Court of Appeal for Ontario
Date: 2018-03-20
Docket: C63938 and C63967
Judges: Simmons and Pepall JJ.A. and Fragomeni J. (ad hoc)
Between
Reginald Barker, Jean-Paul Belec, Eric Bethune, Joseph Bonner, William Brennan, Stephen Carson, Roy Dale, Maurice Desrochers by the Estate Trustee Lorraine Desrochers, Donald Everingham, John Finlayson, Robert Frost, Terry Ghetti, Robert Haberle, Bruce Hamill, Eldon Hardy, William Hawboldt, Danny A. Joanisse, Russ Johnson, Stanley Kierstead, Denis LePage, Christian Magee, Douglas McCaul, William A. McDougall, Brian Floyd McInnes, Allen McMann, Leeford Miller, James Motherall, Michael Roger Pinet, Edwin Sevels, Samuel Frederick Charles Shepherd and Shauna Taylor (formerly Vance H. Egglestone)
Plaintiffs (Respondents)
and
Elliott Thompson Barker, Gary J. Maier and Her Majesty the Queen in Right of Ontario
Defendants (Appellants)
Counsel
William D. Black and Sam Rogers, for the appellants Elliott Thompson Barker and Gary J. Maier
Sara Blake and Meagan Williams, for the appellant Her Majesty the Queen in Right of Ontario
Joel P. Rochon, Peter R. Jervis and Golnaz Nayerahmadi, for the respondents
Heard: March 13, 2018
On appeal from: the order of Justice Paul M. Perell of the Superior Court of Justice, dated June 1, 2017, with reasons reported at 2017 ONSC 3397, 39 C.C.L.T. (4th) 89, and from the costs order, dated July 18, 2017, with reasons reported at 2017 ONSC 4350, 39 C.C.L.T. (4th) 140.
Reasons for Decision
Overview
[1] The appellants, Elliott Thompson Barker, Gary J. Maier and Her Majesty the Queen in Right of Ontario (the "Crown"), appeal from the June 1, 2017 order of the motions judge in which he:
a. dismissed the appellants' motions seeking to have the respondents' action dismissed as statute-barred or barred by the doctrine of laches;
b. granted the respondents partial summary judgment for breach of fiduciary duty; and
c. ordered a trial or additional summary judgment motions to prove victimization, harm, causation of harm and quantification of damages.
The appellants also seek leave to appeal the motions judge's costs order in favour of the respondents in the amount of $282,504.34.
Background Facts
[2] 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.
[3] 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.
[4] 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.
[5] 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.
Procedural History
[6] The procedure underlying this appeal was unconventional. Although the issue of limitation periods had frequently been raised in the past, it had not been resolved. Indeed as far back as 2001, Cumming J. had indicated that the limitation issue should be dealt with on a proper record.
[7] On April 14 and May 6, 2016, the appellant physicians and the Crown brought motions for summary judgment asking that the action be dismissed on the basis that there was no genuine issue requiring a trial as the action was statute-barred due to the expiry of the applicable limitation period or alternatively, laches. In support of their motions they relied on the pleadings and proceedings, a yet to be sworn affidavit of a law clerk, and the transcripts of the respondents' examinations for discovery.
[8] By endorsement dated May 10, 2016, the motions judge, who was managing the action, established a schedule for delivery of the appellants' summary judgment material and a cross-motion to be brought by the respondents for summary judgment.
[9] The motions judge amended the scheduling direction on October 28, 2016 to provide for, among other things, the extension of the date for delivery of the respondents' cross-motion to November 28, 2016. The respondents never brought any such cross-motion for summary judgment, but did serve a motion record for summary trial on February 28, 2017. That motion for summary trial was not before the motions judge and is not the subject matter of this appeal.
[10] On December 5, 2016, the motions judge granted a further direction. He scheduled the appellants' summary judgment motions and stated that the record for the motions was "now frozen." He then wrote: "The motion will be argued on the assumption that the defendants' liability is established and the legal issue to be determined is whether any statutory limitation periods bar the plaintiffs' claims" (emphasis in original). No one sought to attempt to appeal this direction.
[11] The motions judge subsequently heard the appellants' summary judgment motions. In his written reasons for decision he noted that during the course of argument, he had advised the parties that he was of the view that there were four ways of deciding the motions. He identified them as follows:
grant the motions and dismiss the action;
adjourn the motions for additional evidence on issues for which there were genuine issues requiring a trial, but which might be resolved by further summary judgment motion(s);
dismiss the motions and reserve the limitations issue to trial; or
dismiss the motions but grant a notional cross-motion by the respondents for partial summary judgment dismissing the limitations defence and ordering the action to proceed for a determination of the respondents' claims.
The Motions Judge's Decision
[12] However, while writing his reasons, the motions judge decided to resolve the motions on a fifth basis: he would grant a notional cross-motion by the respondents for a partial summary judgment of their claim for breach of fiduciary duty and order a trial or additional summary judgment motions to prove victimization, harm and causation of harm, and to quantify the individual respondents' damages, if any. He went on to conclude that the Class Proceedings Act, 1992, S.O. 1992, c. 6, suspended the running of any not already expired limitation periods. When the proposed class action was commenced in 2000, the respondents' claim for breach of fiduciary duty was extant and not subject to any limitation period at that time and thereafter. There was no defence to the breach of fiduciary duty claim because the programmes designed by Dr. Barker and implemented by the physicians and other employees at Oak Ridge were torture and a degradation of human dignity. It was an inexcusable breach of fiduciary duty for a physician to torture a patient. The motions judge was also not persuaded that the equitable defence of laches should operate to bar the respondents' claim for breach of fiduciary duty.
[13] The parties were unable to agree on the content of the order and attended before the motions judge to settle the order. The preamble to the signed order commences with: "These motions for summary judgment, made by the Defendants for an order dismissing the action as statute-barred". It lists the materials before the court as consisting of the pleadings, the Supplementary Motion Record of the Defendants, the Exhibits to the Transcripts of the Cross-Examination of Drs. Barker and Maier and a third staff member, facta, briefs of authorities, and certain earlier decisions in the action.
[14] The Supplementary Motion Record only contained the appellants' notices of motion and the parties' pleadings. The Exhibits referred to in the order were served in February 2017, after the motions judge froze the record, as part of the respondents' motion for summary trial, which was not proceeding before him.
Procedural Fairness Issue
[15] The appellants submit that they were denied procedural fairness and that partial summary judgment for breach of fiduciary duty ought not to have been granted to the respondents by the motions judge.
[16] We agree.
[17] In December, the motions judge had directed that the appellants' motions proceed on the basis that liability was assumed. Given this direction, the appellants could not have reasonably expected that partial summary judgment for breach of fiduciary duty would be granted. At no time had the appellants conceded liability. The appellants' statements of defence disputed the allegations of what occurred and the nature of the respondents' experience at Oak Ridge and the motions judge erred in concluding otherwise. Moreover, the parties had not placed the evidentiary foundation for such an order before the motions judge. Nor, based on the procedure established by the motions judge, would they have expected that they would be denied the opportunity to advance argument on whether any fiduciary duty was owed and if so, whether it was breached.
[18] In addition, at the hearing of the motions themselves, the motions judge had outlined for the parties the potential avenues for disposition of the motions. However, his fifth alternative of devising a notional cross-motion for partial summary judgment by the respondents for their claim of breach of fiduciary duty, which was never raised with the parties, amounted to a denial of procedural fairness. The relief granted was inconsistent with the December direction and also denied the appellants the opportunity to file evidence and make submissions on the issue.
[19] We therefore set aside paragraphs 2 and 3 of the June 1, 2017 order.
Limitation Periods and Laches
[20] The appellants also submit that the motions judge erred in dismissing their motions and in concluding that the respondents' claims were not statute-barred. In oral submissions before this court, they submitted that, before the motions judge, they had proceeded to argue the motions as Rule 21 motions.
[21] We cannot accept this submission. First, it would appear from the directions, the appellants' motions for summary judgment, the motions judge's reasons and the order itself that the motions judge was responding to a motion for summary judgment, not a Rule 21 motion. Indeed, the notices of motion, originally prepared prior to the December direction, were re-served and relied upon by the appellants for the purposes of the motions heard by the motions judge. In their notices of motion, the appellants stated that the motions were for "[s]ummary judgment dismissing this action as against the defendant physicians [and as against the Crown] on the basis there is no genuine issue requiring a trial as the action against them [and the Crown] is statute-barred" or, in the alternative, is "barred by the doctrine of laches".
[22] As such, it was incumbent on the appellants as moving parties to show that there was no genuine issue requiring a trial. We are not persuaded that the appellants met this burden. The application of the limitation periods and the laches doctrine advanced by the appellants requires a characterization of the conduct of the appellants and the relationship between the parties. The parties proceeded on the assumption that the appellants' liability was established. The respondents' pleading included very serious allegations of torture and degradation of human dignity. The motions judge, who has case managed the action for several years, concluded that the limitation period statutes do not encompass an action based on breach of fiduciary duty where the act of professional practice or experimentation is torture. Indeed, when pressed in oral argument, counsel for the appellant physicians did not preclude the possibility that allegations of torture would not be captured by limitation statutes.
[23] Based on the December procedure adopted by the parties and the court, the appellants failed to show that there was no genuine issue requiring a trial on the breach of fiduciary duty limitation and laches issues. These issues do not simply engage questions of law; rather, they require factual determinations, on a proper record, on the nature and characterization of the appellants' conduct and the relationship between the parties.
[24] As for the causes of action other than breach of fiduciary duty (battery, negligence and breaches of common law and international norms), the appellants argue that it is implicit in the motions judge's reasons that he decided the limitations issues in their favour. In any event, they submit the record discloses such limitation periods have expired. We note, however, that paragraphs 29 and 30 of the motions judge's reasons make it clear 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 limitations 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.
[25] Finally, while the Crown now relies on the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, its summary judgment motion was premised on assumed liability and expiry of applicable limitation periods. Moreover, the facta filed before the motions judge make no reference to that Act. In the circumstances, we decline to consider this issue.
Disposition
[26] In summary, the motions judge's order is varied to delete paragraphs two and three and the action is remitted for trial or summary trial as deemed appropriate to the Regional Senior Judge for the assignment of a trial judge.
Costs
[27] This leaves the issue of costs. As mentioned, the motions judge awarded the respondents costs of $282,504.34 on a partial indemnity scale. This award included amounts for steps not directly related to the motions that were heard. In our view, an award of $100,000 is fair and reasonable in the circumstances. In this regard, we note that the appellant physicians took the position before the motions judge that their costs amounted to $65,836. We substitute $100,000 for the amount awarded by the motions judge together with interest at the rate he awarded.
[28] With respect to costs of the appeal, the parties agreed that the successful party should receive costs fixed in the amount of $25,000 all inclusive on a partial indemnity basis. Although we have varied the motions judge's order to delete paragraphs two and three, the respondents were substantially successful on appeal. We therefore order costs to the respondents on a partial indemnity basis in the amount of $25,000 all inclusive.
Janet Simmons J.A.
S.E. Pepall J.A.
Fragomeni J. (ad hoc)
