William Black

The respondents in the underlying application (BNY) brought a motion to adjourn a damages trial until after the disposition of their pending appeal on liability, to adduce further evidence, and to settle the form of judgment on liability.

The court had previously found BNY liable for breach of contract and ordered a viva voce trial on damages due to the complexity of the record.

The court dismissed the motion, finding that an adjournment would effectively impose a bifurcation not agreed to by the parties, contrary to Rule 6.1.01, and that the balance of convenience favoured proceeding with the damages trial to allow a single appeal on both liability and damages.

The court also declined to allow new evidence or settle the form of judgment at this stage.

Following a 71-day trial where the plaintiffs were awarded nearly $10 million in damages, the plaintiffs sought costs of approximately $8.5 million on a substantial indemnity basis or $5.3 million on a partial indemnity basis.

The defendants argued that substantial indemnity costs were unwarranted and that the partial indemnity claim included costs for interlocutory matters already decided.

The court found no reprehensible conduct by the defendants to justify an elevated scale of costs.

Applying the partial indemnity scale and deducting amounts attributable to prior interlocutory motions, the court fixed the plaintiffs' costs at $4,900,000 all-inclusive.

This is the damages phase of a multi-party action brought by 28 former patients of the Oak Ridge Division of the Penetanguishene Mental Health Centre.

In the liability phase, the defendants (two psychiatrists and the Crown) were found liable for breach of fiduciary duty and battery for subjecting the plaintiffs to experimental and harmful psychiatric programs (DDT, Capsule, and MAPP) between the 1960s and 1980s.

The court assessed general, punitive, and income loss damages on an individual basis.

General damages were awarded to all plaintiffs, ranging from nominal amounts to over $2 million for the most severely impacted.

Punitive damages were awarded in cases involving particularly egregious conduct, such as the treatment of underage patients or the administration of alcohol to known alcoholics.

Income loss claims were largely limited or barred by the ex turpi causa doctrine, which prevented recovery for periods the plaintiffs spent lawfully incarcerated or institutionalized for subsequent criminal offenses.

The defendants brought a mid-trial motion to disqualify the plaintiffs' expert witness, a forensic psychiatrist, for the damages phase of the trial.

The defendants argued the expert's report did not comply with prior admissibility rulings, lacked expert evidence, and exhibited bias.

The court found that the expert's methodology in calculating the impact of harms on the plaintiffs' institutionalization timeline was within his expertise and complied with prior rulings.

The court rejected the allegations of bias, finding the expert's evolving views on patients reflected objective reliability rather than advocacy.

The motion was dismissed, and the expert report was ruled admissible, with any stray comments outside his expertise to be disregarded.

During the damages phase of a trial concerning historical abuses at the Oak Ridge Social Therapy Unit, the defendants moved to strike portions of the plaintiffs' expert reply report authored by Dr. Roy O'Shaughnessy.

The defendants argued the impugned paragraphs raised irrelevant issues or issues already addressed in the liability phase.

The court granted the motion in part, striking paragraphs that opined on alternative treatments or whether the plaintiffs should have been at Oak Ridge, as these fell outside the scope of the damages inquiry.

Paragraphs addressing the impact of the programs on the plaintiffs' institutionalization and employment trajectories were deemed admissible.

The defendants requested the court to issue a formal judgment following the liability phase of a bifurcated trial to establish res judicata for the upcoming damages phase.

The plaintiffs consented to the form of the draft judgment but argued it was unnecessary at this stage.

The court declined to issue the formal judgment, finding that the trial is a single proceeding and a comprehensive judgment should be issued after the damages phase is completed, though the liability findings remain binding.

In the second phase (damages) of a bifurcated trial concerning institutional abuse at the Oak Ridge mental health facility, the defendants moved to exclude three expert reports tendered by the plaintiffs.

The court found that the reports of the two psychiatrists and one psychologist improperly repeated and elaborated on causation evidence that had already been adjudicated in the first phase of the trial.

The court ruled the reports inadmissible under the Mohan test as they were unnecessary and prejudicial, but granted the plaintiffs leave to submit revised reports focused strictly on the quantification of damages and economic loss.

The plaintiffs, former involuntary patients at the maximum-security Oak Ridge division of the Penetanguishene Mental Health Centre, brought an action against two doctors and the provincial Crown.

They alleged they were subjected to abusive and experimental psychiatric programs, including hallucinogenic drugs, solitary confinement, and harsh disciplinary regimes, without informed consent.

The court found that the doctors breached their fiduciary duties and committed assault and battery.

The court also found the Crown directly and vicariously liable for these breaches and torts, rejecting the Crown's arguments of statutory immunity, limitation periods, and laches.

The trial was bifurcated, with this decision addressing liability and causation, leaving damages to be quantified later.

In a voir dire during a trial regarding historical programs at a psychiatric facility, the plaintiffs challenged the qualification of the defendants' proposed expert witness, Dr. Turrall.

The plaintiffs argued he lacked credibility because substantial portions of his report on the standard of care were copied verbatim from another expert's memo.

The court found the standard of care portion of the report unnecessary and excluded it, but qualified the expert to testify on causation issues regarding specific plaintiffs, as that portion of his report was based on his own review of medical records.

The plaintiffs brought a mid-trial motion to disqualify the defendants' proposed expert witness, Dr. Vernon Quinsey, arguing he lacked the requisite independence and objectivity.

Dr. Quinsey was previously employed as a staff psychologist and Director of Research at the very psychiatric facility whose programs were being challenged as unethical human experimentation.

The court found that Dr. Quinsey's integral role in evaluating the contentious programs during the relevant period created a serious doubt as to his objectivity.

The court concluded that the prejudicial effect of his evidence outweighed its probative value, and disqualified him from testifying as an expert, though permitting him to testify as a fact witness.

The defendants brought a mid-trial motion to admit three sur-reply expert reports.

The plaintiffs opposed, arguing the reports were unnecessary, prejudicial, and served late.

The court admitted two of the reports, finding them to be narrowly tailored responses to specific criticisms raised by the plaintiffs' experts.

However, the court excluded the third report, finding it to be an advocacy piece that improperly introduced new evidence and amounted to case-splitting.

The defendants brought a mid-trial motion to exclude video footage of an interview between a deceased plaintiff and a documentary filmmaker.

The plaintiffs sought to introduce the unsworn footage to demonstrate the deceased plaintiff's sincerity and counter credibility attacks in the defendants' expert reports.

The court held that the video footage did not meet the criteria of necessity and reliability under the principled approach to hearsay, noting that the best available evidence was the deceased plaintiff's sworn examination for discovery transcript and affidavit.

The motion to exclude the evidence was granted.