Court of Appeal for Ontario

Date: 2022-09-15 Docket: C68573 & C68586

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.

Parties and Counsel

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 His Majesty the King in Right of Ontario Defendants (Appellants/Respondents on Cross-Appeal)

Before: Hourigan, Trotter and Zarnett JJ.A.

Counsel:

Ann Christian-Brown and Stacey Hsu, for the appellant His Majesty the King in Right of Ontario Frank McLaughlin, Sam Rogers, 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: In writing

Costs Endorsement

[1] These grouped appeals and cross-appeal, heard over four days, were complex. They involved claims made by the 28 respondents who were residents at the maximum-security Oak Ridge Division of the Mental Health Centre in Penetanguishene at various times between 1966 and 1983. They sued Her Majesty the Queen in Right of Ontario, now the King in Right of Ontario (“Ontario”) and two Oak Ridge doctors (the “Physicians”). Following a 71-day trial, they were awarded damages totalling approximately $9.6 million and costs of $4.9 million [1].

[2] In reasons dated July 29, 2022, we allowed the appeals and cross-appeal in part: 2022 ONCA 567.

[3] We upheld the trial judge’s conclusion that Ontario and the Physicians are liable for breach of fiduciary duty. We also upheld his findings on battery in relation to 9 of the 28 respondents.

[4] We reversed the trial judge’s findings on assault, and varied, in one respect, the trial judge’s treatment of pre-judgment interest. Further, we set aside the judgment of $1,000.00 in favour of Stanley Kierstead, and Denis LePage’s judgment as against Dr. Barker, but not as against Ontario, with the result that the damages payable to him were not reduced. Finally, we reduced judgments in favour of two respondents ─ Michael Pinet and Douglas McCaul ─ due to the particular facts that pertain to their situations. In total, the reductions amounted to approximately six percent of the damages awarded by the trial judge.

[5] In summary, we: (1) upheld the damages awards for 25 of the 28 respondents; (2) reduced the damages awards for 2 of the respondents; and (3) overturned 1 damages award in the amount of $1,000.00.

[6] The parties were invited to make costs submissions in the event that they could not reach an agreement on costs. No agreement was reached. In their written submissions, the respondents sought costs of $480,250.00 for fees and $36,303.35 for disbursements. Both amounts are inclusive of H.S.T.

[7] The appellants challenge the quantum of costs sought by the respondents in this court and seek a reduction in the costs awarded at trial.

Appeal Costs

[8] The appellants concede that the respondents are entitled to their costs in this court. However, they submit that the costs claimed should be significantly reduced to account for the divided success on the appeals and cross-appeal. In addition, the appellants also contend that a reduction is warranted because the costs claimed far exceed the parties' reasonable expectations. They submit that a reasonable costs award ranges from $153,363.00 to $196,696.00.

[9] We conclude that the respondents are entitled to the full amount of their costs claimed for the appeals and cross-appeal.

[10] While there was mixed success in this court, the trial judgment remained largely intact. It is appropriate in this case to consider the overall success achieved by the respondents rather than considering success on an issue by issue basis: Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33, at para. 21. We find there is not a sufficient variation in the trial judgment as a result of the appeals and cross-appeal to warrant a reduction to the costs the respondents are otherwise entitled to receive.

[11] As for the appellants’ submission regarding the reasonableness of the costs claimed on the appeals and cross-appeal, we are not prepared to reduce the amount claimed. The Physicians’ actual fees totalled $539,340.00, and Ontario’s actual fees totalled $270,713.50. These amounts reflect the complex nature of the many legal and factual issues raised in this court.

[12] While the amount claimed by the respondents is significant, it should not have been out of the parties' reasonable expectations. We find that the respondents took reasonable efforts to uphold the judgment against the combined forces of the government of Ontario and the insurers for the two Physicians. In the circumstances, there is no basis for this court to reduce the amount claimed: Waxman v. Leibow, at para. 2.

Trial Costs

[13] The appellants also seek a reduction of $462,392.85 to the costs awarded at trial on the basis that the judgment against Mr. Kierstead was overturned. They arrive at this figure by reducing the total trial costs awarded by 1/28, as there are 28 respondents.

[14] We decline to vary the costs awarded by the trial judge. We are not satisfied that the setting aside of a $1,000.00 judgment warrants making an adjustment of $462,392.85 in costs. In our view, Mr. Kierstead's claim represented a minor part of the proceedings below. It is neither realistic nor equitable to attempt to extricate the costs of that claim from the global costs award.

Conclusion

[15] In the result, we award the costs of the appeals and cross-appeal to the respondents in the all-inclusive sum of $516,553.35. We decline the request to vary the costs awarded by the trial judge.

“C. W. Hourigan J.A.”

“Gary Trotter J.A.”

“B Zarnett J.A.”

[1] See reasons on costs: 2021 ONSC 4275, 68 E.T.R. (4th) 226.