Court File and Parties

COURT FILE NO.: CV-22-89903 DATE: 2024/09/24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: COREY FOULEM, a person under disability by his Litigation Guardian, LORRAINE GILBERT FOULEM, LORRAINE GILBERT FOULEM and MICHAEL FOULEM, Plaintiffs

AND:

DISTRICT SCHOOL BOARD ONTARIO NORTHEAST AND NORTHEASTERN CATHOLIC SCHOOL BOARD, Defendants

BEFORE: Somji J.

COUNSEL: Michael Foulem, Self-Represented Lorraine Foulem, Self-Represented Lorraine Gilbert Foulem, as litigation guardian for Corey Foulem Steven Nicoletta for the Defendants

HEARD: September 24, 2024

Endorsement

[1] The defendants move for an order to strike the action brought by the plaintiffs and for partial indemnity costs of the action on the grounds that one, the plaintiffs failed to comply with the Order of Rees J requiring them to appoint a new lawyer or serve a notice of intention to represent themselves within 30 days, and two, failed to set down the matter for trial within six months after the close of the pleadings.

[2] The plaintiffs were served with the Notice of Motion for today’s proceedings and failed to file a response or attend court.

[3] The Office of the Public Guardian and Trustee does not take any position on the motion.

[4] Upon reviewing the materials filed and hearing submissions of counsel, the orders requested are granted for the reasons set out below.

Analysis

[5] The plaintiffs issued a statement of claim dated August 12, 2022, against the defendants alleging that the plaintiff Michael Foulem was subject to bullying by classmates and school staff between 2007 and 2021 while he attended Holy Family Catholic School and Kirkland Lake District Composite School. The claim sought general damages of $375,000, special damages of $5,000,000, and punitive damages of $500,000 dollars for Michael Foulem and $100,000 damages each for his mother Lorraine Foulem and his brother Corey Foulem, a person under disability, under the Family Law Act, R.S.O. 1990, c.F.3, as am.

[6] The defendants opposed the claims and filed a statement of defence and jury notice on September 28, 2022.

[7] On October 19, 2023, the parties agreed to a discovery plan. Examinations for discovery were subsequently confirmed for February 26 to 29, 2024. However, on February 20, 2024, plaintiff’s counsel Michelle F. Jorge advised that she would no longer be lawyer of record and the examination dates were vacated.

[8] To date, the examinations for discovery have not been rescheduled.

[9] Ms. Jorge subsequently obtained an order from the Honourable Rees J dated March 26, 2024, removing her as counsel of record (“Removal Order”). The Removal Order required the plaintiffs to appoint a new lawyer of record or serve a notice of intention to act in person within 30 days of receiving the Removal Order as per Rule 15.04(8) of the Rules of Civil Procedure. The Removal Order was served on the plaintiffs by regular mail and email on April 12, 2024.

[10] Defendants’ counsel followed up with a further email to the plaintiffs on April 19, 2024, reminding them of the requirements set out in the Removal Order and cautioning them that if they failed to follow through, he would be moving to dismiss the action. Defendants’ counsel did not receive a response to his email.

[11] On May 24, 2024, defendants’ counsel wrote to the plaintiffs advising that a motion had been scheduled for Tuesday November 12, 2024. Lorraine Foulem acknowledged receiving the documents from her former lawyer Ms. Jorge and indicated she would be hiring another lawyer. Defendants’ counsel replied asking that the new counsel contact him.

[12] Subsequent to that email, defendants’ counsel was informed that the November motion date was not available, and the matter was rescheduled for September 24, 2024. On May 27, 2024, almost four months ago, defendants’ counsel served the motion record again on the plaintiffs with a revised motion date of September 24, 2024. The plaintiffs did not respond.

[13] On September 12, 2024, defendants’ counsel wrote to the plaintiffs to remind them of the motion. On September 17, 2024, defendants’ counsel sent a confirmation form to the plaintiffs with respect to today’s appearance. On September 18, 2024, defendants’ counsel forwarded a bill of costs to the parties. On September 20, 2024, defendants’ counsel emailed Ms. Foulem asking if the plaintiffs had a new lawyer. The plaintiffs did not respond to any of the correspondence.

[14] I am satisfied that the plaintiffs were properly served with the motion materials and informed of today’s hearing date.

[15] The plaintiffs have not been in any further contact with defendants’ counsel since May 24, 2024, have not filed any responding materials, have not retained a new lawyer, and did not appear for today’s proceeding.

[16] Upon review of the materials filed, I find that the defendants have established that the plaintiffs failed to comply with the Removal Order and pursuant to Rule 15.04(9) of the Rules of Civil Procedure, the plaintiffs’ action is struck.

[17] I also find that the pleadings closed on September 28, 2022, almost two years ago, and the plaintiffs failed to set the matter down for trial within six months of the closing date as required to do so. Consequently, pursuant to Rule 24.01(4)(c) of the Rules of Civil Procedure, the plaintiffs’ action is dismissed for delay.

Costs

[18] Defendants’ counsel seeks costs on a partial indemnity basis in the amount of $13,612.97 for legal fees. Total Costs were approximately $20,000.

[19] Courts have broad discretion to determine whom costs should be paid and the quantum: s. 131(1) Ontario Courts of Justice Act, R.S.O. 1990, c. C.43, as am.

[20] In exercising their discretion, judges may consider the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and governing jurisprudence. I have considered these factors which include the following: the experience of counsel and rates charged, the amount an unsuccessful party could reasonably expect to pay, amounts claimed, and amount recovered, apportionment of liability, importance of issues, complexity of the proceedings, and the conduct of the parties.

[21] Defendants’ counsel filed a detailed bill of costs delineating the work performed. The file involved multiple defendants. Given the historical nature of the allegations, I find the matter is moderately complex and would have required considerable time on the part of counsel and their clients to gather the information necessary to respond to the allegations. In this regard, counsel submitted that his clients forwarded a considerable number of emails and documents to respond to the allegations, and these had to be reviewed and organized. This is consistent with the bill of costs which indicates a substantial portion of the fees went to preparing the affidavit of documents and communicating with the multiple clients.

[22] It is reasonable to infer that the issues were of importance to the defendants to protect their reputations as educational institutions.

[23] I find the rates for the three lawyers reasonable and the hours commensurate with the work performed.

[24] Upon inquiries by me with respect to duplication of billing, defendants’ counsel assured the court that given there was another similar file involving Corey Foulem (CV-22-00084330), counsel conducted the work where possible on each file in a lockstep manner to minimize billings. For example, if a letter was written on one file and a similar letter was required on the second file, counsel either did not bill for the second letter or billed it at a reduced amount.

[25] Ultimately, in determining quantum, the overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances rather than the amount of actual costs incurred by the successful party: Rule 57.01(1)(0.b) of the Rules of Civil Procedure; see also Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291 (C.A.) at paras 37-38; Deonath v. Iqbal, 2017 ONSC 3672 at paras. 20-21.

[26] I have no information before me from the plaintiffs about their ability to pay.

[27] Considering the relevant factors including the defendants’ success on the motion, the complexity of the file, the importance of the issues, the reasonable time and rates charged to prepare for the motion, I find that partial indemnity costs in the fixed amount of $13,612.97 is fair and reasonable in the circumstances.

Order

[28] There will be an Order that:

a. the action be dismissed; and

b. the Plaintiffs Michael Foulem and Lorraine Foulem in her personal capacity and in her capacity as the litigation guardian for Corey Foulem, pay costs of the motion and of the action to the defendants in the amount of $13,612.97 within 60 days of the decision.

Somji J. Date: September 24, 2024

COURT FILE NO.: CV-22-89903 DATE: 2024/09/24

ONTARIO SUPERIOR COURT OF JUSTICE

RE: COREY FOULEM, a person under disability by his Litigation Guardian, LORRAINE GILBERT FOULEM, LORRAINE GILBERT FOULEM and MICHAEL FOULEM, Plaintiffs AND: DISTRICT SCHOOL BOARD ONTARIO NORTHEAST AND NORTHEASTERN CATHOLIC SCHOOL BOARD, Defendants BEFORE: Somji J. COUNSEL: Michael Foulem, Self-Represented Lorraine Foulem, Self-Represented Lorraine Gilbert Foulem, as litigation guardian for Corey Foulem Steven Nicoletta for the Defendants

ENDORSEMENT Somji J. Released: September 24, 2024