Ann Marie Christian-Brown

This is a costs endorsement following complex grouped appeals and a cross-appeal concerning claims by 28 former residents of the Oak Ridge Division of the Mental Health Centre against His Majesty the King in Right of Ontario and two physicians.

The Court of Appeal had largely upheld the trial judge's findings on liability for breach of fiduciary duty and battery, with minor reductions in damages.

The appellants sought a significant reduction in the respondents' costs for the appeal and a reduction in the trial costs.

The court awarded the respondents the full amount of their claimed appeal costs, finding that despite mixed success, the trial judgment remained largely intact and the costs claimed were reasonable given the complexity.

The court also declined to vary the trial costs, deeming the overturned $1,000 judgment a minor part of the overall proceedings.

The defendants brought a mid-trial motion to exclude the expert testimony of Professor Bernard Dickens, an ethicist, regarding the ethical standards of psychiatric care and research applicable in the 1960s and 1970s at the Oak Ridge Division of the Penetanguishine Mental Health Centre.

The defendants argued that Prof. Dickens, not being a physician, was unqualified to speak on psychiatric standards of care and that his reports primarily constituted legal analysis.

The court dismissed the motion, finding Prof. Dickens highly qualified as an expert in medical ethics, distinguishing ethical standards from medical standards of care and legal analysis.

The defendants brought a mid-trial motion to determine the admissibility of two reply expert reports (Prof. Shane O’Mara and Dr. Stephen Xenakis) served by the plaintiffs just before trial.

The defendants argued the reports were late and constituted impermissible case splitting.

The plaintiffs contended the lateness was due to unforeseen circumstances and that the evidence would assist the court.

The court found that the issues addressed by the reply reports were foreseeable and had already been covered by the plaintiffs' initial experts, thus constituting new evidence rather than proper reply.

The court dismissed the motion, ruling the reports inadmissible to avoid prejudice to the defendants and further trial delays, emphasizing the importance of adhering to trial schedules in a long-standing action.

The plaintiffs brought a mid-trial motion to amend their statement of claim to include reliance on section 16(1)(h.2) of the Limitations Act, 2002, and the common law doctrine of discoverability.

The claims arose from their treatment as involuntary patients at a mental health facility between 1966 and 1983, alleging assault through abusive experimentation and physical abuse.

The defendants opposed the amendment, arguing prejudice due to lack of particularity and insufficient discovery on discoverability.

The court granted the motion, finding no prejudice to the defendants as the allegations of assault and dependency were already pleaded, and the defendants had prior notice of the plaintiffs' intent to rely on section 16(1)(h.2) and had extensively explored issues related to discoverability (laches) during previous discovery examinations.

The Crown brought an ill-conceived motion to compel answers to undertakings and refusals from the Plaintiffs on the eve of trial in a multi-plaintiff action concerning alleged inhumane experimentation at a mental hospital.

The court dismissed the motion, finding that the Plaintiffs had made good faith efforts to provide disclosure given their health limitations and the age of the records.

The judge emphasized that the Rules of Civil Procedure are to facilitate, not impede, litigation, and that proportionality and common sense must guide discovery.

Many of the Crown's requests were deemed a "fishing expedition" or sought information the Crown could obtain independently.

The Plaintiffs were awarded $30,000 in substantial indemnity costs due to the Crown's conduct in unnecessarily lengthening the proceeding.

The appellant appealed a motion judge's order determining that claims for recovery of legal expenses incurred in connection with a coroner's inquest into the death of a family member were potentially recoverable under section 61(1) of the Family Law Act.

The Court of Appeal found that the motion judge erred in answering the question of law under Rule 21.01(1)(a) without proper pleadings raising the issue.

The pleadings predated the inquest and contained no reference to legal expenses.

The motion judge's answer that the expenses were "potentially recoverable" if they qualified as pecuniary loss did not advance the litigation or satisfy the purposes of Rule 21.01(1)(a).

The appeal was allowed and the order set aside.

The plaintiffs brought a motion under Rule 21.01(1)(a) to determine, before trial, whether legal expenses incurred for their participation in a coroner's inquest into the death of Jonathan Dew are potentially recoverable as pecuniary loss under section 61(1) of the Family Law Act.

The court found the motion was properly brought, as the relevant facts were not in dispute and the determination could shorten the trial or save costs.

Applying the "but for" test and principles from Macartney v. Islic, the court concluded that such legal expenses are indeed potentially recoverable.

The court rejected the defendants' argument that the Coroners Act provides a complete code for costs, finding no conflict with the Family Law Act in this context.

The defendants moved for security for costs under Rule 56.01(1) of the Rules of Civil Procedure on the basis that the plaintiff, a former inmate who alleged severe injuries from an assault by other inmates, was ordinarily resident outside Ontario following deportation to the United States.

The court found that the plaintiff was indeed not ordinarily resident in Ontario, thereby meeting the threshold requirement of the rule.

However, the plaintiff had provided limited evidence regarding financial circumstances, and the evidentiary record concerning the merits of the negligence claim against correctional authorities remained incomplete at the early stage of proceedings.

The court held that assessing the merits required disclosure of institutional procedures and security measures primarily within the defendants’ control.

In balancing access to justice against protection of defendants from meritless claims, the court concluded that requiring security for costs at this stage would be unjust and premature.