COURT OF APPEAL FOR ONTARIO

CITATION: Barker v. Barker, 2022 ONCA 567

DATE: 20220729

DOCKET: C68573 and C68586

Hourigan, Trotter and Zarnett JJ.A.

BETWEEN

Reginald Barker, Jean-Paul Belec, Eric Bethune (formerly Jean-Jacque Berthiaume), Joseph Bonner, Willian Brennan by the Estate Trustee Maxwell Brennan, Stephen Carson, Roy Dale, Maurice Desrochers by the Estate Trustee Lorraine Desrochers, Donald Everingham, John Finlayson, Robert Frost, Terry Ghetti, Bruce Hamill, Eldon Hardy, William Hawboldt by the Estate Trustee Barbara Brockley, 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 by the Estate Trustees Deborah Karen Moroz and Jane Alexis Marion, Michael Roger Pinet, Edwin Sevels, Samuel Frederick Charles Shepherd and Shauna Taylor (formerly Vance H. Egglestone)

Plaintiffs

(Respondents/Cross-Appellants)

and

Elliott Thompson Barker by his Litigation Guardian Janine Barker, Gary J. Maier, and Her Majesty the Queen in Right of Ontario

Defendants

(Appellants/Respondents on Cross-Appeal)

Sara Blake and Ann Christian-Brown, for the appellant her Majesty the Queen in Right of Ontario

Frank McLaughlin, Sam Rogers, Meghan S. Bridges and Bonnie Greenaway, for the appellants Elliott Thompson Barker and Gary J. Maier

Joel P. Rochon, Peter R. Jervis, Golnaz Nayerahmadi, Matthew W. Taylor and Karine Bédard, for the respondents

Heard: December 13-16, 2021

On appeal from the judgment of Justice Edward M. Morgan of the Superior Court of Justice, dated February 8, 2021, with reasons reported at 2020 ONSC 3746 and 2021 ONSC 158, 68 E.T.R. (4th) 1.

A. OVERVIEW.. [1]

B. BACKGROUND. [10]

(1) Procedural history. [10]

(2) The respondents. [13]

(3) Oak Ridge. [17]

(4) The STU programs. [20]

(5) Trial judge’s reasons. [48]

C. DISCUSSION. [53]

(1) Fiduciary duties. [53]

(2) Intentional torts. [132]

(3) Limitation periods. [187]

(4) Palpable and overriding errors. [211]

(5) Damages. [232]

D. DISPOSITION. [316]

By the Court:

A. Overview

[1] The events giving rise to this litigation took place at various times between 1966 and 1983 at the maximum-security Oak Ridge Division of the Mental Health Centre in Penetanguishene (“Oak Ridge”). The 28 respondents in this case were involuntarily admitted to Oak Ridge and held in the Social Therapy Unit (“STU”) during this period. They allege that they were subjected to inhumane treatment, including psychological and physical abuse, as a result of three STU programs:

1. Defence Disruptive Therapy (“DDT”) – a program whereby patients were subjected to mind-altering drugs, including LSD, to “break down their defences”

2. The Total Encounter Capsule (“Capsule”) – a program whereby patients were placed naked in cells under harsh conditions for group encounters lasting up to 11 days at a time

3. The Motivation, Attitude, Participation Program (“MAPP”) – a strict physical disciplinary program that was implemented by other psychiatric patients

[2] The respondents sued Her Majesty the Queen in Right of Ontario (“Ontario”), as Ontario was ultimately responsible for administering Oak Ridge, and the two doctors who served as the Clinical Directors of the STU in the 1960s and 1970s, Dr. Elliott Thompson Barker and Dr. Gary J. Maier (the “Physicians”). The respondents sought damages for breach of fiduciary duty, assault, battery, and intentional infliction of emotional distress. They abandoned their negligence claims at trial in closing argument.

[3] The respondents’ individual claims were tried together. During the almost 10-week trial, 38 witnesses testified and hundreds, if not thousands, of documents were tendered into evidence, including contemporaneous medical records, and journal articles and third-party reports written about the STU programs at the time.

[4] The trial judge held that Ontario and the Physicians were liable for breach of fiduciary duty, including by subjecting the respondents to harmful procedures without a reasonable prospect of benefit and without informed consent. He dismissed the respondents’ claims for intentional infliction of emotional distress but found that Ontario and the Physicians were liable for battery and assault. All three of the STU programs amounted to a non-consensual, non-trivial invasion of the respondents’ bodily integrity, or in other words, battery. In addition, the design, administration, and implementation of MAPP amounted to an assault on all the respondents, including those who were never in MAPP.

[5] The trial judge rejected the defences put forward by Ontario and the Physicians. He found that none of the respondents gave legally recognizable consent to participation in DDT, the Capsule, or MAPP. He rejected Ontario’s Crown immunity arguments. He also found that the respondents’ claims were not barred by any limitation provisions.

[6] The trial judge assessed each respondent’s damages claim separately. In doing so, he declined to apply the damages cap set out in Andrews v. Grand & Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229. The damages awarded ranged considerably, from under $10,000 to over $2 million, depending on the particular facts. The trial judge awarded punitive damages to some, but not all, of the respondents. He applied the ex turpi causa doctrine to preclude damages for some past lost income claims. He awarded pre-judgment interest on the general damages awards but declined to award any pre-judgment interest on past income losses.

[7] Ontario and the Physicians (collectively the “appellants”) appeal on liability and damages. The respondents cross-appeal.

[8] Collectively, the parties raise a host of issues. Ontario and the Physicians challenge the trial judge’s findings on breach of fiduciary duty, battery, and assault. They also raise Crown immunity issues and limitation period issues. They submit that the trial judge made factual and legal errors and challenge the sufficiency of his reasons. They also challenge his damages awards on a number of grounds. The respondents, in turn, also raise a number of damages issues.

[9] For the reasons that follow, we allow the appeals and cross-appeal in part. We uphold the trial judge’s conclusion that Ontario and the Physicians are liable for breach of fiduciary duty to all respondents except Mr. Kierstead. We also uphold his finding of battery but only in relation to specified respondents. We reverse his findings on assault. We set aside the judgment in favour of Mr. Kierstead and modify the judgments in favour of Mr. Pinet, Mr. McCaul, and Mr. LePage due to the particular facts that pertain to their situations. For the other respondents, we uphold the damages awards as the variations we have made to the bases of liability do not affect their damages entitlements and the awards are free of reversible error. We vary, in one respect, the trial judge’s treatment of pre-judgment interest.

B. BACKGROUND

(1) Procedural history

[10] The action began in 2000 as a proposed class action. It was subsequently reconstituted as an individual action brought by the 28 respondents after certification of the proposed class action was denied: Joanisse v. Barker (2003), 38 C.P.C. (5th) 386 (Ont. S.C.).

[11] In 2018, this court reversed a decision granting partial summary judgment in favour of the respondents on procedural fairness grounds and remitted the action for trial: Barker v. Barker, 2018 ONCA 255, 47 C.C.L.T. (4th) 109.

[12] The trial was scheduled in two parts, the first covering liability, causation, and defences, including limitation period issues, and the second part covering the quantification of damages. The trial judge produced two sets of reasons, totalling more than 2,000 paragraphs.

(2) The respondents

[13] As noted, each of the respondents was involuntarily admitted to Oak Ridge between 1966 and 1983. Some were involuntarily committed under the Mental Health Act (“MHA”) applicable at the time. Others were admitted as a result of warrants of remand from courts, penitentiaries, and reformatories, or pursuant to warrants of the Lieutenant Governor after having been found not guilty by reason of insanity (“NGRI”), in the terminology of that era.

[14] For each respondent, the trial judge considered (1) their pre-Oak Ridge background and index offence or reason for having been committed, (2) their experience at Oak Ridge with any of the three STU programs, (3) their post-Oak Ridge experience, and (4) the harms that the STU programs caused them.

[15] While the respondents’ experiences before, during, and after their time at Oak Ridge varied, it is fair to say that many suffered difficult upbringings, including abuse. Some of the respondents came to Oak Ridge after having committed serious offences, such as murder, armed robbery, and violent sexual assault. Others came to Oak Ridge as troubled youths with less serious records. The respondents suffered from different mental disorders, including schizophrenia and what Dr. Barker described as “psychopathy”. The trial judge found the respondents’ experiences in the STU varied, and the degree of harm they suffered also varied considerably. He found that the harm ranged from mild short-term harm to substantial long-term harm, with some respondents suffering both short-term and long-term harm. After leaving Oak Ridge, some respondents went on to live troubled lives, while others went on to achieve stability and success.

[16] It has now been decades since the respondents’ time at Oak Ridge, and a number of the respondents have died: sadly, four of the twenty-eight respondents died before the trial commenced, another two died during the course of the trial after they had completed their testimony, and another two died while the trial decision was under reserve.

(3) Oak Ridge

[17] Until the 1960s, Oak Ridge played what was essentially a custodial function for patients who were relegated there for life. For the most part, treatment consisted of sedatives, tranquilizers, electro-shock therapy, and in some cases, psychosurgery. The goal of such treatment was to render patients more manageable and less violent in a hospital setting.

[18] The 1960s marked the beginning of a period of change at Oak Ridge. In 1960, Dr. Barry Boyd became the Superintendent of Oak Ridge. During his tenure as Superintendent, which lasted until 1974, the focus of the institution shifted from custody and security to treatment with a view to the eventual release of patients back into the community. Although this was, in theory, a positive development, it was the execution of this shift that gave rise to the claims in this action.

[19] In 1965, Dr. Boyd hired Dr. Barker as a staff psychiatrist. At the time he was hired, Dr. Barker had been a qualified psychiatrist for only two years. In 1966, he became the first STU director. Dr. Maier took over as STU director after Dr. Barker. He was followed, as STU director, by Dr. Douglas Tate and then Dr. Julia O’Reilly. These four STU directors and Dr. Boyd are identified in the statement of claim as the agents carrying out the work of Ontario in running the institution and the STU programs.

(4) The STU programs

(a) Philosophy behind the STU programs

[20] A shortage of resources meant that traditional psychotherapy was not possible at Oak Ridge. Instead, Dr. Boyd and Dr. Barker concluded that the best approach would be to adopt a “therapeutic community” model, where patients would share in decision-making and take responsibility for their own group and individual health. Part of the idea was that patients would continuously be in a therapeutic milieu rather than just having a periodic hour of professional therapy now and again.

[21] While the therapeutic community idea had been used in several hospitals in England, the trial judge found that the STU programs were unique. As one witness explained, the three STU programs were “add-ons” to the original idea of a therapeutic community. The latter was developed by British psychiatrist Dr. Maxwell Jones.

[22] In creating the STU programs, Dr. Barker was not only inspired by the therapeutic community idea but also by philosopher Martin Buber, who believed that psychiatric patients had suffered experiences that made them unable to dialogue effectively with others. Dr. Barker’s thinking was further influenced by the character reformation methods he observed during his visit to Maoist prisoner camps in China prior to arriving at Oak Ridge.

[23] In an article entitled “Buber Behind Bars”, (1968) 13 Can. Psych. Assoc. J. 61, which Dr. Barker co-authored with an STU patient, Dr. Barker described the assumptions that informed the STU Programs.

[24] A key assumption was that “[t]he patient is the principal agent of therapy” as “[h]e is equipped to help his peers” and is better, in some ways, than the professional: “Buber Behind Bars”, at p. 71.

[25] Another important assumption was that “[t]he use of force is legitimate in treating patients for illnesses which they do not recognize, in settings where they will be incarcerated until they change”: “Buber Behind Bars”, at p. 71. Indeed, the article emphasized the role of force, at p. 65, as follows:

Physical force brought the patient to our hospital, physical force maintains him there, and this force will not be lifted until he changes his behaviour in a recognizable way.

In our opinion, there is no question that the treatment necessary to produce some remission of the illnesses suffered by most Oak Ridge patients would be impossible on a voluntary basis.

[26] The article also described how the STU was “considerably less permissive than a penitentiary”, at p. 69:

Where [the patient] went and what he did, from seven in the morning until ten at night, seven days a week, was determined by his fellow patients in committee. The small group treatment he received, the medication he took, the penalties of his deviance were all fixed by the appropriate patient groups. He might be called upon by a committee to observe through the night in the [STU], be handcuffed to a dangerous patient, assist in carrying a man bodily to treatment, search a man for razor blades, or a room for broken glass. He might be deprived of his room, his clothes, his mattress, his coffee, or his tobacco, by a committee. As a last resort, he might be stripped by them, and locked in a screened room.

…. While a bald report of the activities of a patient committee may suggest the weekend pastimes of Storm Troopers, our explanation would be that a seeming rape is attempted in order to impregnate the patient with ideas that may prevent a further, more subtle, and more menacing rape: the rape that the illness perpetrates upon the patient, and the rape that a sick society maintains upon a few of its sicker members.

(b) Public awareness of the STU programs

[27] As the trial judge recognized, the STU programs were not hidden at the time. He found that, in many ways, the doctors who ran the STU were transparent about what they were doing. For instance, in addition to the article “Buber Behind Bars”, mentioned above, Dr. Barker published numerous other articles about the programs: see, for e.g., E.T. Barker & M.H. Mason, “The Insane Criminal As Therapist” (1968) 10:4 Can. J. of Corrections 3; E.T. Barker, M.H. Mason & J. Wilson, “Defence-Disrupting Therapy” (1969) 14:4 Can. Psych. Assoc. J. 355; E.T. Barker & A.J. McLaughlin, “The Total Encounter Capsule” (1977) 22:7 Can. Psych. Assoc. J. 355.

[28] The trial judge further found that Dr. Boyd publicized the STU programs through the media. For example, he was interviewed as part of a 1975 BBC documentary entitled “Oak Ridge Mental Hospital”. The trial judge noted that, in that interview, Dr. Boyd stated that the impugned programs were modelled on “brainwashing” techniques used in China during its cultural revolution, including the use of DDT drugs.

[29] In addition, the STU programs were subject to external reviews. In 1976, Ontario’s Ombudsman retained experts to undertake an independent evaluation of the STU programs: Pieter Butler, Alan Long & Peter Rowsell, Evaluative Study of the Social Therapy Unit (Ontario Ombudsman, 1977), at p. 46. The House of Parliament Standing Committee on Justice and Legal Affairs struck a Subcommittee on the Penitentiary System in Canada in 1976, whose mandate included a review of the STU Programs: The Sub-Committee on the Penitentiary System in Canada, Standing Committee on Justice and Legal Affairs, Report to Parliament (Second Session of the Thirtieth Parliament, 1976-1977). In 1985, not long after the STU programs were discontinued, a committee of specialists investigated and published a report on Oak Ridge: Steve Hucker, Oak Ridge: A Review and an Alternative (Toronto: Ministry of Health, Ontario: 1985). These reports formed part of the evidentiary record before the trial judge.

(c) DDT program

[30] Patients in the Defence Disruptive Therapy, or DDT, program were given high doses of mind-altering drugs, including dexamyl, dexedrine, methedrine, dextro-amphetamine, amytal, alcohol, tofranil, and scopolamine. As discussed below, LSD was also used as part of the DDT program.

[31] Although many of the DDT patients had a propensity to act out violently, the drug sessions were not necessarily carried out in the presence of professional staff. Rather, the patients were observed by fellow patients, which made the DDT program economically feasible. As Dr. Barker described in “Defence-Disrupting Therapy”, at p. 356, if necessary, patients were secured by using a locked canvas wrist strap, which was attached to the wrist of an unmedicated patient, who acted as an observer.

[32] Dr. Barker vividly described the “disruptive” effect of the drug treatments in “Defence Disruptive Therapy”, at p. 357:

We find that the pulse rate usually rises by the fourth day to a rate of 140-160 when the patient is standing, and it is suspected that this and the occasional hyperventilating and vomiting that occur are mostly due to the extreme anxiety evoked. There is always a reduction in the patient’s appetite and he eats little during the period of administration. Sleeping is curtailed or eliminated completely.

The patient experiences drowsiness, fatigue and disinterest in his surroundings, interspersed with delirious episodes which are accompanied by hallucinations and floridly ‘psychotic’ behaviour. Contact with ‘reality’ is highly irregular and recall of events is patchy, the main presenting feature being a general lack of pattern to the sequence of experience and behaviour. Considerable paranoia is exhibited by most patients.... Most of these experiences disappear within twenty-four hours of the final injection.

However, what seem to be the most useful effects occur during the weeks after drug administration, which appears to be a defence-readjustment period. It has been found that patients experience more anxiety for periods of up to two months following the termination of treatment. They seem less well defended, more sensitive, restless and troubled.... Our experience suggests that subsequent courses of DDT increase the degree and duration of the anxiety experienced. We think also that the more prolonged and complete the period of delirium, the more are these delayed effects displayed.

[33] The trial judge found that virtually all the respondents who were part of the DDT program were told that the drug experiences would break down their defences, but none of them were told of the therapeutic benefit of the drugs. Similarly, he found that while Dr. Barker and Dr. Maier gave substantial thought to breaking down their patients’ personalities, neither gave much serious thought to reconstructing them.

(d) Use of LSD

[34] While the use of LSD was technically part of the DDT program, the trial judge found it occupied a “special place in the life of the STU” and so he dealt with it separately in his reasons.

[35] The use of LSD at Oak Ridge was started by Dr. Barker in 1967, who submitted a proposal to Dr. Boyd for a controlled study of LSD. At trial, Dr. Maier conceded that the LSD program was experimental. He testified that at the time LSD was used in the STU, the popular view in the medical community was that it was destructive since it induced psychosis and caused adverse effects such as severe hallucinations.

[36] For the most part, LSD was administered to patients in the Capsule, which is described below. In preparation for their LSD sessions, patients were given a reading list. It contained no medical literature but rather included Eastern religious texts (Tibetan Book of the Dead, Tao Te Ching, and The Bhagavad Gita) and writings of 1960s-70s counterculture authors (Aldous Huxley, Carlos Castaneda, and Timothy Leary).

[37] The use of LSD at Oak Ridge culminated in a mass “trip” organized by Dr. Maier in 1975. It involved drugging more than two dozen patients at the same time. Dr. Maier’s expressed intention was to encourage a collectively shared experience of self-knowing among a group of patients diagnosed with schizophrenia and as “psychopaths”. This mass trip was described as a “breaking point”. Other unit directors and treatment department heads expressed concern about the direction the LSD program had taken. Attendant staff eventually rebelled against having to deal with so many drugged patients.

(e) Total Encounter Capsule

[38] The Capsule program involved locking groups of naked patients in an eight foot by ten foot soundproof room that was constantly lit. The windowless room had an exposed toilet and no furniture. Patients ingested food and water from straws protruding from holes in the walls and were subjected to sleep deprivation.

[39] Patients were confined in the Capsule for periods ranging up to 11 days, during which time other patients monitored their interactions through closed-circuit television and a one-way mirror.

[40] Patients in the Capsule were frequently restrained or strapped to other patients and injected with DDT drugs to lower their inhibitions. It was common to pair “opposites” together – more submissive patients with more domineering patients. For instance, Danny Joanisse, who was a small 14-year-old boy at the relevant time, testified to a vivid memory of the STU in which he spent several days in the Capsule with a convicted pedophile murderer named George White.

[41] The Capsule was entirely unique to the STU at Oak Ridge. As one expert testified on behalf of the respondents, “[i]t didn’t exist before, it doesn’t exist afterwards, it didn’t exist… anywhere else that there was any kind of therapeutic community type setting.”

(f) Motivation, Attitude and Participation Program

[42] The Motivation, Attitude and Participation Program, or MAPP, has been variously described as a program of “severe deprivation” (in a 1973 annual review of the STU); a “remorseless re-educative experience which carries a heavy psychological burden” and “mental torment” (in the above-mentioned Evaluative Study commissioned by the Ontario Ombudsman); and a “harsh sanctioning process” designed to create symptoms of psychological distress (in testimony by Dr. Thomas Gutheil, an expert for the appellants). Indeed, the respondents were unanimous in their testimony that the most harsh and difficult of the three STU programs was MAPP. While Dr. Barker described the purpose of the program as educational rather than punitive, the trial judge found that “[a] close look at the actual content of the MAPP reveals that the line between conveying a lesson and punishing a non-cooperative patient was so thin as to be invisible.”

[43] Referral to MAPP was at the discretion of other patients – so called “patient-teachers”. According to the Evaluative Study, the criteria for admission to MAPP were flexible:

Admission is on the basis of behaviour that demonstrates a severe relapse to the members of the Social Therapy Unit. Generally speaking, this is acting out, such as making threatening remarks or striking somebody; – or acting in, which is displaying suicidal behaviour. It can be prescribed for undermining (undesirable destructive words or actions). Should a man not mix or talk or generally interact for more than what is thought to be a desirable period of time, he will go to [MAPP], where he will have to interact. There was considerable discrepancy as to whether ordinary criticism or exasperation expressed in the course of group work, or ward committees, would qualify one for this treatment.

[44] The MAPP process began with patients being subjected to several days of solitary confinement, without a bed or their own clothing. Instead, they slept on a raised cement platform and could only wear a heavy sack gown, dubbed a “baby doll”.

[45] The period of solitary confinement was followed by a minimum of 14 days of sitting on a bare terrazzo floor, unable to move without the patient-teacher’s permission. Some patients described this “positional torture” – to use the language of one of the respondents’ experts, Dr. John Bradford – to be the most painful part of MAPP. Others testified that the worst part of MAPP was the punishment at the whim of other patients.

[46] In order to leave MAPP, a patient needed to have 14 consecutive “perfect” days, which involved a satisfactory demonstration of motivation, attitude, and participation, as judged by other patients. The Evaluative Study found that while “[r]eferral to [MAPP] is so flexible as to be capable of abuse”, “release from it is difficult.”

[47] Some patients were subjected to a slightly modified version of MAPP, which was referred to as “MotoPro” or “mini-MAPP”. To be released from mini-MAPP, one had to be on “perfect” behaviour and maintain the requisite physical immobility for 10 consecutive days, rather than the 14 consecutive days required for MAPP.

(5) Trial judge’s reasons

[48] The trial judge recognized that this was not a class action, but rather each respondent brought individual claims and had their own individual stories. He also recognized that the claims were not based on the theory or design of the STU programs but rather on the programs’ direct, individualized operation on the respondents. That said, he began his reasons by describing the general features of the three STU programs, as they were essentially the same for each of the respondents. He also discussed the issue of informed consent before considering the respondents’ individual histories and causation. Finally, he dealt with each of the causes of action – breach of fiduciary duty, battery, assault, and the intentional infliction of emotional distress. He found that Ontario and the Physicians, in various combinations, were liable to each of the respondents “for having caused them varying degrees of harm by breaching their fiduciary duties and by perpetrating assault and battery.”

[49] The trial judge dealt with damages issues in a separate set of reasons, which began with a review of the general principles governing the damages claims. He then assessed each respondent’s damages. In total, the damages awarded against the appellants equalled $9,585,500.

[50] In the course of his reasons on liability and damages, the trial judge made a number of damning findings about the STU programs and the nature of the appellants’ conduct. For instance, he described the conduct in issue as “flagrant and outrageous”. He found that the Physicians “took great risks to the detriment of their patients” and misused their power and authority over the respondents “in a systemic way”. He also found that the Physicians acted “contrary to the prevailing medical ethics of their day by engaging in experimental, harmful, and, arguably, recklessly designed and implemented programs” and that they “failed to obtain the kind of fully informed, freely given consent that they were obliged to obtain, primarily due to the near impossibility of obtaining that kind of consent in a coercive environment such as Oak Ridge.” Indeed, the appellants’ own experts “could not identify another institution in the world where programs similar to the Capsule, MAPP and DDT were used as purported treatment for personality disorders or schizophrenia.”

[51] On the other hand, the trial judge found that the Physicians’ “intentions … were not quite as bad as the [bad] programs.” The programs “were calculated – a miscalculation, as it turns out – to produce immediate harm but beneficial long-term psychiatric effects.” He also recognized that “the programs had the full approval of not only Dr. Boyd and the Penetanguishene administration, but the government of Ontario as both [the] regulator and public body ultimately responsible for the institution.” He found that there “was no coverup of the STU programs, and … no ulterior motives on the part of the Doctors – no personal profit or professional aggrandizement came of them.” He noted that, in fact, “the Ombudsman's office, in a series of reports, gave what was essentially a seal of approval for the programs during their active lifetime.”

[52] With that background in mind, we now turn to an analysis of the issues.

C. DISCUSSION

(1) Fiduciary duties

[53] The trial judge found that Ontario and the Physicians owed and breached fiduciary duties to the respondents. He rejected Ontario’s argument that Crown immunity absolved it from liability for breach of fiduciary duty. He also rejected Ontario’s and the Physicians’ informed consent defence. Ontario and the Physicians challenge these findings. As we explain below, we conclude that Ontario and the Physicians breached fiduciary duties owed to the respondents, except for Mr. Kierstead.[^1]

(a) Ontario owed fiduciary duties to the respondents

(i) The trial judge’s findings

[54] The trial judge, citing Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at paras. 30, 33-34, referred to the factors giving rise to an ad hoc fiduciary duty. These factors are: (1) the alleged fiduciary’s undertaking to act in the alleged beneficiary’s best interest, (2) a defined person or class vulnerable to the fiduciary’s control, (3) a beneficiary’s legal or substantial practical interest that may be adversely impacted by the fiduciary’s exercise of discretion or control, and (4) the beneficiary’s vulnerability arising from the relationship. The trial judge found that Ontario owed duties to the respondents that “were of a fiduciary nature”.

[55] In reaching that conclusion, the trial judge made the following findings:

(a) Each respondent was held as an involuntary patient at Oak Ridge, a psychiatric facility, under the complete authority and control of its doctors and administration.

(b) Ontario had responsibility for Oak Ridge, controlling and operating it through its servants, such that the duties of the psychiatric facility were imputed to Ontario. In this respect, Oak Ridge was “legally indistinguishable” from Ontario.

(c) The Mental Health Act, R.S.O. 1990, c. M.7,(and its predecessors) placed “a duty on psychiatric facilities to provide services to persons suffering from mental disorders … [including] observation, care and treatment”, as established by this court’s decision in Perez (Litigation Guardian of) v. Salvation Army in Canada (1998), 1998 7197 (ON CA), 42 O.R. (3d) 229 (C.A.), at p. 232, leave to appeal requested but appeal discontinued, [1999] S.C.C.A. No. 57.

(d) This statutory duty gave rise to a fiduciary duty under the principles in Elder Advocates. The respondents were vulnerable and entirely under the control of Ontario “whose powers in the administration of every aspect of their ‘care and treatment’ went beyond ‘the ordinary exercise of statutory power’”. Ontario stood in a position in relation to the respondents that was “much like a traditional trustee stands toward a beneficiary, or a guardian to a ward.”

(e) Ontario’s public safety and protection obligations to the public did not prevent a fiduciary duty from arising, as its obligations to the respondents and to the public did not conflict. In making this finding, the trial judge distinguished this court’s decision in Ontario v. Phaneuf, 2010 ONCA 901, 104 O.R. (3d) 392, where it was held that a fiduciary obligation to act in a person’s best interests could not extend to the point of requiring the Crown to disregard its obligation to act within the terms of court orders and the provisions of the Criminal Code, R.S.C. 1985, c. C-46.

[56] The trial judge also made certain findings as to the content or scope of the fiduciary duty imposed on Ontario. He did so by reference to both what the duty required and also what it forbade. The duty required the exercise of discretionary power over the respondents to be exercised “in good faith and in a manner consistent with the duty to provide them with observation, care and treatment”. The fiduciary duty was inconsistent with a “strictly custodial detention or punitive regime or non-therapeutic medical experimentation”. It was a “duty not to engage in an abuse of power” and required “refraining from tortuous punishment”.

(ii) Ontario’s position

[57] Ontario attacks the finding that it owed fiduciary duties to the respondents, making three central points.

[58] First, Ontario argues that the finding is based on a misinterpretation of the MHA. Properly interpreted, the MHA does not impose any duty at all. It is therefore incapable of being a statutory imposition of responsibility that can satisfy the requirement for a fiduciary duty that there be an undertaking by the fiduciary to act in the beneficiary’s best interests.

[59] Second, Ontario submits that the trial judge erred in failing to find that to impose a fiduciary duty would put Ontario in a conflict of interest, given its public interest and other statutory duties.

[60] Third, Ontario argues that the trial judge erred in relying on vulnerability of the respondents that pre-existed their relationship with Ontario at Oak Ridge, when the issue is whether there was vulnerability that arose from that relationship.

[61] In our view, the trial judge did not err in finding that Ontario owed fiduciary duties to the respondents. To explain our conclusion, we first outline the general principles applicable to when a government may be found to owe fiduciary duties; we then turn to Ontario’s specific complaints.

(iii) Government as fiduciary

[62] Some categories of relationship are per se fiduciary (for example trustee-cestui que trust, executor-beneficiary, lawyer-client, agent-principal, director-corporation, and guardian-ward or parent-child). As noted above, in order for a relationship outside of those categories to be fiduciary (in other words, for it to be an ad hoc fiduciary relationship), four elements must be established: Elder Advocates, at paras. 36, 47.

[63] First, there must be an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary in relation to specific legal, or vital or substantial practical, interests. “The party asserting the duty must be able to point to a forsaking by the alleged fiduciary of the interests of all others in favour of those of the beneficiary, in relation to the specific legal interest at stake”: Elder Advocates, at para. 31, and see paras. 30, 35, and 36.

[64] The required undertaking may be found in the relationship between the parties (as is the case in per se fiduciary relationships), in the express or implied terms of an agreement, or in “an imposition of responsibility by statute”: Elder Advocates, at para. 32. In the latter case, where government is said to be a fiduciary because an undertaking flows from a statutory imposition of responsibility, “the language in the legislation must clearly support it”: Elder Advocates, at para. 45. There must be more than the “mere grant to a public authority of discretionary power to affect a person’s interest”: Elder Advocates, at para. 45.

[65] Second, there must be a defined person or class of persons vulnerable to the alleged fiduciary’s control, in the sense that the fiduciary has a discretionary power over them: Elder Advocates: at paras. 33, 36.

[66] Third there must be “a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control”: Elder Advocates, at para. 36. The party seeking to establish an ad hoc fiduciary duty “must be able to point to an identifiable legal or vital practical interest that is at stake”, which the alleged fiduciary’s power may affect: Elder Advocates, at paras. 34-35.

[67] Fourth, the claimant must establish these three factors in addition to showing vulnerability arising from the relationship – that the “beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power”: Elder Advocates, at para. 27, and see paras. 28, 36.

[68] The factors that identify a fiduciary duty are the same whether the alleged fiduciary is a private person or government. But the nature of a fiduciary duty − to be loyal to the interests of the beneficiary rather than to mediate between interests − can be at odds with the government’s broad responsibility to act in the public interest. Situations in which a government will owe a fiduciary duty to a particular person or group are therefore limited. A “rigorous application of the general requirements for fiduciary duty will of necessity limit the range of cases in which a fiduciary duty on the government is found”: Elder Advocates, at para. 54, and see paras. 27, 44, 48, and 58.

[69] Against this backdrop, we turn to Ontario’s central arguments.

(iv) Undertaking by Ontario flowing from the MHA

[70] Ontario does not contest the trial judge’s findings that Ontario controlled and operated Oak Ridge, a psychiatric facility, or that they were “legally indistinguishable” such that any of Oak Ridge’s responsibilities as a psychiatric facility were legal responsibilities of Ontario. It argues, however, that the trial judge was wrong to conclude that the MHA imposed any duty at all on Oak Ridge to the respondents, let alone one that constituted an undertaking to act in the respondents’ best interests. Thus, argues Ontario, a necessary factor to constitute a fiduciary relationship between Ontario and the respondents was absent.

[71] We reject this argument.

[72] Ontario’s argument that the MHA provides only an authorization to observe, care for, and treat patients, but no duty to do so, sails against settled law. That the MHA imposes a duty of observation, care, and treatment on a psychiatric facility in favour of patients suffering from mental disorders was conclusively established in this court’s decision in Perez, where the court stated, at p. 232:

Counsel undertook a detailed review of the Act and its regulations. Read together, they clearly place a duty on psychiatric facilities to provide services to persons suffering from mental disorders. For patients in those facilities, those services include observation, care and treatment. The Act recognizes and gives statutory force to the duty to treat those who are patients in the facility. A duty to observe, care and treat necessarily implies a duty to take reasonable steps to provide a safe environment for patients who are undergoing observation, care and treatment in a psychiatric facility.

[73] Contrary to Ontario’s submission, the statement in Perez was properly relied on by the trial judge. It was not obiter. The issue in Perez was whether a claim against a psychiatric facility by the family of an involuntary patient – who smashed a window, climbed onto a ledge, and fell to his death – was subject to a limitation period that applied to things done or omitted to be done “in pursuance” or “intended pursuance” of the MHA, which the court construed to mean things done or omitted to be done in the execution of a statutory duty in the MHA. It was accordingly necessary for the court to determine what the statutory duty in the MHA was.

[74] Nor do we agree with Ontario that it matters that the claim in Perez was based in negligence. The court in Perez first described the duty imposed by the MHA as the “duty to observe, care and treat”. It derived, from that statutory duty, a duty to take reasonable steps to provide a safe environment. But nothing suggests that the statutory duty only implies a duty of care. A person may owe a duty of care and also be subject to a fiduciary duty.

[75] Ontario further argues that the trial judge conducted his own flawed analysis of the MHA from which he drew the same flawed conclusion as Perez did about the statutory duty imposed by the MHA. Ontario complains, for example, about the trial judge’s references to definitions in the legislation and to provisions in the regulations under the MHA on the grounds that definitions in themselves do not impose duties and regulations are not authorized to have that effect. We disagree with Ontario’s implicit contention that each provision should be examined in isolation. The definitions that the trial judge referred to, for example, define a “psychiatric facility” as one for the observation, care, and treatment of persons suffering from mental disorder, and a “patient” as a person who is under “observation, care and treatment” in a psychiatric facility. Considered together with the balance of the statute and its regulations, the definitions are part of the entire fabric of the MHA scheme, which Perez holds clearly placed a duty on psychiatric facilities.

[76] In our view, the statutory duty that is imposed on a psychiatric facility in the MHA – of observation, care, and treatment of persons suffering from mental disorders – is the type of “imposition of responsibility by statute” that constitutes an undertaking by the psychiatric facility to act in the best interests of the beneficiaries of the duty (the patients) in respect of specific legal or substantial practical interests at stake (their mental health and their related physical safety while undergoing care and treatment for their mental health). It was not the mere grant of a discretion to the psychiatric facility to affect a person’s interests: Elder Advocates, at paras. 32, 36, 45 and 51.

[77] We reject Ontario’s argument that “[t]he statutory authorization for the observation, care and treatment of patients was not for the benefit of the [respondents]” but, rather, was “for the benefit of the public – to treat dangerous patients so that they could be safely released back into the community.” Put simply, a statutory obligation of a psychiatric facility of observation, care, and treatment of a patient suffering from a mental disorder is one that necessarily implies that in the exercise of the psychiatric facility’s power and responsibility in connection therewith, it will act solely in the patient’s best interests. There would be little meaning to the concept of “observation, care and treatment” of a person with a mental disorder in a medical facility were it otherwise. And there is a strong correspondence, given the statutory imposition of responsibility, with the relationship that exists between a patient and doctor, which, as we discuss below, is a fiduciary relationship: Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 S.C.R. 226, at pp. 271-72.

(v) Ontario not placed in position of conflict of interest

[78] As Ontario points out, situations in which a fiduciary duty will be imposed on government will be few, as government’s broad responsibility to society as a whole will generally be at odds with a duty to put a specific person’s or group’s interests first: Elder Advocates, at para. 44. Ontario argues that this court’s decision in Phaneuf shows how that consideration should here have led to a finding that there was no fiduciary duty.

[79] In Phaneuf, the plaintiff was ordered assessed at a psychiatric facility pursuant to s. 672.11 of the Criminal Code and detained in that facility or a detention centre during the term of the assessment order. The plaintiff claimed, among other things, that Ontario breached its fiduciary obligation to her when she was not transferred immediately from the detention centre to hospital. It was in that context that this court stated that a fiduciary duty could not extend to require Ontario to act contrary to court orders and the Criminal Code: at para. 22.

[80] The trial judge distinguished Phaneuf and found that no conflict existed between the fiduciary duty to the respondents and Ontario’s other duties. He stated:

The case at bar poses a similar question [to that in Phaneuf] in a substantially different context. It is not part of the Crown’s custodial duty to administer mind altering hallucinogens or pain and anguish-inducing Scopolamine to the Plaintiffs. The Crown has no public safety obligation to place the Plaintiff stark naked in isolated and close quarters with each other in the Capsule, or to require them to sit rigidly immobile for hours on end in MAPP at the mercy of another patient, or ‘patient-teacher’, with a mental health background similar to their own. There is no conflict between the “observation, care, and treatment” duty of the Crown toward the Plaintiffs and the protection and safety obligation of the Crown toward the public. The only conflict that arises between them is a result of the breach of the fiduciary duty; it is not a result of the existence of a fiduciary duty such as to make that existence a logical impossibility.

[81] We see no error in these conclusions. Put somewhat differently, it is important to consider the scope of the fiduciary duty in deciding whether it would conflict with the government’s public interest duties. “[T]he precise legal or equitable duties the law will enforce in any given relationship are tailored to the legal and practical incidents of a particular relationship”: Hodgkinson v. Simms, 1994 70 (SCC), [1994] 3 S.C.R. 377, at p. 413. Fiduciary duties are focused on specific legal or substantial practical interests at stake for the beneficiary; it is in relation to those interests that the fiduciary must act with loyalty to the beneficiary alone: Elder Advocates, at para. 36. We do not accept that acting solely in the best interests of the respondents in connection with the observation, care, and treatment of their mental health conflicted in any way with other duties of Ontario. Nor was treating the respondents as they were treated in the STU’s MAPP, DDT, and Capsule programs necessary for Ontario to fulfill any duty to the public, such as to keep the respondents in safe custody and to keep the public safe from the respondents.

[82] Elder Advocates makes it clear that the factors that determine whether a fiduciary relationship exists with a private party also determine whether one exists with government. It is the rigorous application of those factors that limits the range of situations in which a fiduciary relationship with government will be established. Where that rigorous application results in a finding of a fiduciary duty, its existence cannot be negated by concerns about conflicts of interest that depend on overstating the reach of the fiduciary duty or the reach of the government’s other duties.

[83] We therefore reject this ground of appeal.

(vi) Vulnerability of respondents properly considered

[84] Ontario argues that the trial judge found a fiduciary duty solely on the basis of the respondents’ vulnerability and, moreover, on the basis of vulnerability that pre-existed their relationship with Ontario at Oak Ridge. The fact that some of the respondents had pre-existing vulnerabilities – that some were minors, that they suffered from mental disorders, and that they were confined in a secure psychiatric facility due to those disorders, their dangerousness, and court and Review Board orders – could not give rise to a fiduciary duty.

[85] We reject this argument.

[86] First, the trial judge did not find a fiduciary duty solely by considering vulnerability. He cited Elder Advocates, which holds, at para. 28, that vulnerability alone is not a sufficient basis to find such a duty. And he examined factors beyond vulnerability; for example, he considered the MHA, the nature of the duty it imposed, and how the statutory duties and undertakings in it led to a fiduciary duty according to the principles in Elder Advocates.

[87] Second, the trial judge cannot be faulted for having considered the respondents’ pre-existing vulnerabilities, as they were relevant to understanding the vulnerability that would arise from the relationship with Ontario at Oak Ridge. Vulnerability that arises from matters external to the relationship with the alleged fiduciary is a relevant consideration; the more relevant consideration is vulnerability that arises from the relationship itself: Galambos v. Perez, 2009 SCC 48, [2009] 3 S.C.R. 247, at para. 68.

[88] From his reasons as a whole, it is clear that the trial judge focused on, and did not overlook, the more relevant consideration of vulnerability arising from the relationship. He expressly referred to the control Ontario, through its employees, had over every aspect of the respondents’ care and treatment as persons suffering from mental disorders. We interpret him to have found that a person being observed, cared for, and treated for a mental disorder is vulnerable to the way the observation, care, and treatment is administered by the person who has complete control over it. There is no error in this finding.

(vii) Ontario not immune from breach of fiduciary duty claim

[89] Ontario argues that it is immune “from claims for damages in equity without exception” since “immunity has never been waived by statute or by express waiver in this action”.[^2] Ontario submits that the trial judge erred in finding that Crown immunity did not bar the fiduciary duty claim. The trial judge summarized his rejection of Ontario’s immunity argument as follows:

[1271] The wording of the statute indicates, however, that Crown immunity applies only to claims in tort, not in equity. Section 11(4) of [the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17 (“CLPA”)], which establishes (or reiterates) the immunity, refers only to negligence and the duty to take reasonable care – i.e. the duty of care in negligence. This limited scope is in keeping with the historical development of Crown immunity.

[1272] In Dolmage v Ontario, 2010 ONSC 1726, Cullity J. traced the history of immunity in some detail. He explained, at paras 76-125, that Crown immunity from claims in tort was historically a construct of the common law courts. Crown immunity legislation in its various historic incarnations, in effect, abolished the judicially created immunity insofar as it was applied to non-policy decisions. However, there was never Crown immunity for claims of breach of fiduciary duty or other claims in equity.

[1273] Indeed, in M(K) v M(H), 1992 31 (SCC), [1992] 3 SCR 6, at para 73, La Forest J. observed that the Canadian development of the “fiduciary principle” as a ground for claiming compensation from the Crown only commenced with Guerin v Canada, 1984 25 (SCC), [1984] 2 SCR 335. Justice Cullity reasoned in Dolmage, at para 87, that Crown immunity for a claim of breach of fiduciary duty could therefore not arise from a statutory intervention such as PACA that pre-dated it. Other forms of equitable relief against the Crown were always available, without any issue of immunity arising or any waiver of immunity required. “Any doubt whether declaratory relief could be granted in respect of equitable rights against the Crown was removed by the landmark decision in Dyson v Attorney-General, [1911] 1 KB 410 (CA)…[which] held that declaratory relief…could be granted in an exercise of the inherent equitable jurisdiction of the court without recourse to the petition of right procedure and the necessity of a fiat”: Dolmage, at para 111.

[1274] The breach of fiduciary duty by Oak Ridge as a Crown institution was, like all institutional conduct, perpetrated through its staff. As already noted, any one or more of Dr. Barker, Dr. Maier, Dr. Boyd, Dr. Tate, or Dr. O’Reilly was directly involved in the individual treatment of the Plaintiffs in the STU and in causing them individual harm. That involvement constituted a breach of fiduciary duty to the Plaintiffs and is actionable as such.

[1275] Crown immunity does not bar such equitable claims; but even if claims in equity operated on the same basis as claims in tort such that Crown immunity could potentially or in theory apply, it would not operate here. Sections 11(4) and (5) of the CLPA would in any case not apply. The Crown, through the identified Crown actors, caused or contributed to the harm that each of the individual Plaintiffs suffered by the unethical, and thereby inequitable, imposition of STU treatments directly on them. These were not discretionary decisions made out of public policy considerations; they were direct treatment decisions and actions. The Crown is not immune from a claim based on these breaches of fiduciary duty, either directly or on a vicarious liability basis.

[90] Ontario submits that this reasoning is flawed in part because it – and the decision in Dolmage v. Ontario, 2010 ONSC 1726, 6 C.P.C. (7th) 168, leave to appeal refused, 2010 ONSC 6131, 6 C.P.C. (7th) 221 (Div. Ct.), that it relies on – fails to appreciate relevant distinctions in the principal cases cited. In particular, Ontario submits that:

• Dyson v. Attorney-General, [1911] 1 K.B. 410 (Eng. C.A.), only contemplates equitable claims against the Crown when declaratory relief, rather than damages, is claimed.

• M.(K.) v. M.(H.), 1992 31 (SCC), [1992] 3 S.C.R. 6, was a claim against British Columbia, which had enacted a waiver of Crown immunity that was wider ranging than Ontario’s.

• Guerin v. The Queen, 1984 25 (SCC), [1984] 2 S.C.R. 335, was a case where a statutory provision imposed fiduciary obligations on the Crown, as the trustee of a trust established by statute, and by virtue of the statutory provision the Crown waived its immunity from claims in equity made by the beneficiaries of that obligation.

[91] It is unnecessary to review each of these distinctions because, in our view, the decision in Guerin is fatal to Ontario’s position.

[92] In Guerin, the Supreme Court restored a damages award against the Crown. Wilson J. held, at p. 349, that the Crown was, with respect to the uses to which reserve land could be put, subject to “a fiduciary obligation to the Indian Bands … and that s. 18 [of the Indian Act] is a statutory acknowledgment of that obligation”. Dickson J. made the same point, at p. 376:

[T]he nature of Indian title and the framework of the statutory scheme established for disposing of Indian land places upon the Crown an equitable obligation, enforceable by the courts, to deal with the land for the benefit of the Indians. This obligation does not amount to a trust in the private law sense. It is rather a fiduciary duty. If, however, the Crown breaches this fiduciary duty it will be liable to the Indians in the same way and to the same extent as if such a trust were in effect.

[93] In Guerin, the legislation contained no express waiver of Crown immunity. But as Ontario’s argument concedes, Guerin entails the conclusion that where legislation imposes an obligation that gives rise to duties of a fiduciary nature on the Crown, it must be taken as waiving Crown immunity for breach of that obligation.

[94] That is precisely the situation here. The MHA imposed a duty on Ontario, which constituted an undertaking to act in the best interests of the respondents from which a fiduciary obligation was derived. It would make little sense to conclude that the legislation created that obligation but left the fiduciary immune from the consequences of its breach.

[95] In our view, the provisions of the MHA that (within the meaning of Elder Advocates) clearly support a finding of an undertaking necessary to establish a fiduciary obligation also override Crown immunity for breach of that obligation through clear and unequivocal language: Canada (Attorney General) v. Thouin, 2017 SCC 46, [2017] 2 S.C.R. 184, at para. 1.

[96] Ontario also makes a narrower immunity argument. It points out that under s. 11(4) of the CLPA, Ontario is not liable “in respect of any negligence or failure to take reasonable care in the making of a decision in good faith respecting a policy matter”. Although it concedes that this defence was raised at trial in response to a negligence claim (which was abandoned), Ontario submits that “the trial judge erred by finding liability in equity rather than negligence so as to circumvent Crown immunity.” It argues that the reasons for Crown immunity arising out of policy matters are “the same whether the claim is pleaded in negligence or equity”, as government must be free to try to achieve societal balances by making policy choices that will harm some and benefit others.

[97] The substratum of Ontario’s argument falls away, however, when the nature of a fiduciary duty is considered. A fiduciary duty is founded on an undertaking of the fiduciary to act in the best interests of the beneficiary in relation to specific legal, or vital or substantial practical, interests. It does not contemplate balancing interests but rather putting the interests of the beneficiary first: Elder Advocates, at para. 43. Having been found to be in a fiduciary relationship with the respondents with respect to specified interests, Ontario’s argument – that it remained free within the scope of the fiduciary relationship to make policy choices that “benefit some while causing harm to others” – is a contradiction in terms if those harmed are the beneficiaries of its fiduciary duty.

[98] In any event, the trial judge considered whether the conduct of Ontario involved decisions relating to a policy matter as defined in the CLPA. He considered the definition of “policy matter” in s. 11(5)(a), as elaborated upon in ss. 11(5)(b) and (c) and the relevant case law, and concluded that these sections had no application to the impugned conduct.

[99] As set out above, the trial judge stated:

Sections 11(4) and (5) of the CLPA would in any case not apply. The Crown, through the identified Crown actors, caused or contributed to the harm that each of the individual Plaintiffs suffered by the unethical, and thereby inequitable, imposition of STU treatments directly on them. These were not discretionary decisions made out of public policy considerations; they were direct treatment decisions and actions.

[100] We see no error in this conclusion, which was open to the trial judge and is entitled to deference in this court.

(b) The Physicians owed and breached fiduciary duties to the respondents

[101] The Physicians raise three key issues concerning the trial judge’s finding that they owed and breached a fiduciary duty to the respondents:

(i) The trial judge erred in finding that the Physicians were in a fiduciary relationship with the respondents because he did not address whether the Physicians undertook to act in the best interests of the respondents;

(ii) The trial judge did not address a key defence of the Physicians – namely whether their care met the applicable standard at the time – thus his reasons were inadequate; and

(iii) Assuming the Physicians did owe fiduciary obligations to the respondents, the trial judge erred by conflating ethical duties with fiduciary duties and in not resolving conflicting evidence regarding ethical duties.

[102] We reject these arguments.

(i) Requirement for an undertaking met: the Physicians are per se fiduciaries

[103] The trial judge found the Physicians to be in a fiduciary relationship with the respondents because “[t]he physician-patient relationship has long been considered to be a fiduciary one”. In other words, he considered the relationship to be per se a fiduciary relationship. In our view, he was correct to proceed on that basis. In light of this conclusion, it is unnecessary for us to address whether an ad hoc fiduciary relationship existed between the Physicians and the respondents insofar as the Physicians were acting as researchers.

[104] A doctor-patient relationship has been described by this court as one of “trust and confidence” and as one to which the principles applicable to cases of breach of a confidential or fiduciary relationship extend: Kenny v. Lockwood, 1931 184 (ON CA), [1932] O.R. 141 (C.A.), at p. 155.

[105] Kenny was cited with approval in McInerney v. MacDonald, 1992 57 (SCC), [1992] 2 S.C.R. 138. La Forest J. characterized the doctor-patient relationship as fiduciary and went on to note, at p. 149:

In characterizing the physician-patient relationship as “fiduciary”, I would not wish it to be thought that a fixed set of rules and principles apply in all circumstances or to all obligations arising out of the doctor-patient relationship … [N]ot all fiduciary relationships and not all fiduciary obligations are the same; these are shaped by the demands of the situation. A relationship may properly be described as “fiduciary” for some purposes, but not for others. That being said, certain duties do arise from the special relationship of trust and confidence between doctor and patient. Among these are the duty of the doctor to act with utmost good faith and loyalty, and to hold information received from or about a patient in confidence. [Citations omitted.]

[106] Similarly, in her concurring opinion in Norberg, McLachlin J. noted that aspects of the doctor-patient relationship may be described as contractual, or as governed by the law of negligence, but went on to say: “[P]erhaps the most fundamental characteristic of the doctor-patient relationship is its fiduciary nature. All the authorities agree that the relationship of physician to patient also falls into that special category of relationships which the law calls fiduciary”: at p. 271 (emphasis in original). She explained, at p. 272, the role the fiduciary characterization plays in regulating key aspects of the relationship:

I think it is readily apparent that the doctor-patient relationship shares the peculiar hallmark of the fiduciary relationship – trust, the trust of a person with inferior power that another person who has assumed superior power and responsibility will exercise that power for his or her good and only for his or her good and in his or her best interests. Recognizing the fiduciary nature of the doctor-patient relationship provides the law with an analytic model by which physicians can be held to the high standards of dealing with their patients which the trust accorded them requires.

[107] We do not accept the proposition that because Elder Advocates did not include the doctor-patient relationship in its list of examples of per se fiduciary relationships, the above authorities cannot be relied upon. Had the Supreme Court intended to overrule these decisions, it would have done so directly.

[108] Nor do we accept the argument of the Physicians that these cases do not apply to a doctor-patient relationship where the physician is employed by Ontario to work in a maximum-security psychiatric facility such as Oak Ridge. The duty of the psychiatric facility was observation, care, and treatment of patients suffering from mental disorders, and that duty was to be implemented by the Physicians. The rationale expressed for a fiduciary duty in Norberg, to hold physicians to high standards, is acutely applicable in such a context. A psychiatric patient, voluntarily admitted to a hospital but allegedly kept there against her will, has been described by the Alberta Court of Appeal “[a]s the beneficiary in a fiduciary relationship” with her physician, a conclusion based on McInerny and Norberg: Huet v. Lynch, 2000 ABCA 97, 255 A.R. 359, at paras. 33, 39.

[109] In response to the Physicians’ argument about the unique role of doctors in a setting such as Oak Ridge and their duties to others, including the public, we reiterate the point made above: we do not see how, in the circumstances of this case, acting solely in the best interests of the respondents in relation to the observation, care, and treatment of their mental health would conflict with the Physicians’ duties to others.

[110] The argument that the trial judge did not find an undertaking therefore fails. In cases of per se fiduciary duties, the undertaking of the fiduciary to act in the best interests of the beneficiary flows from the relationship itself: Galambos, at para. 77; Elder Advocates, at para. 32. The finding of a per se fiduciary duty satisfies the requirement of an undertaking to act in the best interests of the beneficiary. The trial judge properly found the Physicians were subject to a fiduciary duty.

(ii) Reasons sufficient: standard of care argument addressed

[111] The Physicians argue that in matters of treatment, a physician’s liability is determined by whether the applicable standard of care was followed, even if the relationship with the treated party is construed as fiduciary. They argue that although compliance with the standard of care was an important aspect of their defence, the trial judge did not address it, and a new trial is required.

[112] We need not address the extent to which compliance with a standard of care would be an answer to certain types of breaches of fiduciary duty since the predicate to the Physicians’ argument is lacking.

[113] The trial judge addressed, and rejected, the proposition that the Physicians had followed the applicable standard of care:

[1173] As indicated earlier in these reasons, the impugned STU programs collided with medical ethics obligations that prevailed at the time. Professor Bernard Dickens, the only expert witness qualified as a medical ethicist, as opposed to physician or psychologist, to testify at trial, opined that the MAPP, DDT and Capsule programs “were not carried out in accordance with the ethical and professional standards of the time”. In his Reply Affidavit, he pointed out that, “even if at the time, other psychiatrists did engage in similar methods of patient management and care, this would not satisfy the ethical criterion of scientific proven effectiveness” to justify the subjection of the Plaintiffs to the programs at issue here.

[1174] In fact, Professor Dickens did not have to make such a far-reaching point. It turns out that the Defendants’ experts could not identify another institution in the world where programs similar to the Capsule, MAPP and DDT were used as purported treatment for personality disorders or schizophrenia. Defendants’ expert, Dr. Jonathan Freedman, who, as indicated earlier, conceded in his testimony that the 3 programs were experimental, described the programs as unreasonable and “very painful”. In cross-examination, Plaintiffs’ counsel put to him a description of the Capsule which came from the combined testimony of a number of the Plaintiffs, but which is almost as described by Dr. Barker himself in his published writings and verified in the Clinical Reports prepared by medical staff for each patient:

Q. The patients testified, and I’m asking you to assume, that the Capsule was a constantly lit, windowless ten-by-ten room, with an exposed toilet in the corner, lights constantly lit, no clock, patients lost track of time, didn’t know whether it was day or night, liquid food only dispensed through straws in the wall, anywhere between eight to twelve patients in the capsule group at any time. Patients were in the capsule naked… No access to a shower. No basic hygiene. They had to use the facilities in front of everyone else, often cuffed to another patient. No mattress, no blankets, no pillows… One patient, Danny Joanisse, was terrified that he was going to be abused by a pedophile or a child murderer, I can’t remember which. He slammed and banged at the door, begging to be let out, wouldn’t be let out…

[1175] After a number of clarifications and reiterations of the question, Dr. Freedman acknowledged that the program could not have met the ethical standards and obligations of medical practitioners or medical institutions applicable either then or now:

Q. Would you agree with me, sir, based on your learnings and teachings, that if the evidence I have described to you were true, about the way in which these young men were treated, coercively, and the sanctions imposed upon them, would you agree with me that, that was pretty horrific treatment, based on what you know?

A. I’ve already said that if what the plaintiffs testified to was all accepted and was true, that they went through a terrible experience.

Q. And they shouldn’t have gone through that experience, based on the standards at the time?

A. They shouldn’t have gone through it in any case.

[114] It is important to consider this ground of appeal on the terms on which it has been put forward: that the trial judge’s reasons were inadequate because he did not address the standard of care defence. The inadequacy of reasons is a ground of appeal that, when established, amounts to an error of law. But this ground is not established when the reasons permit meaningful appellate review by providing insight into how the legal conclusion was reached and what facts were relied on to reach that conclusion: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 28; Champoux v. Jefremova, 2021 ONCA 92, at para. 18. The reasons are adequate, from this perspective, even if they reveal an error of law or a palpable and overriding error of fact, as appellate review on those grounds is also available. A complaint that the trial judge accepted the wrong evidence and should have accepted other evidence cannot be conflated with a complaint that the reasons are inadequate.

[115] The trial judge articulated why he concluded that the Physicians had not followed an established standard of care, and he cited the evidence of an expert called by the respondents and one called by the appellants that led him to that conclusion. He was not required to refer to every item of evidence. Although the Physicians argue that they led other evidence that showed they followed a standard of care, the reasons leave no doubt about the evidence the trial judge did accept. Whether he was entitled to accept that evidence in the face of other evidence, or whether he misinterpreted the evidence he did accept (which the Physicians also suggest) does not go to the adequacy of the reasons since meaningful appellate review on those grounds is not foreclosed by the reasons. The point is that appellate review on those factual grounds is, understandably, simply not pursued.

(iii) No conflation of ethical and fiduciary duties or failure to resolve conflicting evidence re: ethical duties

[116] The Physicians argue that not all obligations between parties to a fiduciary relationship are fiduciary in nature: Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 34 (SCC), [1989] 2 S.C.R. 574, at p. 597. They submit that the trial judge simply took a different set of physicians’ obligations – doctors’ ethical obligations – and treated them as fiduciary obligations.

[117] The Physicians focus specifically on three findings by the trial judge of breaches of fiduciary obligations, which they say result from this conflation: (1) disregarding ethical obligations to treat the patients in a way that did not cause them further harm, (2) failing to ensure that truly voluntary and informed consent was obtained, and (3) delegating oversight and professional judgment to untrained persons, especially other patients likely to perpetrate abuse. They say that none of these are fiduciary obligations, as they do not relate to honesty, loyalty, or candour, which are the hallmark features of a fiduciary duty.

[118] We do not accept this submission.

[119] First, although a profession’s adoption of an ethical rule does not automatically make that rule a fiduciary obligation, it is not correct to say that because something is an ethical obligation it cannot be a fiduciary one. Codes of professional responsibility and behaviour can inform the content of the norms of loyalty and good faith in a fiduciary relationship: Hodgkinson, at p. 423. The trial judge was entitled to accept the evidence he did concerning professional norms applicable to the Physicians.

[120] Second, it is not correct to say that the obligations the trial judge referred to are not fiduciary because they are not about loyalty, honesty, or candour. Obtaining informed consent to do something that would otherwise be a breach of fiduciary duty is all about providing full information and honest and candid disclosure on the part of the fiduciary.[^3] And loyalty – another way of describing the obligation to act in the best interests of the beneficiary alone – is directly implicated when the fiduciary engages in a course of action that will cause harm or exposure to likely abuse.

[121] The Physicians cast the duty of loyalty too narrowly when they implicitly suggest it is focused on situations where the beneficiary’s interests are sacrificed to those of the fiduciary or of another person. The trial judge did not find that the Physicians were trying to benefit themselves by what they did. Rather, he found “no ulterior motives” on their part and “no personal profit or professional aggrandizement”. But just as a trustee may breach the duty of loyalty – the duty to act in the beneficiary’s best interests – by taking the trust property for itself or giving it to someone else, the trustee could equally be in breach of that duty by harming, devaluing, or destroying the trust property, even if no one benefitted from that happening.

[122] As McLachlin J. explained in her concurring opinion in Norberg, the fiduciary aspect of the doctor-patient relationship “provides the law with an analytic model by which physicians can be held to the high standards of dealing with their patients which the trust accorded them requires”, and the fiduciary obligation is “capable of protecting not only narrow legal and economic interests, but can also serve to defend fundamental human and personal interests”: at pp. 272, 289. On the facts of Norberg, McLachlin J. found that the duty was breached by the doctor prescribing drugs he knew the patient should not have and failing to advise her to obtain counselling for her addiction, as well as by obtaining sexual favours from the patient: at p. 270. While the latter involved preferring his own interest to that of the patient, the other breaches involved causing harm, or failing to prevent it, with no corresponding benefit.

[123] In other words, the fiduciary obligation protects interests at the core of the doctor-patient relationship. A commitment to the best interests of the patient may be violated by causing, or exposing the patient to, harm without any basis to expect a benefit from the harmful treatment, depending on the circumstances.

[124] As the Physicians point out, the fact that harm results from a medical procedure or treatment cannot on its own indicate that the doctor has breached a fiduciary obligation. Many procedures are painful and involve risks of bad consequences, and those risks are sometimes realized while hoped for benefits from the treatment or procedure are not. The fiduciary obligation is not a guarantee of no harm or of successful outcomes.

[125] What the fiduciary obligation does require is that treatment be undertaken with a view to the best interests of the patient. On the facts found by the trial judge, this was not a case of treatments that were undertaken with that view. This was not a cost-benefit analysis that went wrong. Nor did it involve an informed choice by a patient to accept the risk of harm for an uncertain benefit. What the trial judge found was that the treatments had a known certainty of harm to the respondents, and of exposure of them to likely abuse, with no reasonable basis for a belief that any benefit would be achieved, nor informed consent to that harmful mixture. The trial judge was entitled to find that a breach of fiduciary duty had occurred.

[126] With respect to the Physicians’ complaint about the trial judge’s treatment of the various experts’ evidence on ethical duties, the respondents’ expert, Professor Dickens, was qualified as a medical ethicist and gave evidence about the prevailing ethical principles. Although the Physicians criticize that evidence, it was open to the trial judge to accept it as informing the content of the Physicians’ fiduciary obligations. The Physicians’ argument about conflicting evidence is, in essence, a repackaging of their standard of care and inadequacy of reasons arguments, which are addressed above.

(c) Lack of informed consent relevant to breach of fiduciary duties

[127] Finally, Ontario and the Physicians argue that the trial judge erroneously imposed a requirement for informed consent.

[128] The trial judge held that informed consent was necessary to the treatments administered to the respondents and that, despite some efforts to seek verbal or written agreement to treatment, consent was not properly obtained. He stated:

[117] The present claim is not a medical malpractice claim, and so the question of informed consent is not a direct test for liability as it would be in such an action. Rather, the consent question goes to the ethical quality of Dr. Barker’s and Dr. Maier[‘s conduct], which in turn will inform the analysis of their fiduciary duties to the Plaintiffs. Where experimental medicine is performed on a patient with whom the doctor has a previous and ongoing physician-patient relationship, the ethical obligations on the doctor are even more strict than in the ordinary professional relationship. They certainly involve “full and frank disclosure of all information relevant to free and informed consent”: Stirrett v Cheema, 2018 ONSC 2595, rev’d on other grounds 2020 ONCA 288.

[118] Dr. Maier agreed in his examination for discovery that, while he was working on the STU, Dr. Boyd, Dr. Barker, and Dr[.] Maier himself all believed that “the treatment or the programs could be applied to [patients] regardless of whether they agreed or disagreed”, such that there was “no need to obtain [patients’] consent” for the DDT and Capsule regimes. Given the dramatic form of intervention represented by these programs, Dr. Maier’s admission is arresting.

[129] Later in these reasons, starting at para. 159, we discuss the significance, to liability for battery, of the trial judge’s finding that “truly voluntary and informed consent was not possible in the coercive environment of Oak Ridge”, and we address the appellants’ argument that informed consent was not required – that consent, even if not informed, was sufficient.

[130] On the issue of liability for breach of fiduciary duty, there is clearly no error in the trial judge’s reliance on a lack of informed consent. As between a fiduciary and beneficiary, the only type of consent that can be effective is informed consent. “Before a beneficiary can be held to have consented to a breach of trust, it must be shown that the beneficiary was fully informed of its rights and of all the material facts and circumstances of the case”: Royal Bank of Canada v. Fogler Rubinoff (1991), 1991 7071 (ON CA), 5 O.R. (3d) 734 (C.A.), at p. 744; see also Inglis v. Beaty (1878), 2 O.A.R. 453 (C.A.).

[131] The trial judge found that the appellants breached their fiduciary duties, among other ways, by subjecting the respondents to “programs that were intentionally hurtful”; by “the excessive use of confinement as a means to turn the patients around”; and by subjecting them to abuse by “patient-teachers” to whom treatment was improperly delegated. The trial judge found that truly voluntary and informed consent was not obtained. In law, this means that the conduct that constituted the breach of fiduciary duty is not excused.

(2) Intentional torts

[132] In addition to their claims of breach of fiduciary duty, the respondents asserted that the Physicians committed several intentional torts against them: battery, assault, and the intentional infliction of emotional distress. The respondents sought to have the Physicians found liable directly; they made no attempt to establish vicarious liability through other doctors or Oak Ridge employees.

[133] The trial judge held that the respondents failed to establish liability for intentional infliction of emotional distress. Based on this court’s decision in Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 45005 (ON CA), 60 O.R. (3d) 474 (C.A.), at para. 48, the respondents were required to prove that: (a) the Physicians engaged in flagrant or outrageous conduct; (b) the conduct was calculated to produce harm; and (c) the conduct resulted in mental or psychological injury. The trial judge found that, although the respondents proved (a) and (c), their claims faltered on (b), as the STU programs were not plainly calculated to produce the lasting, harmful effects that they had on many of the respondents. The respondents have not appealed the dismissal of their claims for the intentional infliction of emotional distress.

[134] The trial judge found the Physicians liable in battery and assault. They appeal both findings. They submit that the trial judge misapplied the legal requirements of both torts, and erred by making findings about the respondents as a group, rather than making findings in relation to individual respondents.

[135] The respondents submit that the trial judge properly identified and applied the law; they contend that, in reality, these grounds of appeal amount to an attack on the trial judge’s factual findings, which are entitled to deference on appeal.

[136] We agree with the Physicians that the trial judge erred in his application of the requisite elements of battery with respect to the Capsule and MAPP. We also agree that the trial judge erred in his application of the law of assault. He further erred in failing to address the claims on an individual basis. We uphold the trial judge’s finding of battery with respect to the DDT program as it relates to nine of the respondents (listed below), but overturn the finding of liability for the remainder.

(a) An introduction to the torts of battery and assault

[137] In common parlance, the terms “battery” and “assault” are often used interchangeably. Indeed, the case law demonstrates that the two torts are often “blurred together and called ‘assault’”: Hon. Allen M. Linden, et al., Canadian Tort Law, 11th ed. (Toronto: LexisNexis Canada Inc., 2018), at §2.50. In Collins v. Wilcock, [1984] 3 All. E.R. 374 (U.K. Q.B.), Goff L.J. wrote, at pp. 377: “[t]he law draws a distinction, in terms more easily understood by philologists than by ordinary citizens, between an assault and a battery.”

[138] That said, while related, battery and assault are distinct concepts in tort law, both being examples of trespass to the person: Erika Chamberlain & Stephen G.A. Pitel, eds., Fridman’s The Law of Torts in Canada, 4th ed. (Toronto: Carswell, 2020), at p. 75. As discussed below, a battery involves actual physical contact by the tortfeasor or bringing about harmful or offensive contact with another person, whereas a tortious assault involves intentionally causing another to fear imminent contact of a harmful or offensive nature: see Hurley v. Moore (1993), 1993 7769 (NL CA), 107 D.L.R. (4th) 664 (Nfld. C.A.), at para. 22; see also: Fawley v. Moslenko, 2017 MBCA 47, 413 D.L.R. (4th) 36, at para. 32.

[139] In this case, the respondents’ claims in battery are focused on what actually happened to them by virtue of their participation in all three STU programs; the assault claims relate to their assertion of a persistent fear of being placed in MAPP.

[140] With that background in mind, we turn to the issue of battery.

(b) Battery

(i) Requirement for direct interference

[141] The leading Canadian case on battery is Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551. In her majority reasons at para. 2, McLachlin J. referenced Goff L.J. in Collins v. Willock for the proposition that battery is based on the inviolability of every person’s body and physical integrity. She explained that battery requires direct interference with the person, at para. 8:

The traditional rule, as noted, is that the plaintiff in an action for trespass to the person (which includes battery) succeeds if she can prove direct interference with her person. Interference is direct if it is the immediate consequence of a force set in motion by an act of the defendant: see Scott v. Shepherd (1773), 2 Black. W. 892, 96 E.R. 525 (K.B.); Leame v. Bray (1803), 3 East 593, 102 E.R. 724 (K.B.). The burden is then on the defendant to allege and prove his defence. Consent is one such defence. [Emphasis added.]

[142] Directness is “an essential requirement for liability”: Philip H. Osborne, The Law of Torts, 6th ed. (Toronto: Irwin Law, 2020), at p. 269. (See also Cameron Jefferies & Lewis N. Klar, Tort Law, 6th ed. (Toronto: Carswell, 2017), pp. 53-54.)

[143] While battery involves “direct interference” with the person, the law recognizes that not every physical touching will constitute battery. To constitute battery the interference must be “harmful or offensive”, or contact that is “non-trivial”: Scalera, at para. 16.

(ii) Trial judge’s reasons on battery

[144] In three paragraphs of his reasons, the trial judge explained why he found that the Physicians committed battery on all the respondents who were involved in any of the STU programs. He relied on Scalera for the proposition that the tort of battery protects bodily “inviolability” in respect of non-trivial contact. He also noted that the tort may be negated by the appellants establishing consent to the contact. However, as discussed below, the trial judge found that any semblance of consent on the part of the respondents was inauthentic in the coercive environment of Oak Ridge.

[145] The trial judge’s critical findings on battery are captured in the following passage:

[1193] All 3 of the impugned STU programs amounted to a non-consensual, non-trivial invasion of the Plaintiffs’ bodily integrity. The physical regiment of MAPP, whether or not accompanied by restraints, was self-evidently an infringement of bodily inviolability, as was the stripping and placing of patients in the Capsule with unhygienic conditions and sleep deprivation, again with or without restraints. Finally, the administering of DDT drugs without properly informed consent, whether by injection or orally, constituted a physical invasion that is legally a battery. For Joseph Bonner, being placed in confinement for extended periods of time – 6 of the 9 months that he was at Oak Ridge – likewise amounted to a physically invasive battery. [Emphasis added.]

[146] In this case, the issue of battery turns on whether the respondents proved that the appellants directly interfered with their person. The Physicians submit that the trial judge failed to properly apply the elements of battery to the evidence in that the evidence did not permit a finding that either of them had direct contact with any of the respondents. In contrast, the respondents submit that the trial judge’s conclusions are supportable on the extended definition from Scalera, at para. 8: “Interference is direct if it is the immediate consequence of a force set in motion by an act of the defendant.”

(iii) No battery except for respondents who were administered DDT drugs by the Physicians

[147] As we will explain, the requirements of battery were not established except for the respondents to whom the Physicians directly administered DDT drugs.

[148] The trial judge’s analysis was true to the theoretical underpinnings of battery insofar as he found that the STU programs constituted a non-trivial invasion of the respondents’ bodily integrity. However, with respect to the Capsule and MAPP, he made no specific finding that either Dr. Barker or Dr. Maier had direct contact with any of the respondents. Nor did he find that interference with the respondents’ bodily integrity was, in the words of Scalera, the “immediate consequence of a force set in motion” by either of them. While he also approached battery based on DDT treatment broadly, he did, in the course of his reasons, refer to evidence indicating that Dr. Barker and/or Dr. Maier directly administered DDT drugs to nine of the respondents.

[149] The trial judge’s high-level approach to battery (and, as discussed below, assault) was at odds with his stated approach to the case at the beginning of his reasons, where he recognized the individual nature of the claims:

[20] The claims here are not based on the theory and design of the impugned STU programs, but rather for their direct, individualized operation by the Defendant on each of the Plaintiffs. However, to best understand the operation of the programs and the impact on each patient, it is helpful to first review the programs at a higher level of generality.

[150] When it came to evaluating liability for battery (and assault), the trial judge’s analysis remained at this “higher level of generality” rather than focused on the lived experience of individual respondents.

[151] It is not disputed that the bodily inviolability of the respondents was infringed by their experiences in the STU. It is also clear that the Physicians’ fiduciary duties were connected to what occurred. But a mere connection is an insufficient basis on which to rest liability for battery.

[152] During oral submissions, counsel for the respondents acknowledged that the application of the tort of battery to the circumstances of this case is “unconventional” or “not traditional”. However, they submit that the violation of the respondents’ bodily integrity was the “immediate consequence of a force set in motion by an act of the defendant[s].”

[153] In making this submission, the respondents point to a number of cases where courts have found that there was battery where there was indirect contact through a chain of events instigated by the defendant. For instance, they rely on the case of Sirois v. Gustafson, 2002 62881 (SK QB), 2002 SKQB 452, 226 Sask. R. 28. In that case, the defendant was found liable for battery by smashing the plaintiff’s windshield with a hammer, causing glass to break and come into contact with the occupants of the vehicle. This was a chain reaction; the impact was immediate.

[154] In this case, with the exception of the nine respondents to whom the Physicians directly administered DDT drugs, it cannot be said that anything done directly by the Physicians was the immediate cause of the harm that befell the respondents. The respondents’ submission that the violation of the other respondents’ bodily integrity was the “immediate consequence of a force set in motion by an act of the defendant[s]” fails on the modifier “immediate”.

[155] Turning first to the Capsule and MAPP, the trial judge alluded to the design and implementation of the STU programs, but he failed to make the necessary findings that it was the Physicians who placed the respondents in the Capsule or MAPP (with or without restraints) or that their placement was the immediate consequence of a force set in motion by an act of the Physicians. Moreover, the respondents have not pointed to any evidence demonstrating that the Physicians were involved in such a “hands-on” manner. Further, the respondents did not seek to advance their claims through vicarious liability. Had they been able to do so, battery may have been established for a greater number of the respondents.

[156] In view of our conclusion that the requirements of battery were not established for either the Capsule or MAPP, it is unnecessary to deal with Ontario’s claim that, if the actions of the Physicians with respect to MAPP did potentially constitute battery, they were justified by statutory authority that authorized the institutional control of the respondents while detained. Nonetheless, and although it was not addressed by the trial judge, it would appear to be a tenuous basis to justify this conduct. As noted above, even the appellants’ own expert, Dr. Gutheil, agreed in cross-examination that the largely patient-run program was a “harsh sanctioning process”.

[157] We turn now to the DDT program. As noted above, the liability findings arising from the DDT program are more complicated. For this program, the trial judge referred to evidence in the course of his reasons indicating that Dr. Barker and/or Dr. Maier had, on certain occasions, administered DDT drugs to nine of the respondents: Reginald Barker; William Brennan; Roy Dale; John Finlayson; James Motherall; Michael Pinet; Russ Johnson; Terry Ghetti; and Eldon Hardy. For these respondents, direct, non-trivial physical contact was established.

[158] In contrast, the trial judge failed to refer to evidence that Dr. Maier or Dr. Barker made direct, immediate physical contact for the remainder of the respondents that received DDT treatment. Nor have the respondents pointed to any such evidence. As such, and following from the above discussions of the Capsule and MAPP, we reverse the trial judge’s findings of liability for battery for the other respondents.

[159] For the nine abovementioned respondents, however, it becomes necessary to consider the issue of consent.

[160] The appellants claim that the respondents consented to participation in the STU programs, including the DDT program. They submit that a level of consent lower than informed consent – one of any consent at all – ought to apply to alleged battery (as opposed to a negligence claim) in a medical malpractice context: see Reibl v. Hughes, 1980 23 (SCC), [1980] 2 S.C.R. 880, at pp. 891-92.

[161] As noted above, the trial judge determined that “truly voluntary and informed consent was not possible in the coercive environment of Oak Ridge”. Consent to the DDT program specifically was “not properly informed or voluntary” on two primary grounds. First, consent was “improperly enticed” for some respondents – as was the case, for example, with the respondents “who were alcoholics who ‘consented’ to alcohol treatments”. Second, at other times consent to DDT treatment “was a result of an incentivized prodding or inducement”. There was evidence from several respondents “that they would have agreed to any program that held out the prospect of contributing to their eventual release from custody.” And as the trial judge also noted, consent to and participation in the STU programs was “tied to the Doctors’ eventual recommendation as to whether or not the Ontario Review Board should release the patients from a custodial institution.”

[162] In our view, even on a standard lower than informed consent, consent to “participate” in the STU programs, including DDT treatment, was not possible in the coercive environment of the STU.

[163] Assessing consent requires evaluating the particular factual context of a given case: Norberg, at p. 248. Here, the STU programs were, as noted by the trial judge, “degrading”, “inhumane” and an “anomaly done to a number of individuals in a single institution.”

[164] On the basis of the specific and unusual factual record in this case, it was open to the trial judge to find the appellants had not made out the defence of consent. In the circumstances, the trial judge was entitled to find that the respondents could not freely consent to DDT treatment, nor could Dr. Barker or Dr. Maier reasonably sustain the belief that they were freely consenting. Further, since the trial judge’s finding was predicated on the environment of Oak Ridge itself, he was not required to individually assess the consent of each respondent that experienced direct physical contact.

(c) Assault

(i) No assault: failure to show fear of imminent harm by individual respondents

[165] Although not specifically pleaded, in their closing submissions, counsel for the respondents submitted that Dr. Barker and Dr. Maier were also liable for assault. As the trial judge noted, the respondents identified four “varieties of assault”: (a) the threat of pharmacological restraints; (b) the threat of cuffs and other physical restraints; (c) the threat of being coerced into taking DDT drugs; and (d) the threat of being placed in MAPP or solitary confinement.

[166] Ultimately, the trial judge focused on (d) as the only realistic basis of liability for assault. His conclusions are found in the following two paragraphs of his reasons:

[1201] … [T]he threat of being placed in MAPP or, at least for Joseph Bonner, being placed in confinement, was more in line with the case law on assault… MAPP was a physically harsh, punitive regime which patients strived, out of fear, to avoid if they could. It was also one of the impugned STU programs about which this trial is concerned. Plaintiffs such as Allen McMann, who were sent to MAPP repeatedly, testified that they consented to other programs and treatments at Oak Ridge out of fear of being sent to MAPP yet again. Other Plaintiffs, such as Samuel Shepherd, testified that they were intimidated into passivity and the appearance of cooperation, for fear of being sent to MAPP. Stanley Kierstead appears to have had such a fear of MAPP that he transposed in his mind his real experience of solitary confinement at Oak Ridge with others’ narratives of MAPP.

[1202] Either way, the well-documented Clinical Records, along with the Plaintiffs’ testimony, establish that the patients at Oak Ridge lived under the shadow of the MAPP threat. In this respect, the Defendants’ design, administration, and implementation of the MAPP amounted to an assault on the Plaintiffs. This assault was perpetrated not only against those Plaintiffs who were in MAPP, but against those who were not. Its constant presence as Oak Ridge’s favoured punitive program had an impact on each of the Plaintiffs, who under the circumstances were on reasonable grounds in believing that they were in danger. As this court long ago determined, and the Court of Appeal long ago upheld, “if a person shakes his fist at another”, even without striking a blow, an actionable assault has taken place: Bruce v Dyer (SC), supra, at para 11.

[167] Ontario submits that the respondents’ claim for liability for assault was an “afterthought”, revealed for the first time during closing submissions. It contends that the trial judge improperly enlarged the claim by finding liability for causes of action not pleaded.

[168] It is unnecessary to resolve this submission since we allow this ground of appeal on other bases. However, we pause to note that the factual backdrop necessary to determine the issue of assault was thoroughly canvassed at trial. The appellants were not taken by surprise nor prejudiced by how this issue played out at trial. If anything, to the extent that the tort of assault was an “afterthought”, it was likely the reason that the evidentiary record was lacking on the elements of a tortious assault, as we now discuss.

[169] We accept the submission that the trial judge erred in his application of the law of assault by not applying the imminence requirement and by assessing assault on a class-wide basis.

[170] To identify the elements of a tortious assault, the trial judge relied on McLean v. McLean, 2019 SKCA 15, [2019] 5 W.W.R. 67, in which Whitmore J.A. of the Saskatchewan Court of Appeal reproduced the following passage from the Hon. Allen M. Linden, et al., Canadian Tort Law, 10th ed. (Toronto: LexisNexis, 2015), at §2.42:

§2.42 Assault is the intentional creation of the apprehension of imminent harmful - or offensive contact. The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs.[^4] [Emphasis added.]

[171] Imminence is a critical component of the tort of assault: see Hurley, at para. 22; Osborne, at p. 272 and Jefferies & Klar, at p. 50. As Linden et al. observe at §2.52, “[t]o threaten to do harm to someone at some future time, because this is not as likely to spur retaliation, does not amount to an assault, although it may give rise to other tortious or even criminal responsibility.”

[172] In finding that the tort had been established, the trial judge did not properly apply the immediacy requirement. Instead, he accepted the respondents’ submission that “while older decisions required an assault to be based on an imminent apprehension of harm, recent jurisprudence has determined that an actionable assault can be made out on the basis of fear of future harm.” The only case cited for this proposition was Warman v. Grosvenor (2008), 2008 57728 (ON SC), 92 O.R. (3d) 663 (S.C.). With respect, it does not support the trial judge’s holding.

[173] Warman involved a claim by a human rights lawyer who was harassed by the defendant during a relentless, two-year campaign of internet postings and email. The communications were homophobic, anti-Semitic, and threatening. The defendant posted the plaintiff’s address and phone number online. He encouraged other readers to “pay him a visit.” One of his posts concluded with the message, “I have a Ruger P-90 and its bullets have your name on them.”

[174] In allowing the claim, Ratushny J. defined the tort of assault in the following way, at paras. 58-59:

Assault is the intentional creation of the apprehension of imminent harmful or offensive conduct …. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that conduct never actually occurs ….

Conduct that intentionally arouses apprehension of an imminent battery (physical contact) constitutes an assault. Frightening or threatening someone, however, does not constitute an assault unless the event feared is imminent…. [Emphasis added.]

[175] Based on this definition, Ratushny J., concluded, at para. 60: “I am satisfied that the plaintiff is reasonably apprehensive of imminent physical contact as a result of the postings and the Emails” (emphasis added). It is clear from the language in Warman that Ratushny J. did not dispense with the imminence requirement. She applied it to a unique situation far removed from the facts of this case.

[176] As noted above, the trial judge also cited McLean, a decision of the Saskatchewan Court of Appeal. In McLean, the court considered Warman and another trial decision, Dunne v. Gauthier, 2000 BCSC 1603, which involved a conditional threat to cause harm if the plaintiff school bus driver ever drove on the defendant’s laneway again. Whitmore J.A. distinguished these cases, explicitly noting, at para. 61, that imminence is still required in cases of civil assault:

My references to Dunne and Warman, and to the suggestion in those cases that the imminent harm requirement of civil assault might not be as strict as Peter [a defendant] suggests, should not be taken as an endorsement of the proposition that imminent harm is no longer required in claims for civil assault…. Both Dunne and Warman are useful examples of how imminence might be understood, but they do not attenuate the fundamental requirements of the tort of civil assault.

[177] We agree with the analysis of Whitmore J.A.

[178] The trial judge also relied on Bruce v. Dyer, 1966 191 (ON SC), [1966] 2 O.R. 705 (H.C.), aff’d 1967 653 (ON CA), [1970] 1 O.R. 482 (C.A.), in finding that the tort of assault was established. It was this case that led the trial judge to liken what happened to the respondents to the shaking fist in the passage quoted above. In our view, the comparison is inapt.

[179] Dyer involved an incident of road rage (although it was not called that at the time). After various aggressive movements on the road, two cars pulled over. When the plaintiff got out of his vehicle, he shook a fist at the defendant, who proceeded to hit the plaintiff, causing him serious injury. The defendant prevailed on the basis that he was defending himself from the plaintiff’s assault (i.e., shaking his fist at the defendant). The trial judge in that case said, at p. 710:

Usually, when there is no actual intention to use violence there can be no assault. When there is no power to use violence to the knowledge of the plaintiff there can be no assault. There need not be in fact any actual intention or power to use violence, for it is enough if the plaintiff on reasonable grounds believes that he is in fact in danger of violence. So if a person shakes his fist at another the person so assaulted may strike back, if he, on reasonable grounds, believes that he is in danger.

When the plaintiff emerged from his vehicle waving his fist, I think the defendant had reasonable grounds for believing that he was about to be attacked and that it was necessary for him to take some action to ward it off. [Emphasis added.]

The dismissal of the action was upheld in an oral judgment of this court.

[180] This case is not a useful comparator. The plaintiff’s assault was raised as a defence to the defendant’s battery (even though it was referred to as an “assault” in that case). The trial judge did not specifically mention the element of immediacy now recognized in the jurisprudence; nonetheless, the underscored portions of the passage quoted above reveal that it was an important consideration – the defendant believed he was “about to be attacked”. Thus, immediacy played an important role.

[181] More generally, the situation faced by the respondents hardly compares to a face-to-face confrontation between two people at the side of the road. Although MAPP was omnipresent at Oak Ridge, being placed in MAPP was not inevitable; it was conduct-dependant. Not every respondent was subjected to MAPP.

[182] The respondents’ situation was similar to a prisoner serving a sentence in an institution with facilities suitable for administrative segregation. It is a correctional option that may never come to fruition for any particular inmate. It cannot be contended that prison authorities are liable to prisoners for assault when this custodial option is available. This is not to minimize the ominous nature of MAPP, and the fear and anxiety it may have instilled in some of the respondents. But all that was proved was a fear of future harm, not an apprehension of imminent harm. This was insufficient for the tort of assault.

[183] We also agree with the Physicians’ submission that the trial judge erred in finding that the existence of MAPP was an assault on all of the respondents. The trial judge erroneously concluded that the assault occurred on a class-wide basis when individual findings were necessary. To repeat his words, “the Defendants’ design, administration, and implementation of the MAPP amounted to an assault on the Plaintiffs”, including those respondents who were not in MAPP. Again, the liability of Dr. Barker and Dr. Maier appears to be tied, at least in part, to their design of the program, something the trial judge earlier said he would not base his findings upon. Moreover, missing from his analysis is any consideration of the critical imminence requirement.

[184] The trial judge made extensive factual findings in relation to all 28 respondents. He documented their experiences in the STU programs. Some of the respondents were never sent to MAPP. Among those who were, many described it as a very painful experience. Others did not. One respondent asked to return to MAPP to avoid other programs. Another respondent who had been in MAPP had no complaints about it and seemed to benefit from it. That said, the general experience of the respondents placed in MAPP was overwhelmingly negative.

[185] In his discussion of assault, the trial judge made particular mention of the experiences of “[respondents] such as Allen McMann” and “[respondents] such as Samuel Shepherd”. It is true that Mr. McMann said he participated in other programs to avoid being sent to MAPP. Another respondent, Donald Everingham, said the same thing. Douglas McCaul testified about a fear of going to MAPP. Samuel Shepherd was never in MAPP but said he was cooperative to avoid being sent to MAPP. None of these accounts, however, speak to the imminence requirements of a tortious assault. The only evidence with a flavour of imminence came from Shauna Taylor, who experienced “extreme anxiety” about the possibility of being sent to MAPP at any time.

[186] Lastly, in his discussion of assault, the trial judge also referred to the experience of Mr. Kierstead, noting that “Stanley Kierstead appears to have had such a fear of the MAPP that he transposed in his mind his real experience of solitary confinement at Oak Ridge with others’ narratives of MAPP”. This is a curious finding given the trial judge’s earlier finding that Mr. Kierstead was never in any of the STU programs and that his evidence was unreliable. This did not constitute an evidentiary foundation to infer that all respondents shared a general fear of imminent harm by being placed in MAPP.

(3) Limitation periods

[187] The appellants submit that the trial judge erred in concluding that the respondents’ claims are not statute barred. As explained below, in our view, this ground of appeal must fail.

(a) Background

(i) Statutory context: Limitations Act, 2002

[188] Before turning to the trial judge’s reasons, it is helpful to first provide some statutory context.

[189] Section 24 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, sets out the Act’s transitional provisions.

[190] Under s. 24(3) of the Act, if a former limitation period (ie., a limitation period that applied in respect of a claim before January 1, 2004) expired before January 1, 2004, no proceeding shall be commenced in respect of the claim. In this case, the appellants contend that special limitation provisions under historic legislation applied and had expired before January 1, 2004 so that the respondents’ claims are statute barred: see the Mental Health Act, R.S.O. 1970, c. 269, and Mental Hospitals Act, R.S.O. 1960, c. 236; R.S.O. 1970, c. 270; and R.S.O. 1980, c. 263.

[191] Section 24(6) of the Limitations Act, 2002 deals with the situation where there was no former limitation period. As explained below, the trial judge relied in part on s. 24(6) of the Act, which provides as follows:

24 (6) If there was no former limitation period and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after January 1, 2004, the following rules apply:

1. If the claim was not discovered before January 1, 2004, this Act applies as if the act or omission had taken place on that date.

2. If the claim was discovered before January 1, 2004, there is no limitation period.

[192] Thus, under s. 24(6)2 of the Act there is no limitation period if three criteria are met: (1) there was no former limitation period, (2) a limitation period would apply based on the current legislation, and (3) the claim was discovered before January 1, 2004.

[193] In this case, there is a dispute as to whether s. 16(1)(h.2) of the Limitations Act, 2002 applies. Under s. 16(1)(h.2) there is no limitation period in respect of a proceeding based on assault if, as discussed below, certain requirements are met. If s. 16(1)(h.2) applies, then s. 24 does not apply: see s. 24(2.1).

(ii) Trial judge’s reasons

[194] The trial judge rejected the limitations defences asserted by the appellants. In reaching that conclusion, he made several findings.

[195] First, he held that when the present claim was issued on October 25, 2000, there was no limitation period applicable to equitable claims. He also ruled that the claim was “discovered” before January 1, 2004, given that the statement of claim covering the identical claim was issued in 2000. Relying on s. 24(6)2 of the Limitations Act, 2002, he concluded that there was no applicable limitation period.

[196] Further, he found that the commencement of the action in 2000 as a proposed class action had the effect, under s. 28(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6, of tolling the limitation period for putative class members whose individual claims were continued in 2006 after certification of the class action was refused.

[197] The trial judge further concluded that the respondents could rely on the exemption under s. 16(1)(h.2) of the Limitations Act, 2002 to pursue their claims for assault, as the relationship between mental health patients and their doctors/hospitals is one that falls under that section. It provides that in a proceeding based on an assault, there is no limitation period if, at the time of the assault, the person with the claim was a minor or was “financially, emotionally, physically or otherwise dependent” on the person against whom the claim is made. Section 16(1)(h.2) applies notwithstanding the expiry of a previously applicable limitation period and includes related claims for negligence and breach of fiduciary duty: see ss. 16(1.1), (1.3).

[198] The trial judge also rejected the application of the six-month limitation periods contained in the historic MHA and Mental Hospitals Act on the basis that they were ambiguous and when there is any ambiguity, limitation periods are to be construed in favour of the person whose right of action is being truncated.

[199] Finally, the trial judge relied on jurisprudence that held that the abuse of power by medical professionals and institutions is not deserving of special protection afforded by a short limitation period: Cascone v. Rodney; Prochnicki, Third Party (1982), 1981 1748 (ON SC), 34 O.R. (2d) 618 (H.C.).

(iii) Parties’ submissions

[200] The appellants make two main submissions.

[201] First, they submit that the trial judge erred by failing to apply the special limitation periods prescribed by the MHA and Mental Hospitals Act, which they argue apply to all actions and omissions related to the provisions of health services under those Acts.

[202] Next, they submit that the trial judge erred in applying s.16(1)(h.2) of the Limitations Act, 2002. The appellants argue that this section does not apply to the claims in the present case, as the point of s. 16(1)(h.2) was to exempt sexual and domestic abuse from limitation periods. Thus, because the present action does not raise claims alleging sexual and domestic abuse, they argue that s. 16(1)(h.2) does not apply.

[203] While the appellants challenge the trial judge’s finding regarding the lack of a limitation period for a breach of a fiduciary duty, the real crux of their argument on this ground of appeal is that even if there was no limitation on claims for breach of fiduciary duty, the limitation provisions in the MHA and Mental Hospitals Act take precedence and insulate them from liability. The relevant provisions read as follows:

The Mental Health Act, R.S.O. 1970, c. 269

58. All actions, prosecutions or other proceedings against any person or psychiatric facility for anything done or omitted to be done in pursuance or intended pursuance of this Act or the regulations shall be commenced within six months after the act or omission complained of occurred and not afterwards. 1967, c. 51. s. 58.

Mental Hospitals Act, R.S.O. 1960, c. 236

10. (1) No action, prosecution or other proceeding shall be brought or be instituted against any officer, clerk, servant or employee of the Department, or the Public Trustee, or against any other person for an act done in pursuance or execution or intended execution of any duty or authority under this Act or the regulations, or in respect of any alleged neglect or default in the execution of any such duty or authority, without the consent of the Attorney General.

(2) All actions and prosecutions against any person for anything done or omitted to be done in pursuance of this Act shall be commenced within six months after the act or omission complained of has been committed, and not afterwards.

(3) No action lies against an institution or an officer, employee or servant thereof for a tort of a patient. 1950, c. 229, s. 10.

Mental Hospitals Act, R.S.O. 1970, c. 270

9. All actions and prosecutions against any person for anything done or omitted to be done in pursuance of this Act shall be commenced within six months after the act or omission complained of has been committed, and not afterwards. R.S.O. 1960, c. 236, s. 10(2).

Mental Hospitals Act, R.S.O. 1980, c. 263

9. All actions and prosecutions against any person for anything done or omitted to be done in pursuance of this Act shall be commenced within six months after the act or omission complained of has been committed, and not afterwards. R.S.O. 1970, c. 270, s. 9.

[204] In short, the appellants submit that given that the trial judge found that they treated the respondents pursuant to the MHA and the Mental Hospitals Act, he erred in law by failing to apply the six-month limitation periods contained in those statutes.

[205] They further submit, relying on the historic Acts, that the nature of the cause of action does not alter the applicability of the limitation period because the limitation period covers anything done in pursuance of the legislation. In support of that argument, the appellants rely on this court’s decision in Perez, at p. 232, citing Fenton v. North York Hydro Electric Commission (1996), 1996 1102 (ON CA), 29 O.R. (3d) 481, at p. 485, for the proposition that the words “in pursuance of” refer to “those acts done in direct execution of a statutory duty or acts which are necessarily incidental to the carrying out of a statutory duty.” According to the appellants, this definition covers the actions complained of by the respondents in the case at bar.

[206] The appellants assert that the trial judge erred in relying on Cascone for the proposition that conduct that is an abuse of power is not deserving of the special protection afforded by the short limitation period. Under their interpretation of Cascone, the physicians sued could rely on the relevant limitations defences if they acted in good faith. Given that the trial judge found that the Physicians acted in good faith, they submit that they are entitled to rely on the statutory defences.

(b) Appellants cannot rely on historic limitation periods

[207] We do not accept the interpretation of the special historic limitation periods in the MHA and the Mental Hospitals Act urged upon us by the appellants. In our view, that interpretation is contrary to the modern principle of statutory interpretation, which holds that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. The modern principle takes a holistic view of legislation and recognizes that statutory interpretation cannot be founded on the wording of the legislation alone but must have regard to legislative intent, textual meaning, and legal norms: Rooney v. ArcelorMittal S.A., 2016 ONCA 630, 133 O.R. (3d) 287, at paras. 10-14.

[208] The trial court in Cascone drew the line regarding the availability of these limitations defences at good faith. In other words, provided the defendant doctors acted in good faith, they were protected. However, there was no protection when they crossed the line by acting in bad faith. We agree with the conclusion of the trial judge in Cascone that the protections afforded by the limitations provisions are not absolute and do not apply in all circumstances. However, we disagree that the line should be drawn at good faith. In reaching this conclusion, we accept and rely on the analysis of Perell J. when he considered this issue on a motion for summary judgment in the case at bar:

In my opinion, the limitation period statutes designed to protect physicians from claims arising from providing treatment and professional services, which may protect experimental treatments that prove harmful, do not encompass an action based on breach of fiduciary duty where the act of professional practice or experimentation is torture. The cases that give a wide definition to the scope of malpractice actions, even the few cases that consider breach of fiduciary duty as instances of malpractice, were not dealing with what Dr. Barker proudly thought to distinguish from “offences as grievous as those involved in setting up the Third Reich.”

In the case at bar, I appreciate that the Crown and Drs. Barker and Maier may have been acting in good faith, and I am prepared to assume that to be the case because mala fides was not expressly pleaded, although the deemed-to-be-proved facts in the Statement of Claim may suggest otherwise, and I appreciate that apart from professional renown and advancement, there was no self-serving gratification for the Defendant physicians at the expense of the Plaintiffs but, in my opinion, that does not negate the circumstance that it is a breach of a physician’s ethical duty to physically and mentally torture his patients even if the physician’s decisions are based on what the medical profession at the time counts for treatment for the mentally ill.[^5]

[209] In Ontario, mental health care providers and institutions have benefitted from special protections under the MHA and the Mental Hospitals Act. These protections are a reasonable policy choice open to the legislature. They protect health care providers and institutions by imposing short limitation periods for actions undertaken in pursuance of the objectives of these Acts. However, these protections have no application in circumstances like the present case. They cannot be used to insulate health care providers from liability for egregious breaches of fiduciary duty and intentional torts where there was a certainty of inflicting grievous harm and no reasonable basis for a belief that any benefit would be achieved. It could not have been the intention of the legislature in enacting these limitations to protect the conduct complained of in the case at bar, which resulted in the respondents being subjected to torture, regardless of whether those actions were undertaken in good faith. Such actions are the antithesis of acts done in the direct execution of the statutory duty or necessarily incidental to carrying out that duty. They are the antithesis of acting in the patients’ best interests, and, as such, are contrary to the purposes of the Acts, which are to ensure that mental health patients receive the treatment they require. Accordingly, for these reasons, we dismiss this ground of appeal.

[210] Given our conclusion that the appellants cannot rely on the historic limitation periods, and therefore the claims are not statute barred, it is unnecessary to address the appellants’ submission that the trial judge erred in finding that the claims are not statute barred by virtue of s. 16(1)(h.2) of the Limitations Act, 2002.

(4) Palpable and overriding errors

(a) Palpable and overriding errors made in relation to four respondents

[211] The Physicians submit that the trial judge made palpable and overriding factual errors in his assessment of four respondents' claims. While we accept that the trial judge’s findings are to be assessed on a deferential standard, we accept those arguments and give effect to this ground of appeal.

(i) Stanley Kierstead

[212] The trial judge found that Stanley Kierstead, who was committed to Oak Ridge when he was 16-17 years old, suffered short-term pain from the fear of being placed into MAPP. There was no documentary evidence that Mr. Kierstead had ever been in any of the three STU programs. Moreover, the trial judge found that Mr. Kierstead had adopted the “narratives of other patients as his own” and thus characterized his account as unreliable. The trial judge concluded that Mr. Kierstead did not suffer long-term harm from his Oak Ridge experience, but found that Mr. Kierstead’s fear of being sent to MAPP caused a “certain amount of short-term pain.” The trial judge awarded $1,000 in general damages against Dr. Barker and Ontario.

[213] We agree with the Physicians who contend that the trial judge committed a palpable and overriding error in awarding damages to this respondent. Given his finding that Mr. Kierstead was never subjected to any of the STU programs, the trial judge ought to have dismissed the claim because there was no causal connection to the appellants’ conduct. In addition, there was no evidence in the record that Mr. Kierstead suffered psychic or physical harm from the mere existence of the impugned programs. Therefore, we order that the judgment in favour of Mr. Kierstead be set aside.

(ii) Denis LePage

[214] The trial judge also committed a palpable and overriding error in finding Dr. Barker liable for having caused Denis LePage moderate long-term harm and substantial short-term harm.

[215] Mr. LePage was first committed to Oak Ridge on a 30-day warrant in January 1966. As the trial judge noted, the clinical records do not indicate that Mr. LePage spent any time in the STU programs during this period. In September 1977, Mr. LePage was again committed to Oak Ridge for 60 days. Similarly, the trial judge found that Mr. LePage was not subjected to the STU programs during this hospitalization. After being found NGRI on a firearm charge, Mr. LePage was again committed to Oak Ridge on January 20, 1978, where he remained until 1982. During this third period, Mr. LePage was placed in MAPP on three occasions. The trial judge found that MAPP negatively affected Mr. LePage’s cognitive abilities as well as the trajectory of Mr. LePage’s life.

[216] In evaluating Dr. Barker’s conduct, the trial judge emphasized that Dr. Barker was “very much involved with [Mr. LePage’s] admission and his diagnoses, and his entry into the STU.” The trial judge also found that Dr. Barker was directly involved in Mr. LePage’s treatments and was aware of Mr. LePage’s susceptibility, given his schizophrenia, to the traumatic impositions of MAPP. Accordingly, the trial judge awarded Mr. LePage general damages of $200,000 against Dr. Barker and Ontario.

[217] Although Dr. Barker assessed and diagnosed Mr. LePage during the 60-day period in 1977, the evidentiary record is clear that Dr. Barker was not involved in any of the subsequent decisions between 1978 and 1982 to admit Mr. LePage to MAPP. Moreover, the trial judge could not have found Dr. Barker liable for the actions of other members of the treatment team, given the absence of a finding of vicarious liability. We therefore agree with the appellants that the trial judge committed a palpable and overriding error in holding Dr. Barker liable for Mr. LePage’s subjection to MAPP. Accordingly, we order that Mr. LePage’s judgment against Dr. Barker be set aside but do not interfere with his judgment against Ontario, given the trial judge’s findings regarding Dr. O’Reilly’s and Dr. Boyd’s direct involvement and oversight of Mr. LePage’s treatment.

(iii) Michael Pinet

[218] The trial judge found Dr. Barker, Dr. Maier, and Ontario liable for having caused Michael Pinet substantial long-term harm and moderate short-term harm.

[219] Mr. Pinet had two periods of hospitalization at Oak Ridge. His first admission lasted from 1971 to 1972. After his release in 1972, he went to the Northwest Territories where he was convicted of sexual assault. He was readmitted from 1977 to 1984 after being found NGRI for the quadruple homicide of his wife’s siblings.

[220] During his first stint at Oak Ridge, Mr. Pinet was placed in the DDT program and administered more than a dozen drug treatments by Dr. Barker. He also spent time naked with other patients in the Capsule. During his second stint, when he was under the care of Dr. Maier, Mr. Pinet was again put into the DDT program and spent time in MAPP on several occasions.

[221] The trial judge blamed Mr. Pinet’s criminality after his release in 1972 on the DDT treatment he endured during his first stint at Oak Ridge. Relying on the testimony of the respondents’ expert witness, Dr. Bradford, the trial judge held that when Mr. Pinet first entered Oak Ridge, he had only been convicted of minor, non-violent offences. According to the trial judge, when Mr. Pinet was discharged in 1972, he emerged as a rapist and mass murderer. The trial judge found that the DDT treatment caused this transformation, as the DDT treatment rendered Mr. Pinet catatonic in the short term and psychologically unable to control himself in the long term. The trial judge also found that the DDT treatment during the second period caused Mr. Pinet to display signs of serious depression. The trial judge awarded $350,000 in general damages, and a total of $300,000 in punitive damages against Dr. Barker, Dr. Maier, and Ontario.

[222] We agree with the appellants that the trial judge committed a palpable and overriding error in finding that the DDT treatment during the first period caused Mr. Pinet to commit violent crimes after his release. The evidence is clear that Mr. Pinet had engaged in dangerous, sexualized criminality before his first admission to Oak Ridge. Indeed, Mr. Pinet was first sent to Oak Ridge because he committed a violent assault on a nurse with the intent to rape her. The trial judge also failed to address Mr. Pinet’s credibility meaningfully, despite Mr. Pinet’s established history of lying under oath. Accordingly, we order that Mr. Pinet’s judgment be reduced to $50,000 in general damages against Dr. Barker, Dr. Maier, and Ontario, who are all jointly and severally liable. We order punitive damages reduced to a total of $30,000, with $10,000 awarded against Dr. Barker, $10,000 against Dr. Maier, and $10,000 against Ontario.

(iv) Douglas McCaul

[223] Finally, we conclude that the trial judge made palpable and overriding errors in finding Dr. Barker and Dr. Maier liable for having caused Douglas McCaul moderate long-term and short-term harm.

[224] Mr. McCaul spent two stints in Oak Ridge. He was first committed in early 1976 for 60 days, and then, after being found NGRI, spent four years at the facility, from 1976-1981. Before, during, and after his time at Oak Ridge, Mr. McCaul suffered sexual and general identity disorders, fetishism, alcohol dependence issues, anti-social personality, heart disease, and diabetes. During his second stint at Oak Ridge, Mr. McCaul was placed in mini-MAPP for a six-week session and received two Alcohol-Ritalin treatments in the DDT program. The two Alcohol-Ritalin treatments resulted in Mr. McCaul having uncontrolled convulsions.

[225] The trial judge found that Dr. Maier should not have authorized Mr. McCaul’s Alcohol-Ritalin treatments, given the latter’s background of alcohol abuse. According to the trial judge, Dr. Maier’s initial decision to subject Mr. McCaul to DDT treatment was “rather outrageous.” Further, Dr. Maier’s decision to order a second bout of treatment after the first resulted in Mr. McCaul’s having uncontrolled convulsions was, according to the trial judge, “beyond all comprehension.” The trial judge also found that Dr. Barker was aware of these programs’ effect on Mr. McCaul but did nothing to improve Mr. McCaul’s situation. Accordingly, he awarded $100,000 in general damages jointly and severally against Dr. Barker, Dr. Maier, and Ontario, and $50,000 in punitive damages against Dr. Maier, and $50,000 in punitive damages against Ontario.

[226] The trial judge committed several palpable and overriding errors regarding Mr. McCaul’s case.

[227] Concerning Dr. Maier, it is evident on the evidence that it was another physician, not Dr. Maier, who authorized Mr. McCaul’s second Alcohol-Ritalin treatment in March 1978. Dr. Maier should not have been held liable for that second treatment, nor should punitive damages have been awarded against him on that basis. Accordingly, we reduce the judgment against Dr. Maier in favour of Mr. McCaul to $30,000 in general damages and $30,000 in punitive damages.

[228] With respect to Dr. Barker, there was no evidence that Dr. Barker was involved in any of Mr. McCaul’s experiences in the STU programs. Dr. Barker had already stepped down from his role as Clinical Director and had no oversight role when Mr. McCaul was in the STU programs. The trial judge should have dismissed Mr. McCaul’s claim against Dr. Barker, and we so order.

[229] Finally, we do not interfere with the $100,000 judgment in general damages against Ontario.

[230] Accordingly, we order that (1) Ontario and Dr. Maier are jointly and severally liable for general damages of $30,000, (2) Dr. Maier is solely liable for $30,000 in punitive damages, (3) Ontario is solely liable for an additional $70,000 in general damages, and (4) Ontario is solely liable for $50,000 in punitive damages.

(b) No other palpable and overriding errors

[231] In addition to matters addressed elsewhere in these reasons, Ontario submits that the trial judge made other palpable and overriding errors, including a number of factual errors. We reject Ontario’s submissions given the highly deferential standard of review that applies. In South Yukon Forest Corp. v. Canada, 2012 FCA 165, 431 N.R. 286, at para. 46, leave to appeal refused, [2012] S.C.C.A. No. 349, Stratas J.A. colourfully described the palpable and overriding standard:

“Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.

In our view, none of the other alleged errors meet this standard.

(5) Damages

[232] All of the respondents made claims for general damages and punitive damages. Some of them also made claims for loss of income as a result of their involvement in the Capsule, MAPP, and DDT.

[233] In assessing damages, the trial judge was careful to exclude “losses caused by [the respondents’] institutionalization at Oak Ridge in the first place or their experiences outside of the three impugned programs.” He was also alive to the fact that this was not a class action and that “the damages assessment must conform with the specific, individual holdings set out in [the trial judgment].”

[234] In the end, the trial judge made damages awards totalling $9,585,500, with individual awards ranging from $1,000 to $2.7 million, depending on the particular facts. While all of the respondents were awarded general damages, only half of them were awarded punitive damages. Five respondents also received awards for past lost income, but the trial judge declined to award pre-judgment interest on those awards. Other respondents were precluded from recovering damages for past lost income by virtue of the ex turpi causa doctrine. (See Appendix “A”, which sets out the damages awarded to each respondent.)

[235] All parties appeal various aspects of the damages awards.

[236] Ontario and the Physicians challenge the general and punitive damages awards. In doing so, they raise a host of issues, including the following key issues:

• Did the trial judge err in making awards that exceed the cap established in Andrews? In the alternative, are the awards grossly disproportionate?

• Did the trial judge err in awarding punitive damages to 14 of the respondents or, in the alternative, did he award amounts that were excessive?

[237] By way of cross-appeal, the respondents challenge the quantum of some of the awards and the failure to award some of the respondents any punitive damages. They also challenge the failure to award certain respondents damages for past loss of income and the failure to award pre-judgment interest on the past loss of income awards that were made. The issues raised by the respondents include:

• Did the trial judge fail to give effect to his findings about the suffering endured by those respondents who each received general damages awards between $1,000 and $3,000?

• Did the trial judge err in relying on inappropriate comparators in quantifying the general damages awarded to those respondents?

• Did the trial judge err in failing to apply the principles governing aggravated damages in fashioning the compensatory awards for those respondents?

• Did the trial judge err in not awarding punitive damages to all of the respondents?

• Did the trial judge err in failing to award certain respondents damages for past loss of income based on the ex turpi causa doctrine?

• Did the trial judge err in failing to award pre-judgment interest on the past loss of income awards?

[238] As we will explain, with the exception of the trial judge’s decision refusing to award pre-judgment interest on the past loss of income awards, we uphold the trial judge’s conclusions on damages. The trial judge provided extensive reasons (156 pages) in relation to damages, drawing heavily on his liability findings. Of course, the length of a decision is not a measure of its wisdom; nonetheless, in this case, the trial judge’s damages reasons are thorough, thoughtful, and supported by the applicable jurisprudence. As we will explain, he made no reversible errors in assessing damages.

(a) Standard of review

[239] In concluding that the damages awards should be upheld, we are guided by Rougemount Capital Inc. v. Computer Associates International Inc., 2016 ONCA 847, 410 D.L.R. (4th) 509, in which this court prescribed the following approach to the review of damages awards, at paras. 41-42:

Damages awards attract considerable deference. The limited scope for appellate interference was noted in Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 80:

It is common ground that the Court of Appeal was not entitled to substitute its own view of a proper award unless it could be shown that the trial judge had made an error of principle of law, or misapprehended the evidence, or it could be shown there was no evidence on which the trial judge could have reached his or her conclusion, or the trial judge failed to consider relevant factors in the assessment of damages, or considered irrelevant factors, or otherwise, in the result, made “a palpably incorrect” or “wholly erroneous” assessment of the damages. Where one or more of these conditions are met, however, the appellate court is obliged to interfere….

… [Q]uantifying damages is not an exact science and trial judges are obliged to do the best they can on the evidence, short of failing to analyze the evidence at all or simply guessing.

(See also SFC Litigation Trust v. Chan, 2019 ONCA 525, 147 O.R. (3d) 145, at para. 112, leave to appeal refused, [2019] S.C.C.A. No. 314.)

[240] As discussed below, we recognize that an appellate court is entitled to intervene with an award of punitive damages if the damages award exceeds the outer boundaries of a rational and measured response to the facts of the case. We decline to find that the punitive damages awards fall outside those boundaries.

(b) General and aggravated damages

(i) Awards consistent with findings

[241] Seven of the respondents were awarded general damages of $1,000 to $3,000 each: Donald Everingham ($3,000), John Finlayson ($2,000), Terry Ghetti ($1,000), Russ Johnson ($1,000), Stanley Kierstead ($1,000), Edwin Sevels ($2,500), and Samuel Shepherd ($2,000). As noted above, we have set aside the judgment in favour of Mr. Kierstead, and so only the damages awarded to the other six respondents are at issue.

[242] The respondents submit that the trial judge erred in failing to give effect to his findings about the harm suffered by these respondents in assessing their damages.

[243] We reject this ground of appeal.

[244] The trial judge concluded that, relatively speaking, each of the six respondents suffered mild short-term harm.[^6] He made specific findings about the harm suffered by each respondent. For example, with respect to Mr. Everingham, he found that “the STU experience had relatively little impact on [him]” since “[h]e came there a very dangerous and violent man with an antisocial personality disorder and a diagnosis as a sexual predator, and he left in more or less the same state.” Similarly, he found that Mr. Ghetti, who came to Oak Ridge with a violent criminal history, experienced “indignity and frustration” in the short-term, but otherwise did not deteriorate as a result of the STU programs. With respect to Mr. Johnson, one of Canada’s most prolific serial killers and sexual predators, the trial judge found that the two DDT sessions and one MAPP session he underwent “did cause him some emotional pain … [b]ut the level of harm he endured had no lasting impact on him and did not change the trajectory of his life or impact on the course of his mental illness and recovery.” Rather, Mr. Johnson experienced short-term “discomfort that perhaps rose above the nominal damages threshold, but not by much.” He made similar findings with respect to the other three respondents. It cannot be said that the trial judge ignored these findings of facts in assessing compensatory damages for the six respondents.

(ii) Use of appropriate comparators

[245] The respondents submit that the trial judge erred in the comparators he chose in assessing general damages for the six respondents who were each awarded $1,000 to $3,000 in damages.

[246] We also reject this ground of appeal.

[247] At the outset of his reasons, the trial judge charted the following approach, which recognized that the assessment of damages is a comparative exercise:

[15] Accordingly, it is the reported cases dealing with comparable situations, together with the expert evidence, that set the parameters of the damages awards to be applied to the individual Plaintiffs in accordance with their personal histories. I must, of course, endeavor to make each Plaintiff whole: Athey v. Leonati, 1996 183 (SCC), [1996] 3 SCR 458, at para 32. But I must also strive to be in sync with awards in other comparable situations – keeping in mind that the present case is rather unique in its facts. The Court of Appeal has made it clear that in arriving at a quantum of damages, trial judges are to avoid the pitfall of approving “large differences in awards to individuals who do not differ greatly”: Mulroy v. Aqua Scene (1982), 36 OR (2d) 653, at para 15 (Ont CA).

[16] It is obvious that in a case like this any quantification of damages, especially for non-pecuniary losses, will entail an element of arbitrariness since recompense for lost years and psychological suffering is not mathematically calculable. At the same time, the quantification must not be out of line with existing cases. It certainly must not be so high or low as to be considered disproportionate: Fernandes v. Penncorp Life Insurance Company (2014), 2014 ONCA 615, 122 OR (3d) 192, at para 97. Plaintiffs’ counsel argue that this case is factually and historically unique, which is accurate; but that does not mean that quantification of damages is without precedent. Courts do have experience quantifying physical and emotional/psychiatric harm, and it is from that experience that the analysis will draw. As the Supreme Court of Canada has put it, “[t]he award must be fair and reasonable, fairness being gauged by earlier decisions”: Andrews v. Grand & Toy, 1978 1 (SCC), [1978] 2 SCR 229, 261.

[248] We agree with this approach.

[249] In this case, the challenge was to find helpful comparators. This was a difficult endeavour given the unique circumstances. In his search for “horizontal comparisons” with the type of suffering experienced by the respondents, the trial judge considered the comparisons proposed by the parties.

[250] As noted, the six respondents were all found to have suffered mild short-term harm. In assessing damages for the mild short-term harm they suffered, the trial judge used two cases as comparators: McMaster v. The Queen, 2009 FC 937, 352 F.T.R. 255; B.(V.) v. Carins (2003), 2003 2429 (ON SC), 65 O.R. (3d) 343 (S.C.) (“Boer”). McMaster, a misfeasance in public office case, involved a plaintiff who sustained a knee injury in a custodial setting after being denied proper shoes. He was awarded $6,000 (approximately $7,000 adjusted for inflation) in general damages. Boer involved what the trial judge described as “a traumatic event imposed on a truly vulnerable person”. The plaintiff was forced by the elders of the Jehovah’s Witnesses church to confront her father, who had sexually abused her, which caused her serious distress and a deterioration in her pre-existing psychological condition. She was awarded $5,000[^7] in general damages.

[251] We are not satisfied that the trial judge made a reversible error in using these cases as comparators. The trial judge explained how and the extent to which McMaster was comparable to the harm suffered by Mr. Shepherd and Mr. Sevels. He also explained how and the extent to which Boer was comparable to the harm suffered by Mr. Everingham, Mr. Ghetti, Mr. Johnson, and Mr. Finlayson. In our view, it was open to the trial judge to use these cases as comparators.

[252] The respondents further submit that instead of relying on McMaster and Boer, the trial judge ought to have relied on the more analogous cases of Demers v. Everson, 2013 ONSC 6134, 4 C.C.L.T. (4th) 205, Weafer (Litigation Guardian of) v. Vancouver Coastal Health Authority, 2007 BCSC 481, and Nagy v. Canada, 2006 ABCA 227, 61 Alta. L.R. (4th) 85. Those cases, say the respondents, suggest a minimum range of $57,000 to $198,000 in damages.

[253] The trial judge referred to each of these cases. He used them in assessing damages for the respondents he found had suffered either more serious harm or longer-term harm. He also explained why Nagy was not an appropriate comparator for Mr. Shepherd. Thus, he was alive to the particular facts of Everson, Weafer, and Nagy. In our view, he did not err in not relying on them in assessing damages for the six respondents he found to have suffered mild, short-term harm.

(iii) Appropriate application of principles re: aggravated damages

[254] Counsel for the respondents submit that the trial judge erred in failing to apply the principles governing aggravated damages in fashioning the awards for the six aforementioned respondents. In particular, the trial judge is said to have lost sight of the focus of the aggravated damages analysis – the humiliating, oppressive and malicious aspects of Dr. Barker’s and Dr. Maier’s conduct that aggravated the respondents’ suffering – focusing instead on the Physicians’ motives.

[255] We also reject this ground of appeal.

[256] In this case, the trial judge noted that the respondents “tended [not] to seek aggravated damages as a distinct claim or category of loss” but rather sought “general damages at the high end of the scale for each individual [respondent].”

[257] We are not persuaded that the trial judge erred in failing to assess compensatory damages with regard to the aggravating aspects of the Physicians’ conduct. The trial judge properly identified the principles to be applied in determining whether aggravated damages were warranted. He recognized that aggravated damages are compensatory in nature and that they are awarded “when the reprehensible or outrageous nature of the defendant’s conduct causes a loss of dignity, humiliation, additional psychological injury, or harm to the plaintiff's feelings”: Plester v. Wawanesa Mutual Insurance Co. (2006), 2006 17918 (ON CA), 213 O.A.C. 241 (C.A.), at para. 62, leave to appeal refused, [2006] S.C.C.A. No. 315; McIntyre v. Grigg (2006), 2006 37326 (ON CA), 83 O.R. (3d) 161, at para. 50. The trial judge also rightly noted that aggravated damages were to be assessed by matching a specific doctor’s conduct with the harms suffered by a specific respondent. The trial judge’s findings, including his findings about the Physicians’ conduct and their motivations, are entitled to deference. We dismiss this ground of appeal.

(iv) Andrews cap not applicable

[258] The trial judge concluded that the Andrews cap did not apply and made several awards of general damages above the cap. In particular, the Physicians point to the damages awarded to four of the respondents: Danny Joanisse ($2,100,000), Allen McMann ($1,000,000), Michael Pinet ($350,000), and Shauna Taylor ($500,000). However, as discussed above, Mr. Pinet’s award of general damages has now been reduced to $50,000.

[259] The appellants submit that the trial judge erred in awarding damages above the cap on several grounds, including that he erred in relying on distinguishable case law and in finding that the policy reasons underlying the Andrews cap do not apply in this case. In the appellants’ submission, the claims are in the nature of personal injury and thus should have been subject to the Andrews cap. Ontario further submits that the social cost of extreme damages awards impacts directly on the taxpayers of Ontario, payable from the Consolidated Revenue Fund: CLPA, s. 28. In the alternative, the appellants submit that, even if the cap does not apply, the amounts awarded to the respondents above the cap were grossly disproportionate.

[260] We do not accept these submissions.

[261] In Andrews, a personal injury case arising from a motor vehicle accident, the Supreme Court limited the award of general damages to $100,000. Ontario notes that, adjusted for inflation, this amount is now over $350,000.

[262] The Supreme Court established the Andrews cap out of a concern that the cost of excessive damages awards would be passed onto, and negatively impact, broader society and a concern about the inconsistency of awards. Dickson J. explained, at pp. 261-63:

…[T]his is the area where the social burden of large awards deserves considerable weight. The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. This area is open to widely extravagant claims. It is in this area that awards in the United States have soared to dramatically high levels in recent years. Statistically, it is the area where the danger of excessive burden of expense is greatest.

The amounts of such awards should not vary greatly from one part of the country to another.

[263] In Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, at para. 168, Cory J. reiterated the policy concerns underlying the Andrews cap in explaining why it did not apply in the defamation context:

In my view, there should not be a cap placed on damages for defamation. First, the injury suffered by a plaintiff as a result of injurious false statements is entirely different from the non-pecuniary damages suffered by a plaintiff in a personal injury case. In the latter case, the plaintiff is compensated for every aspect of the injury suffered: past loss of income and estimated future loss of income, past medical care and estimated cost of future medical care, as well as non-pecuniary damages. Second, at the time the cap was placed on non-pecuniary damages, their assessment had become a very real problem for the courts and for society as a whole. The damages awarded were varying tremendously not only between the provinces but also between different districts of a province. Perhaps as a result of motor vehicle accidents, the problem arose in the courts every day of every week. The size and disparity of assessments was affecting insurance rates and, thus, the cost of operating motor vehicles and, indeed, businesses of all kinds throughout the land. In those circumstances, for that one aspect of recovery, it was appropriate to set a cap. [Emphasis in original.]

[264] The trial judge, who was alive to these policy concerns, explained why he found the Andrews cap inapplicable in this case:

[54] The policy considerations underlying the damages cap do not apply here. The sui generis nature of the STU programs, which ended in the early 1980s and have never been repeated, do not compare with the ubiquitous nature of motor vehicle accidents, however catastrophic the results may be. Plaintiffs’ counsel point out that since damage awards in cases of institutional abuse or physicians’ breach of fiduciary duty are infrequent in Canada, a cap is unnecessary to control disparity of assessments or a burden on insurance premiums for psychiatric institutions and physicians. The social cost, as the Supreme Court put it, of a damages award in this unique case is not the same as one in which the insurance industry must continuously spread losses throughout a society in which the vast majority of drivers are insured.

We agree with this reasoning.

[265] The trial judge provided two further reasons for not applying the cap.

[266] First, given the timing of the respondents’ claims, and the nature of the harm they suffered (psychiatric vs. physical injuries), the claim for general damages did not overlap with any cost of care awards. Consequently, there was no concern about double recovery.

[267] Secondly, and more broadly, the trial judge noted that appellate courts have not applied the Andrews cap in cases involving intentional wrongdoing or breach of fiduciary duty. For instance, he referred to a decision of the British Columbia Court of Appeal: S.Y. v. F.G.C. (1996), 1996 6597 (BC CA), 26 B.C.L.R. (3d) 155 (C.A.). In S.Y., the court held that there was no policy reason that justified the imposition of the cap in the type of case before them. In that case, the defendant, who sexually assaulted his stepdaughter, was found liable for intentional torts, and the Court of Appeal held that a breach of fiduciary claim could also have been left with the jury. The court observed that there was no evidence that in such cases the size of general damages awards would have any impact on the public purse. That is the situation here – Ontario adduced no evidence to support the proposition that the award of general damages above the Andrews cap would have a tangible impact on public funds.

[268] The trial judge also looked to the Supreme Court’s approval of other departures from the cap, outside of the negligence context: see Hill (defamation); and Cinar Corporation v. Robinson, 2013 SCC 73, [2013] 3 S.C.R. 1168 (copyright infringement). These cases, which illustrate the judicial reluctance to apply the cap outside of negligence cases involving personal injuries, also support the trial judge’s conclusion: Jamie Cassels and Elizabeth Adjin-Tettey, Remedies: The Law of Damages, 3rd. ed. (Toronto: Irwin Law, 2014), at pp. 200-203.

[269] In conclusion, we agree with the trial judge’s conclusion that the theoretical underpinnings that supported the Andrews cap did not apply in the unique context of this case.

[270] We also reject the submission that the amounts awarded to the respondents were grossly disproportionate. The trial judge was cautious in his award of general damages exceeding the cap, awarding such damages to only four of the twenty-eight respondents. While we have reduced the amount awarded to Mr. Pinet, the other three awards reflected the respondents’ individual circumstances. We dismiss this ground of appeal.

(c) Punitive damages

(i) Background

[271] In addition to general damages, the respondents sought “a large punitive damages award for each [respondent] as a way of expressing the legal system’s disapproval of the [appellants’] conduct and of deterring similar conduct in the future”.

[272] The trial judge awarded punitive damages to 14 respondents: Jean-Paul Belec ($100,000); Eric Bethune ($150,000); Joseph Bonner ($100,000); William Brennan ($150,000); Roy Dale ($100,000); Terry Ghetti ($25,000); Eldon Hardy ($100,000); Danny Joanisse ($600,000); Christian Magee ($100,000); Douglas McCaul ($100,000, now reduced to $80,000); Brian McInness ($150,000); Allen McMann ($500,000); Michael Pinet ($300,000, now reduced to $30,000); and Shauna Taylor ($100,000). The trial judge declined to order punitive damages in respect of the 14 other respondents. In total, the trial judge awarded punitive damages against Dr. Barker in the amount of $475,000 and against Dr. Maier in the amount of $962,500.

[273] All the parties appeal. The appellants submit that the trial judge erred in awarding any punitive damages, and in the alternative, erred in awarding excessive amounts. On cross-appeal, the respondents submit that the trial judge erred in not awarding all of the respondents punitive damages, and they challenge the quantum of punitive damages.

[274] As we will explain, we reject all of these grounds of appeal. In doing so, we are cognizant that “an appellate court is entitled to intervene if the [punitive damages] award exceeds the outer boundaries of a rational and measured response to the facts of the case”: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 76. The rationality test drives the question of whether punitive damages should have been awarded, as well as to the issue of quantum: Whiten, at paras. 100-101. As Binnie J. noted in Whiten, at para. 108, “[t]he focus is on whether the court’s sense of reason is offended rather than on whether its conscience is shocked”. With that focus in mind, we turn to the trial judge’s reasons.

(ii) No interference with punitive damages awards

[275] In deciding to award some but not all of the respondents punitive damages, the trial judge accepted the expert testimony of one of the respondents’ experts, Dr. Bradford, who described the design and implementation of the STU programs as carrying mixed messages.

[276] On the one hand, in their academic writings, the Physicians acknowledged, in the words of the trial judge, “the fundamentally invasive and cruel quality of the programs”. And, Dr. Maier’s writings at the time revealed the programs to be contrary to prevailing medical ethics.

[277] On the other hand, Dr. Barker described the treatment as necessary to produce remission in the mental illnesses suffered by the patients at Oak Ridge. Further, the Physicians did not hide what they were doing at Oak Ridge. For instance, Dr. Maier sought to publish articles about the STU, which the trial judge said “displays transparency and, perhaps, a certain benevolence in his own view of what he was doing with the programs”.

[278] Critical to the trial judge’s analysis on punitive damages were his findings on the tort of intentional infliction of emotional distress. As noted above, at para. 133, the trial judge found that these claims in tort failed because the respondents did not prove an intention to cause harm.

[279] Ultimately, the trial judge found that while the programs were harmful and wrongful, punitive damages were not warranted for all the respondents. As he explained, there had to be evidence of “something more”.

[280] The trial judge drew a line with respect to the younger and most vulnerable respondents in the STU programs, finding that there was “something more” that was lacking with the older respondents. The pain and suffering visited on these young persons would “shock the conscience” of the community and ought to have shocked the appellants as well. The trial judge explained the particular harm suffered by them as follows:

[77] … For the youngest and most vulnerable of the Plaintiffs, it was not difficult to perceive that the STU programs were effectively depriving them of the most irreplaceable thing of all – their youth and the chance of achieving mental health beyond the psychological problems with which they entered Oak Ridge. In those particular instances, aggravated damages reflecting the extreme hurt of the individual Plaintiffs would seem to be warranted.

[281] He also found “something more” for a number of other respondents, including those who received alcohol treatments despite substance abuse problems.

[282] We decline to interfere with the trial judge’s decision to award punitive damages to those respondents. While we recognize that there is greater scope for intervention when considering an award of punitive damages (see Whiten, at para. 108), we see no basis to interfere with the awards in this case (other than, as indicated above, for Mr. McCaul and Mr. Pinet).

[283] Punitive damages are meant to be just that – a means of punishing a wrongdoer. In Hill, Cory J. explained, at para. 196, that punitive damages are “the means by which the jury or judge expresses its outrage at the egregious conduct”. (See also Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362, at para. 62.) Punitive damages are animated by the objectives of “retribution, deterrence and denunciation”: Whiten, at paras. 43, 68.

[284] In Hill, at para. 196, Cory J. held that punitive damages are awarded in exceptional cases for “malicious, oppressive and high-handed” misconduct that “offends the court’s sense of decency”. In other words, as Binnie J. said at para. 36 of Whiten, “[t]he test thus limits the award to misconduct that represents a marked departure from ordinary standards of decent behaviour.” It also embraces conduct that merits condemnation: Cassels and Adjin-Tettey, at p. 330.

[285] The trial judge characterized the circumstances of this case as sui generis. We agree. It is inconceivable that programs resembling the STU would ever be established today. Thus, the need for deterrence may well be attenuated in this case. But retribution and denunciation remain very much in play.

[286] The trial judge made specific findings to support his punitive damages awards to the 14 respondents. For instance, he awarded Mr. Belec $100,000 in punitive damages, on the basis of that he was administered an “alcohol treatment”, which the trial judge described as “patently unadvisable” and “reckless in the extreme” given that Mr. Belec had an alcohol problem prior to Oak Ridge. Mr. Bethune was awarded $150,000 in punitive damages based on Dr. Barker’s “callous and high-handed treatment” of the depressed and suicidal teenager. Dr. Barker put him through a “drug-addled ordeal that he could not handle, with lasting effects” and went out of his way to break down the mental defences of a vulnerable 19-year-old. Mr. McMann was awarded $500,000 in punitive damages in light of Dr. Maier’s “reprehensible behaviour”. The trial judge found that, as a 16-year-old boy who misbehaved in school, Mr. McMann was treated on par with Canada’s most prolific serial killers and sexual predators. In addition, the doctors attempted to conceal the nature and extent of the punishment being visited on Mr. McMann.

[287] The trial judge’s findings in relation to the respondents who were awarded punitive damages (other than, as explained above, for Mr. Pinet and Mr. McCaul) are entitled to deference. Awarding punitive damages to the 14 respondents, including Mr. Pinet and Mr. McCaul, was a rational and measured response to the trial judge’s findings. We dismiss this ground of appeal.

(iii) No interference with refusal to award punitive damages to other respondents

[288] Turning to the cross-appeal, the respondents who did not receive punitive damages submit that the trial judge erred in employing the “something more” threshold discussed above. In their submission, being in the STU programs was a sufficient basis to entitle each of the respondents to punitive damages.

[289] The trial judge explained why punitive damages were not warranted for those respondents:

[74] In Barker Trial I, at para 1212, I came to the conclusion that, “The Doctors created and ran a bad set of programs, but with intentions that were not quite as bad as the programs.” The evidence also made it clear that the programs had the full approval of not only Dr. Boyd and the Penetanguishene administration, but the government of Ontario as both regulator and public body ultimately responsible for the institution. There was no coverup of the STU programs, and I found no ulterior motives on the part of the Doctors – no personal profit or professional aggrandizement came of them. Moreover, there is no indication that the Doctors persisted in carrying on the programs once the government indicated that they were to be shut down. To the contrary, the Ombudsman's office, in a series of reports, gave what was essentially a seal of approval for the programs during their active lifetime.

[78] … [A] public program authorized by government, described in detail for the medical community by the Defendants in scholarly journals, exposed to the media by the Doctors and the Oak Ridge administration, and conceived – wrongly but sincerely – to be for the ultimate medical benefit of the patients – is not what aggravated or punitive damages are aimed at. While the disregard of the individual patient's pain may be beyond the pale for the most youthful of the Plaintiffs, the albeit misguided good faith of the Defendants toward the adult Plaintiffs makes aggravated and punitive damages inapplicable.

[290] The trial judge also noted that a significant amount of the pain and suffering experienced by a given respondent came from sources independent of the wrongdoing.

[291] In our view, the trial judge’s approach was rational. He explained why he drew the line where he did. It was open to him, based on his findings, to conclude that Dr. Maier’s and Dr. Barker’s conduct in relation to each of the 14 respondents did not cross the threshold for awarding punitive damages. Contrary to the respondents’ submission, the trial judge did not treat malice or bad faith as preconditions for a punitive damages award, as evidenced by the fact that he awarded punitive damages to some of the respondents despite his overall conclusion that the STU programs were implemented without malice and with the goal of providing therapy.

(iv) No interference with quantum

[292] Finally, both the appellants and respondents challenge the quantum of punitive damages. We reject the submissions on both sides, other than as explained above for Mr. McCaul and Mr. Pinet. The trial judge followed the direction of the Supreme Court of Canada in Whiten, at para. 113, in fixing the quantum of punitive damages. He calibrated the moral blameworthiness of Dr. Barker and Dr. Maier in assessing the amount for each respondent, with the amounts ranging from $25,000 to $600,000 depending on the particular facts.

[293] Counsel for the respondents submit that the awards that were made against Ontario were “laughable”, and that they are insufficient to deter a government agency. We do not agree. As noted above, what happened in this case is unlikely to be replicated in the future. The amounts awarded were sufficient punishment in the circumstances of the individual claimants.

[294] Nor do we accept the appellants’ submission that the awards made were disproportionately high. The trial judge approached all aspects of his damages awards, including punitive damages, on an individual basis, not in aggregation. Although the total amounts awarded against Dr. Barker and Dr. Maier are considerable, we are not persuaded that any individual amount awarded for punitive damages was unwarranted, except as already explained in relation to Mr. McCaul and Mr. Pinet.

(d) Ex turpi causa and loss of income claims

[295] The respondents submit that the trial judge erred in applying the ex turpi causa doctrine to preclude five respondents from recovering damages for income loss for periods during which they were institutionalized pursuant to an NGRI verdict and under the jurisdiction of the Ontario Review Board (“ORB”). As explained below, we reject this ground of appeal.

(i) Trial judge’s reasons

[296] The trial judge reasoned that, although he found that the STU programs may have been a catalyst to violence for some of the respondents, paying compensation to the perpetrator of violence for that very act of violence is antithetical to the law. He found that the doctrine of ex turpi causa prevented the recovery of compensation for the time spent incarcerated or institutionalized due to recidivist crimes. The trial judge cited British Columbia v. Zastowny, 2008 SCC 4, [2008] 1 S.C.R. 27, at para. 22, for the following explanation of the principle:

When a person receives a criminal sanction, he or she is subject to a criminal penalty as well as the civil consequences that are the natural result of the criminal sanction. The consequences of imprisonment include wage loss…. In my view, therefore, the ex turpi doctrine bars [the plaintiff] from recovering damages for time spent in prison because such an award would introduce an inconsistency in the fabric of law.

[297] The trial judge accepted the argument advanced by counsel for the Physicians that the Supreme Court’s reasoning in Zastowny applies equally to prohibit damages being awarded to a plaintiff for time spent involuntarily institutionalized under an NGRI verdict or a determination that the plaintiff is not fit to stand trial. He rejected the submission of counsel for the respondents that the ex turpi causa principle only prevents compensation from being paid for time lost while serving a prison sentence pursuant to a criminal conviction and does not apply to time spent institutionalized in a psychiatric hospital without having been convicted of an offence.

[298] Further, the trial judge found that compensating the five respondents for time spent under the jurisdiction of the ORB is inconsistent with the ORB’s statutory authority to keep that person institutionalized at its discretion. In reaching that conclusion, he drew an analogy to the Supreme Court’s finding in Zastowny that a court hearing a negligence action should not interfere with the jurisdiction of a Parole Board. The trial judge reasoned that the ORB has exclusive jurisdiction to make release decisions and that those decisions should not be second-guessed by him, particularly since the respondents have not challenged the orders that institutionalized them and subjected them to the ORB’s jurisdiction.

(ii) Parties’ submissions

[299] On their cross-appeal, the respondents submit that the ex turpi causa doctrine does not apply absent guilt or moral responsibility for wrongful conduct. They argue that those found NGRI were not legally or morally responsible for their wrongful conduct, and detention under the ORB’s jurisdiction was not a “penalty” or “punishment.” Therefore, they submit that the doctrine should not apply to bar the respondents found NGRI – namely, Mr. Joanisse, Mr. LePage, Mr. McCaul, Mr. Pinet, and Ms. Taylor – from recovering damages for lost income during periods of time when they were institutionalized as a result of an NGRI verdict

[300] In support of their position, the respondents rely on Dhingra v. Dhingra Estate, 2012 ONCA 261, 109 O.R. (3d) 641. In that case, this court held that the public policy rule that a person who kills another should not be permitted to profit from the crime does not apply where that person has been found not criminally responsible for the killing on account of mental disorder.

(iii) Ex turpi causa doctrine applicable

[301] The following summary of the doctrine of ex turpi causa from para. 20 of Zastowny serves as a good starting point to understand the doctrine:

The question is, “under what circumstances should the immoral or criminal conduct of a plaintiff bar the plaintiff from recovering damages to which he or she would otherwise be entitled” (p. 169). The following principles and approach are established in Hall v. Hebert and are applicable in the present case.

1. Application of the ex turpi doctrine in the tort context invalidates otherwise valid and enforceable actions in tort (p. 169).

2. Therefore, its application must be based on a firm doctrinal foundation and be made subject to clear limits and should occur “in very limited circumstances” (p. 169).

3. The only justification for its application is the preservation of the integrity of the legal system. This concern is only in issue where a damage award in a civil suit would allow a person to profit from illegal or wrongful conduct or would permit evasion or rebate of a penalty prescribed by the criminal law (p. 169).

It would, in short, introduce an inconsistency in the law. It is particularly important in this context that we bear in mind that the law must aspire to be a unified institution, the parts of which — contract, tort, the criminal law — must be in essential harmony. For the courts to punish conduct with the one hand while rewarding it with the other, would be to “create an intolerable fissure in the law's conceptually seamless web”: Weinrib, supra, at p. 42. We thus see that the concern, put at its most fundamental, is with the integrity of the legal system. [p. 176]

4. The ex turpi doctrine generally does not preclude an award of damages in tort because such awards tend to compensate the plaintiff rather than amount to “profit”:

Such damages accomplish nothing more than to put the plaintiff in the position he or she would have been in had the tort not occurred. . . . [A plaintiff should get] only the value of, or a substitute for, the injuries he or she has suffered by the fault of another. He or she gets nothing for or by reason of the fact he or she was engaged in illegal conduct. [pp. 176-77]

5. The ex turpi doctrine is a defence in a tort action. The plaintiff's illegal conduct does not give rise to a judicial discretion to negate or refuse to consider the duty of care which goes to the relationship between a plaintiff and a defendant. It is independent of that relationship. The defendant may have caused harm by acting wrongly or negligently, but the “responsibility for this wrong is suspended only because concern for the integrity of the legal system trumps the concern that the defendant be responsible” (pp. 181-82).

6. Treating the ex turpi doctrine as a defence places the onus on the defendant to prove the illegal or immoral conduct that precludes the plaintiff's action. And as a defence, it allows for segregation between claims for personal injury and claims that would constitute profit from illegal or immoral conduct or the evasion of or a rebate of a penalty provided by the criminal law. [Emphasis added.]

[302] At para. 33, the Supreme Court also warned against “second guessing” the Parole Board through the application of the ex turpi causa doctrine.

[303] We take away three important points from Zastowny.

[304] First, it is clear from the foregoing that the doctrine is not restricted to cases of criminal conduct but applies as well to “wrongful conduct”: Zastowny, at para. 20. The appellants argue that the conduct leading to the respondents’ institutionalization was wrongful. They note that the respondents committed the actus reus of the offences, even if they were not found to have the requisite mens rea. On this basis, we accept that there is no principled reason why the doctrine should not apply.

[305] Second, the application of the ex turpi causa doctrine is justified to preserve the integrity of the legal system. Allowing the income loss claims for extra time spent in a custodial institution would be inconsistent with the ORB’s exclusive jurisdiction over the respondents and would run the risk of creating an inconsistency in the law. The fact that ORB detention is non-punitive is irrelevant.

[306] Third, the Zastowny reasoning about not second-guessing Parole Board decisions applies equally, in our view, to ORB decisions.

[307] We make two additional points. While Zastowny dealt with the application of the ex turpi causa doctrine in the tort context, we see no reason why the doctrine should not also apply in the fiduciary duty context. Courts should not approach the doctrine in a mechanistic way, but should instead focus squarely on the rationale underlying the doctrine – that is, whether allowing the plaintiff’s claim would undermine the integrity of the justice system. We note that Canadian courts have applied the doctrine outside of the tort context: see, e.g., Randhawa v. 420413 B.C. Ltd., 2009 BCCA 602, [2010] 3 W.W.R. 225, at para. 66.

[308] Finally, we do not accept the submission that the decision in Dhingra bars the ex turpi causa doctrine from applying to NGRI individuals. In that case, the court was dealing with the well-established common law rule that a “person who is not guilty by reason of insanity, now termed not criminally responsible on account of mental disorder, is not prevented from taking under an insurance policy”: Dhingra, at para. 22. In the case at bar, we are dealing with the ex turpi causa doctrine, which, as discussed above, is fundamentally engaged in a consideration of whether an otherwise valid and enforceable action in tort should be invalidated because concern for the integrity of the legal system trumps the concern that the defendant is held responsible. Thus, very different policy concerns are considered in Dhingra from the case at bar, rendering it distinguishable.

[309] Accordingly, we dismiss this ground of appeal.

(e) Pre-judgment interest

[310] The respondents’ cross-appeal also challenges the trial judge’s refusal to award pre-judgment interest on awards for past income loss. For the reasons outlined below, we allow this ground of appeal.

[311] The trial judge recognized that under s. 128(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, pre-judgment interest may be ordered on damages for past pecuniary loss. However, he found that the damages experts extrapolated the income loss figures from a hypothetical starting date after release from the institution to retirement. Based on that finding, he concluded as follows: “[T]he lump sum figures for income loss damages represent an income stream over time. There is no need to add pre-judgment interest to these amounts as the time value of money is already accounted for in the awards.”

[312] The respondents submit that the trial judge erred because the parties’ experts did not incorporate the time value of money into their calculations. They submit that pre-judgment interest should be awarded on the respondents’ pre-trial income loss starting from the date the loss began to accrue. The trial judge failed to compensate the respondents by treating their past income loss as akin to “future projected losses.”

[313] The Physicians argue that, while generally pre-judgment interest is payable on past income loss awards, a trial judge has the discretion under s. 130(1) of the Courts of Justice Act to determine the amount of interest or to disallow an award of interest. Therefore, they submit that the decision not to award interest is entitled to deference.

[314] In the alternative, if the trial judge is found to have erred in not awarding pre-judgment interest, the appellants submit that the applicable interest rate is half of what was ordered for other awards that were subject to pre-judgment interest. This submission is in keeping with the common practice of applying half the rate of pre-judgment interest to pecuniary losses, as endorsed by this court in Borland v. Muttersbach (1985), 1985 2134 (ON CA), 53 O.R. (2d) 129 (C.A.).

[315] In our view, the denial of an award of pre-judgment interest on past income losses was based on the trial judge’s erroneous interpretation of the experts’ damages reports. Contrary to the trial judge’s finding, the parties’ experts did not incorporate the time value of money into their calculations. Therefore, the trial judge’s decision not to award pre-judgment interest on past loss of income awards is not entitled to deference and cannot stand. Accordingly, we order that pre-judgment interest be awarded on past income losses at a rate equal to half the rate otherwise ordered by the trial judge, which was 1.3 percent. Pre-judgment interest on these amounts will commence on January 1, 2000, which was the date the trial judge chose for the commencement of interest for the pre-judgment interest he did order.

D. DISPOSITION

[316] We allow the appeals and cross-appeal in part. To summarize:

▪ We do not interfere with the trial judge’s conclusion that Ontario and the Physicians are liable for breach of fiduciary duty.

▪ We uphold the trial judge’s finding of battery in relation to the following respondents: Reginald Barker, William Brennan, Roy Dale, John Finlayson, James Motherall, Michael Pinet, Russ Johnson, Terry Ghetti, and Eldon Hardy. We reverse his findings of battery against the other respondents.

▪ We reverse his finding of assault against all of the respondents.

▪ We set aside the judgment in favour of Mr. Kierstead.

▪ We set aside Mr. LePage’s judgment against Dr. Barker, but do not interfere with his judgment against Ontario.

▪ We reduce Mr. Pinet’s damages to $50,000 in general damages against Dr. Barker, Dr. Maier, and Ontario, who are all jointly and severally liable. We reduce his punitive damages to a total of $30,000, with $10,000 awarded against Dr. Barker, $10,000 against Dr. Maier, and $10,000 against Ontario.

▪ We reduce Mr. McCaul’s award, and award him (1) $30,000 in general damages against Dr. Maier and Ontario, who are jointly and severally liable, (2) $30,000 in punitive damages against Dr. Maier, and (3) an additional $70,000 in general damages and $50,000 in punitive damages against Ontario.

▪ We otherwise uphold the trial judge’s damages assessments.

▪ We vary his treatment of pre-judgment interest. Pre-judgment interest is to be awarded on past income loss awards at a rate of half the rate ordered by the trial judge (i.e., 1.3 percent), commencing January 1, 2000.

[317] The parties may make submissions on costs of the appeals and cross-appeal. The respondents' submissions are due within two weeks of the release of these reasons. They shall be no more than five pages in length, plus a costs outline. Ontario’s and the Physicians’ submissions are also limited to five pages each, and they are each required to file a costs outline. Their submissions are due one week after receiving the respondents’ cost submissions. The respondents may file reply submissions of no more than three pages within a week of receiving the appellants' costs submissions.

Released: July 29, 2022 “C.W.H.”

“C.W. Hourigan J.A.”

“Gary Trotter J.A.”

“B. Zarnett J.A.”

Appendix “A” – Damages awarded by the trial judge

Plaintiff	General	Income Loss	Punitive
Reginald Barker	$120,000
Jean-Paul Belec	$100,000		$100,000
Eric Bethune	$200,000	$33,000	$150,000
Joseph Bonner	$200,000		$100,000
William Brennan	$100,000	$10,000	$150,000
Stephen Carson	$15,000
Roy Dale	$100,000	$100,000	$100,000
Maurice Desrochers	$45,000
Donald Everingham	$3,000
John Finlayson	$2,000
Terry Ghetti	$1,000		$25,000
Bruce Hamill	$150,000
Eldon Hardy	$200,000		$100,000
William Hawboldt	$120,000
Danny Joanisse	$2.1 million		$600,000
Russ Johnson	$1,000
Stanley Kierstead	$1,000
Denis LePage	$200,000
Christian Magee	$150,000		$100,000
Douglas McCaul	$100,000		$100,000
Brian McInnes	$150,000	$170,000	$150,000
Allen McMann	$1 million	$385,000	$600,000
Leeford Miller	$150,000
James Motherall	$250,000
Michael Pinet	$350,000		$300,000
Edwin Sevels	$2,500
Samuel Shepherd	$2,000
Shauna Taylor	$500,000		$100,000

[^1]: As explained in our section “Palpable and overriding errors”, starting at para. 211, the trial judge erred in awarding damages to Mr. Kierstead. While the appellants owed fiduciary duties to Mr. Kierstead, there was no breach since he was never in any of the STU programs.

[^2]: Ontario points out that under the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, as applicable to this proceeding, Ontario is subject to all liabilities in tort in respect of torts committed by its servants and agents. Ontario concedes that it would be liable for torts found to have been committed by certain named employees, subject to its arguments about “core policy” immunity discussed below, starting at para. 96.

[^3]: See the discussion of informed consent below, starting at para. 127.

[^4]: The same words appear in the 11th edition of this treatise at §2.49. The paragraph ends with the important explanation: “The underlying policy thrust of the tort of assault, like that of battery, is the reduction of violence. Because threatening to inflict harm is apt to attract retaliation in the same way as causing harm, it must also be discouraged by tort law.”

[^5]: Barker v. Barker, 2017 ONSC 3397, 139 O.R. (3d) 96, at paras. 146, 151. As noted above, that decision was overturned on appeal on procedural fairness grounds.

[^6]: In contrast, other respondents were found to have suffered short-term harm that was moderate or substantial, or long-term harm that was mild, moderate or substantial.

[^7]: The trial judge appears to have adjusted this amount for inflation, as he states the amount is $6,687.