dismissed.
[17] In his letter, Mr. Foley makes submissions regarding his ability to pay the costs order. I do not give any weight to these submissions. Mr. Foley was represented by counsel (Ms. Milousis) when he made his submissions on costs. With the advice of counsel, he chose to put no evidence before the court regarding his ability to pay. That was the time for him to provide such evidence.
[18] Mr. Foley asks for a further 90-day extension of time to pay the costs order. He states that he has raised almost $19,000 to pay towards the costs order. [6] Assuming this to be the case, Mr. Foley has raised less than 20% of the amount he owes under the costs order. I am not prepared to grant any further extensions of time. Mr. Foley has costs orders that have remained unpaid for over four years. He is not particularly close to being able to pay the amount of costs that he owes to the remaining defendants. I am not persuaded that he will comply with the prior orders in a timely way and would not exercise my discretion to grant a further extension of time.
[19] Indeed, Mr. Foley appears to acknowledge that it is unlikely that he will be able to comply with the prior orders even with an extension. He requests that “Should I still fall short after this extension, I request that any remaining funds be considered as costs in the cause, allowing me to proceed with the fresh claim and access natural justice.” I do not accept this submission. For the reasons set out at length in my prior reasons for decision, it would be entirely inappropriate to convert the unpaid costs orders to costs in the cause.
[20] The hospital, SW LHIN, and CILT have satisfied me that Mr. Foley did not comply with the terms of my costs order dated May 17, 2024. Mr. Foley has not persuaded me that the order should be adjusted or to exercise my discretion to extend the time for payment.
[21] I dismiss the action. Counsel for any of the hospital, SW LHIN or CILT may provide a draft order to my judicial assistant for my review and signature.
Robert Centa J.
Released: September 9, 2024
Footnotes
[1] Foley v. Victoria Hospital London Health Sciences Centre, 2023 ONSC 7155.
[2] Foley v. Victoria Hospital London Health Sciences Centre, 2023 ONSC 7155 paras. 200-201.
[3] Foley v. Victoria London Health Sciences Centre, 2024 ONSC 2848.
[4] Foley v. Victoria Hospital London Health Services Centre, 2023 ONSC 4978.
[5] The hospital did not provide any evidence regarding whether Mr. Foley had paid any costs to Ontario.
[6] Mr. Foley states that he has not been able to access these funds due to a dispute with the on-line donation processor. In my view, nothing turns on this issue. Even if he could access those funds, and even if he had paid those funds to the defendants, he would still not have complied with the costs order.