Barker et al. v. Barker et al.

[Indexed as: Barker v. Barker]

Ontario Reports Ontario Superior Court of Justice E.M. Morgan J. May 16, 2019 146 O.R. (3d) 278 | 2019 ONSC 3015

Case Summary

Limitations — Assault — Plaintiffs suing defendants for damages arising from their treatment while they were involuntary patients at mental health facility between 1966 and 1983 — Plaintiffs bringing mid-trial motion to amend statement of claim to rely on s. 16(1)(h.2) of Limitations Act — Motion granted — Statement of claim already containing allegations that defendants assaulted plaintiffs through abusive treatment and conditions — Defendants having notice of plaintiffs' intended reliance on s. 16(1)(h.2) within one year of that section's enactment — Defendants not being prejudiced by amendment — Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 16(1)(h.2).

Limitations — Discoverability — Plaintiffs suing defendants for damages arising from their treatment while they were involuntary patients at mental health facility between 1966 and 1983 — Plaintiffs bringing mid-trial motion to amend statement of claim to rely on doctrine of discoverability — Motion granted — Defendants having already questioned plaintiffs thoroughly in relation to issue of laches — Defendants being aware for years that discoverability might be raised — Defendants not being prejudiced by amendment.

The plaintiffs brought a proposed class action for damages for breach of fiduciary duty, battery, negligence and contravention of common law principles and international norms arising from their treatment by the defendants while they were involuntary patients at the Oak Ridge Division of the Penetanguishine Mental Health Centre between 1966 and 1983. They claimed that they were forced to participate in experiments that involved both psychological and physical torture. Certification of the class proceeding was denied in 2003 and a motion was granted in 2006 allowing the action to continue as a multi-party proceeding. In 2018, the Court of Appeal reversed a ruling by Perell J. in which he granted partial summary judgment to the plaintiffs on their claim of breach of fiduciary duty. The plaintiffs brought a mid-trial motion to amend their statement of claim to rely on s. 16(1)(h.2) of the Limitations Act, 2002 (which was added to the Limitations Act in 2016) and the doctrine of discoverability.

Held, the motion should be granted.

The statement of claim already contained allegations that the plaintiffs were assaulted by the defendants through abusive drug experimentation, nonconsensual treatment and physical abuse. The defendants had notice of the plaintiffs' intended reliance on s. 16(1)(h.2) in the plaintiffs' factum filed in the motion before Perell J. in 2017, within a year of the section's enactment. The defendants would not be prejudiced by the amendment with respect to s. 16(1)(h.2).

The defendants had already questioned the plaintiffs extensively in relation to the issue of laches, which essentially mirrors the common law doctrine of discoverability, and a lawyer for the province had questioned seven of the 28 plaintiffs in relation to the discoverability issue. The defendants had been aware for years that discoverability might be raised, and would not be prejudiced by the amendment of the statement of claim to rely on the discoverability doctrine.

Cases referred to

Statutes referred to

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 5(1), 16(1)(h.2)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 26.01, 26.02(c)

Authorities referred to

Brunyate, John, Limitation of Actions in Equity (London: Stevens & Sons, Ltd., 1932)

MOTION to amend a statement of claim.

Counsel: Joel Rochon, Peter Jervis and Golnaz Nayerahmadi, for plaintiffs. William Black, Sam Rogers and Meghan Bridges, for defendants Elliot Thompson Barker and Gary J. Maier. Sara Blake, Meagan Williams and Ann Christian-Brown, for defendant Her Majesty the Queen in Right of Ontario.

Endorsement

[1] E.M. MORGAN J.: — The plaintiffs bring a mid-trial motion to amend the second fresh as amended statement of claim. The proposed amendments concern the plaintiffs' response to the defendants' limitations defence. Specifically, the plaintiffs seek to add to their pleading and rely on the applicability of s. 16(1)(h.2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the "Act") as well as the doctrine of discoverability at common law and in s. 5(1) of the Act. The amendment is opposed by both sets of defendants, who have adopted each other's submissions.

I. Procedural History

[2] The history of this action is long and complicated. The events giving rise to the plaintiffs' claims took place between 1966 and 1983 at the Oak Ridge Division of the Penetanguishine Mental Health Centre. The plaintiffs were all involuntary patients at Oak Ridge. During the period at issue, Oak Ridge was the only mental health facility in Ontario providing a maximum-security environment for persons found, in the language of the day, not guilty by reason of insanity. Individuals were sent to Oak Ridge on warrants of the Lieutenant Governor as well as on Warrants of Remand from the courts, penitentiaries, reformatories and other facilities.

[3] In 2018, the Court of Appeal issued a judgment reversing a ruling by my colleague Perell J. in which he had granted partial summary judgment to the plaintiffs on their claim of breach of fiduciary duties. In introducing its reasons for judgment, the Court of Appeal set out a concise synopsis of the background of the case, as follows (Barker v. Barker, [2018] O.J. No. 1463, 2018 ONCA 255) [at paras. 2-5]:

The respondents were patients committed to the Oak Ridge Division of the Mental Health Centre in Penetanguishene, Ontario, at various times between 1966 and 1983. They were subjected to intensive therapy programmes designed in part by the appellant Dr. Barker for Oak Ridge's Social Therapy Unit which he and the appellant Dr. Maier oversaw.

In 2000, one of the respondents commenced a proposed class action. The claims included breach of fiduciary duty, battery, negligence and contravention of common law principles and international law norms relating to the use of torture and cruel, inhumane or degrading treatment and punishment. The respondents have also alleged there was a lack of informed consent.

The pleading asserts that patients at Oak Ridge were forced to participate in experiments that involved both psychological and physical torture. Examples include: forcing a patient to sit in a space of approximately three square feet in which he would be allowed to move only four times during a four hour session; placing patients nude in a soundproof, windowless, continuously ventilated room, eight feet by ten feet, often cuffed to one another for periods of up to two weeks; and administering to patients combinations of hallucinogenic, delirium-producing, psychosis-producing or mind-altering drugs.

Certification of the class proceeding was denied in 2003 and, after an unsuccessful appeal, a motion was granted in 2006 to allow the action to continue as a multi-party proceeding.

II. The Discovery Process

[4] Examinations for discovery were conducted between 2013 and 2019, with the bulk of them being done in 2017. Every one of the plaintiffs, including those in custody or living abroad, has been examined, sometimes multiple times, and undertakings have been given and answered. The discovery process was extensive, running into thousands of pages of transcripts. The pre-trial (and now trial) record also contains the record of the summary judgment motions served in 2017, containing affidavits of every plaintiff summarizing the experience and medical situation of each of them.

[5] Documentary discovery has also been voluminous, as the plaintiffs have produced or authorized production to the defendants of all of their extensive medical files, criminal files, incarceration files, etc. Plaintiffs have also given defendants' counsel access to plaintiffs' family members and in some cases to their criminal defence and other former lawyers in order to obtain information about the plaintiffs and their claims. It is difficult to imagine a more thorough discovery process.

[6] The defendants' position with respect to the expiry of limitation periods for the plaintiffs' claims has always been front-and-centre in this action. Indeed, the motion before Justice Perell in 2017 dealt to a great extent with limitation periods, although the judgment itself was inconclusive on the point. The Court of Appeal judgment of 2018, which, as indicated, overturned the motions court ruling, summarized the position by first pointing out that during the relevant time period -- under prior versions of the Act -- there was no limitation period applicable to a claim of breach of fiduciary duties. It then went on to consider the limitation periods applicable to the other causes of action (at para. 24):

In any event, [the Defendants] submit the record discloses that such limitation periods have expired. We note, however, that paragraphs 29 and 30 of the motions judge's reasons make it clear that he did not fully analyze the respondents' arguments in this regard, including arguments concerning the retroactive application of s. 16(1)(h.2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, mental incapacity, and the doctrine of discoverability. Further, given the state of the record before us, we are of the view that the applicable limitation periods, if any, for the other causes of action are best dealt with at trial, along with the applicable limitation period, if any, for the breach of fiduciary duty claim.

[7] Plaintiffs' counsel take the Court of Appeal at its word and say that it authorized the limitation issues to be dealt with in their entirety at trial. Although that is literally what the judgment says, I am not convinced that the panel turned its mind to whether any pleadings amendments necessary to the limitation issues should be done as a pre-trial or a mid-trial matter. In any event, plaintiffs' counsel now seek the pleadings amendments and characterize their motion as a matter of housekeeping rather than as a substantive change in their claim.

III. Amending Pleadings

[8] Whether or not the motion to amend would have been better brought before trial began rather than in its third week, what is clear is that the limitations issues, including as the Court of Appeal says, the application of s. 16(1)(h.2) and the doctrine of discoverability, come as no surprise to the defendants. They knew these issues were raised by the plaintiffs in the 2017 motion before Perell J. Plaintiffs' counsel has reproduced in their motion record copies of the factums from the 2017 motion, where these issues were argued for many paragraphs by both sides. As indicated above, the defendants all knew that the 2018 judgment of the Court of Appeal had specifically reserved these issues for a later date, mentioning the trial itself as the likely time for canvassing s. 16(1)(h.2) and discoverability.

[9] Although mid-trial pleadings amendments are not encouraged as a matter of case management, rule 26.02(c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that a pleading may be amended at any time, without limitation, with leave of the court. Moreover, the amendment rule is written in mandatory language. Rule 26.01 provides that, "On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment." Accordingly, a party seeking to prevent a pleading from being amended "must establish a link between the non-compensable prejudice and the amendment. It must show that the prejudice arises from the amendment": Iroquois Falls Power Corp. v. Jacobs Canada Inc., [2009] O.J. No. 2642, 2009 ONCA 517, at para. 20.

IV. Section 16(1)(h.2) of the Limitations Act, 2002

[10] Turning first to the proposed amendment dealing with s. 16(1)(h.2) of the Act, this section was not pleaded at the outset of the action as it was only added to the Act by statutory amendment in 2016. It provides, in relevant part, that, "There is no limitation period in respect of . . . a proceeding based on an assault if, at the time of the assault, the person with the claim was a minor or . . . the person with the claim was financially, emotionally, physically or otherwise dependent on the other person."

[11] Counsel for the plaintiffs submits that the section applies retroactively to the events in issue in the action, which pre-date the 2016 addition to the Act by several decades. Counsel for the defendants deny the applicability of the Act altogether, and submit that a number of other statutes specifically geared to health care and the provision of health services set out the applicable limitation periods. Defendants' counsel agree, however, that if the Act as a whole applies here then s. 16(1)(h.2) operates retroactively.

[12] Plaintiffs' counsel submit that adding s. 16(1)(h.2) to their pleading only adds a legal point and that no facts need be supplemented to support this amendment. In fact, they indicate that the section has general application and applies to all claims that fit the terms of the section regardless of whether it is pleaded or not. As in Dee Ferraro Ltd. v. Pellizzari, [2012] O.J. No. 355, 2012 ONCA 55, at para. 14, where the Court of Appeal stated that, "This is not a case in which new and unrelated causes of action are being asserted based on new facts", the section embodies a defence to the limitation defence [at para. 13] "flowing from the facts originally pleaded".

[13] Plaintiffs' counsel further point out that the basic facts supporting s. 16(1)(h.2) -- the plaintiffs' total dependence on the defendants during their incarceration in the 1960s and 1970s -- are already pleaded. They state that to describe the situation of inmates at Oak Ridge is to describe the very type of emotional and physical state of dependency now referenced in s. 16(1)(h.2) of the Act.

[14] Allegations of assaults on the plaintiffs through abusive drug experimentation and physical conditions, unconsented-to and untherapeutic procedures and supervision and physical abuse of the plaintiffs by other mentally ill inmates, are all described in the second fresh as amended statement of claim. Indeed, the claim is premised on the allegation that the cruel and unusual experimentation and treatment to which the plaintiffs were subject was intended to break down their mental defences and ensure their vulnerability. When seen in this way, any possible iteration of the plaintiff's pleading, including the second fresh as amended statement of claim in play in this action prior to the present proposed amendment, contains facts relevant to s. 16(1)(h.2).

[15] Defendants' counsel complains that while these matters may be pleaded in a general way, the plaintiffs' claim in this regard is lacking in particularity. They submit that the specific dates of the alleged mistreatment and wrongdoing are not provided in the pleading, and that they need these particulars in order to properly answer the plaintiffs' allegations. They contend that they cannot respond to any given assertion that a plaintiff was administered noxious drugs or bound and made to sit naked and immobile in a cramped space with other naked inmates for weeks on end without the plaintiffs pleading the dates of those specific events.

[16] While defendants' counsel are correct that the pleading is thin on the kind of detail one would find for different types of allegations or in a different factual context, the context necessarily sets the standard of detail needed in the pleading. The context here is that of mental patients suing for mistreatment allegedly endured over an extended period of time, administered by their doctors and a government-run institution. The doctors and the institution are themselves in possession of the medical records that contain the very particulars the defendants say that they need. Plaintiffs contend, in essence, that the defendants engaged in a plan to take vulnerable, incarcerated people and render them incapable of understanding what was being done to them. The very conduct complained of prevented any of them from keeping a diary or daily log of the impugned events.

[17] In this context, to require that the plaintiffs detail their vulnerabilities, dependencies and abusive situations in support of the s. 16(1)(h.2) pleading to the level demanded by the defendants would be to provide the defendants with a foolproof defence. The requirement of particularity in pleading is meant to be a shield for defendants so that they are not in the dark about the case they have to meet; it is not meant to be a sword for the defendants' use in denying plaintiffs any possibility of a claim.

[18] The defendants had notice of the plaintiffs' intended reliance on s. 16(1)(h.2) in the plaintiffs' factum filed in the motion before Perell J. in April 2017, within a year of the section's enactment. That factum argued, "All the plaintiffs' common-law claims are protected by section 16(1)(h.2) of the Limitations Act, 2002 because they were dependent on the defendants at the time the assault and battery took place." The defendants cannot argue that they are surprised or prejudiced by the introduction of the pleadings amendment with respect to s. 16(1)(h.2). It merely reiterates what they already knew was in play for the past several years.

V. Discoverability

[19] Turning to the discoverability doctrine, defendants' counsel contend that they have not had an opportunity to examine the plaintiffs for discovery on the discoverability issue. They submit that at this late date, with the trial already underway, the motion to amend must either be dismissed outright or granted together with an adjournment of the trial so that further discovery can be conducted. Otherwise, they say, they are made to essentially defend a trial by ambush.

[20] Counsel for the plaintiffs responds with some incredulity. Plaintiffs' motion record contains over a thousand pages of discovery transcripts in which the discoverability issue was explored with various plaintiffs by defendants' counsel. Plaintiffs' counsel point out that defendants' counsel canvassed everything from the dates that the plaintiffs first contacted their present counsel, to previous complaints and lawsuits brought by any number of plaintiffs, to the plaintiffs' awareness of and access to duty counsel while at Oak Ridge in the 1970s, to the letter writing campaigns engaged in by several of the plaintiffs over the decades seeking to put a stop to the kind of acts in issue in this litigation. In addition, in the affidavits sworn by each of the plaintiffs for the 2017 motion, and which by agreement of the parties now form part of the trial record, the plaintiffs each provide information on the dawn of this case and how and when they personally became involved or realized that they could engage in a legal action.

[21] Counsel for the Government of Ontario at discoveries asked a number of the plaintiffs for undertakings with respect to these issues, and followed up on those requests by sending plaintiffs' counsel an undertakings chart listing and describing each of the outstanding answers. The chart divided the outstanding undertakings into three categories, listing each of the undertakings as going to either "Liability", "Damages", or "Discoverability". The label of this third category was not a Freudian slip; a perusal of the undertakings falling under this heading reveals precisely the kind of questions one would ask in order to unearth the opposing side's discoverability position. Various plaintiffs responded by indicating when in the past they learned about, and with whom and when in the past they had spoken about, the prospect of a lawsuit relating to their Oak Ridge experiences.

[22] It is not surprising that defendants' counsel asked these questions. Discoverability, as Perell J. and the Court of Appeal pointed out, has long been an issue to be addressed in the case.

[23] Defendants' counsel responds by conceding that all of those questions were indeed asked, but says that they were for the most part meant to address the issue of laches as it pertains to the equitable claim of breach of fiduciary duties. It is the defendants' position that discoverability under the Act or at common law is a response to a defence which places an onus on the plaintiff, and so it did not have to be canvassed at discoveries (or addressed at trial) if the plaintiff did not specifically plead it.

[24] At the same time, it is the defendants' position that with respect to the claim of breach of fiduciary duties the doctrine of discoverability does not apply either at common law or under the pre-Act limitations statutes in force in Ontario, but that the equitable doctrine of laches applies. Defendants' counsel concedes that the onus is on the defendant to establish the unfair delay on which the laches principle is premised. Accordingly, counsel for the defendants explains that in their view, discoverability does not have to be explored in pre-trial examinations if the plaintiff has not bothered to plead it, but laches has to be explored because it is clearly relevant and the plaintiff need not plead it.

[25] Embedded in this argument is the idea that different questions would be asked in an equitable laches case than in a statutory limitation case. More specifically, it assumes that discoverability, which is an integral part of a limitation period analysis both at common law and under statute, is not at issue in a laches analysis. That sounds somewhat plausible at first blush -- after all, the equitable doctrine of laches is, like all doctrines of equity, related to but different in nuance from limitation periods as its nearest relative at law. Limitation periods are hard numerical rules while laches is a principle that requires a weighing of the competing equities: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, [2013] S.C.J. No. 14, at paras. 145-146. That difference, however, is not always as substantive as it may appear.

[26] Almost a century ago, English legal scholar John Brunyate stated, "since delay by a plaintiff who has been ignorant of his right of action will not amount to laches, we should expect that . . . time will not run until the plaintiff is aware of his right of action" (Limitation of Actions in Equity (London: Stevens & Sons, Ltd. 1932), c. 2, cited approvingly in M. (K.) v. M. (H.), [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85). We need not delve into legal history to see that that logic makes sense. It would be impossible to evaluate the equities of a delay in bringing an action without knowing when the plaintiff first realized he or she had been wronged.

[27] In fact, the weighing of equities in a laches analysis specifically involves asking whether the claimant has acquiesced in the delay, which in turn involves evidence of the claimant's state of mind and level of knowledge of the facts on which the cause of action is premised: Manitoba Metis Federation, at para. 147. One can't acquiesce in something one hasn't discovered. It is little surprise, therefore, that the Supreme Court of Canada has indicated that the equitable doctrine of laches essentially mirrors the common law doctrine of discoverability: "It is not enough that the plaintiff knows of the facts that support a claim in equity; she must also know that the facts give rise to that claim": M. (K.), supra, [at para. 101] citing Howlett (Re), [1949] Ch. 767, [1949] 2 All E.R. 490.

[28] The Supreme Court in M. (K.) has specifically confirmed with respect to discoverability and laches that [at para. 104] "both doctrines share the common requirement of knowledge on the part of the plaintiff". The indicia of that knowledge -- what did the plaintiff know with respect to the alleged wrongs and his legal rights and when did he know it -- will be the subject of discovery under both rules. It defies logic and the nature of the two very similar legal principles to say that a defendant knew full well he had to discover on the issue of laches, but that he is greatly disadvantaged to now learn that he also had to discover on the issue of discoverability. The information sought and the questions asked will be virtually the same.

[29] Interestingly, counsel for the defendants conceded in argument that examinations on the issue of discoverability were in fact conducted with respect to seven of the 28 plaintiffs. Defendants' counsel's explanation for this is that, apparently, a very diligent young lawyer for the Government of Ontario conducted the discoveries on those individual plaintiffs, and was foresightful enough to pose questions exploring the discoverability issue. As for the rest of the individual plaintiffs, other lawyers on the defendants' counsel team conducted those discoveries and the discoverability questions were not asked. Accordingly, the defendants are not seeking to eliminate the doctrine of discoverability from the analysis of the limitation period with respect to seven of the 28 plaintiffs, but are seeking to eliminate it with respect to the remaining 21 plaintiffs.

[30] With respect, this position is not tenable. In the first place, counsel for Ontario asked for undertakings regarding discoverability from 13 of the plaintiffs. If only seven plaintiffs were questioned about discoverability, how is it that undertakings were extracted from six more of them? Perhaps others on the defendants' counsel team were more foresightful and diligent than they have been given credit for.

[31] But that is only part of the point. If the defendants' position is to be taken seriously, the young lawyer who supposedly on his or her own asked about facts going to the discoverability issue would have been fishing for information that, in the defendants' view, he or she had no right to ask about. Not surprisingly, plaintiffs' counsel did not object to this line of questioning and provided answers that now satisfy the defendants such that they are not discounting the discoverability doctrine with respect to those seven deponents. What was wrongful from the defendants' point of view when it was done has suddenly become rightful now that it helps explain some of the discoverability questions which the defendants did in fact explore with the plaintiffs.

[32] Furthermore, if one lawyer on the defendants' team knew about the discoverability doctrine, they all knew about the discoverability doctrine. In order to put an opponent on notice in litigation, one conveys the notice to opposing counsel -- any number of them or any one of them will do. If one member of a law firm of record has notice, or one member of the Ministry of the Attorney General is aware of an issue in the action, they all are presumed to have notice and be aware of the issue. The young lawyer who asked discoverability questions is not being presented as a rogue acting beyond his retainer; quite the opposite. He is being presented as a perhaps more thorough or diligent version of all the other defendants' lawyers.

VI. Conclusion

[33] I find that the proposed amendments cause no prejudice to the defendants. They have had ample discovery of the plaintiffs, including on the issues related to the plaintiffs' amendments. The trial can proceed apace.

[34] To be as clear as possible, nothing in this endorsement is to be taken as an evaluation of the merits of the limitation issues. The limitation issues, including whether or not s. 16(1)(h.2) is applicable and/or whether the claims are time barred under the Act or some other set of statutes and how the discoverability principle fits into that analysis, will be addressed on their merits at the appropriate time toward the end of the trial. All that is in issue here is whether these matters can be added to the plaintiffs' pleading so that evidence around them can be introduced by all parties.

[35] The plaintiffs' pleading is hereby amended as proposed by them.

[36] Costs of this motion will be to the plaintiffs in the cause.

Motion granted.

Released: May 16, 2019 E.M. Morgan J.

Barker et al. v. Barker et al., 2019 ONSC 3015

Case Summary

Barker et al. v. Barker et al.

Case Summary

Cases referred to

Statutes referred to

Rules and regulations referred to

Authorities referred to

Endorsement

I. Procedural History

II. The Discovery Process

III. Amending Pleadings

IV. Section 16(1)(h.2) of the Limitations Act, 2002

V. Discoverability

VI. Conclusion

Cited By (1 case)

Ruffolo v. Toronto-Dominion Bank, 2019 ONSC 4333

Judge

Counsel

Parties

Areas of Law