Sara Blake

The respondents were involuntarily admitted to a maximum-security psychiatric facility between 1966 and 1983, where they were subjected to experimental and abusive treatment programs, including mind-altering drugs and severe solitary confinement.

The trial judge found the province and the treating physicians liable for breach of fiduciary duty, battery, and assault, awarding substantial general and punitive damages.

On appeal, the Court of Appeal upheld the findings of breach of fiduciary duty and battery for certain respondents, but reversed the findings of assault and battery for others due to a lack of direct physical interference or imminent threat.

The Court rejected defences based on Crown immunity and historic limitation periods, and largely upheld the damages awards, including those exceeding the Andrews cap, while making specific adjustments for individual respondents.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The plaintiffs, promoters of a wind farm project, brought a motion to compel answers to questions and production of documents refused by the Crown during examinations for discovery.

The plaintiffs alleged that the Crown's refusal to issue a Renewable Energy Approval was due to bad faith political interference during the 2014 provincial election.

The Crown argued the questions were res judicata and the documents were not in its control or were protected by Cabinet privilege.

The Master granted the motion, finding the issues were not res judicata, the documents were relevant and within the Crown's control, and the public interest in disclosure outweighed any claim of Cabinet privilege.

During a trial, the defendants brought a motion to exclude a new reply report by the plaintiffs' expert, Dr. John Bradford.

The plaintiffs sought to introduce the report to address six questions they claimed arose unexpectedly from the defendants' experts' testimony.

The court reviewed the principles governing late-filed expert reports, noting they are only admissible to address new, unanticipated matters raised by the defence.

The court analyzed each of the six questions and found that only one (Question 4, regarding the difference between segregation in a hospital versus a prison setting) addressed a genuinely new opinion.

The motion to exclude was partially granted, with only Question 4 of the reply report admitted.

In a voir dire during a trial, the plaintiffs challenged the qualification of the defendants' proposed expert witness, a forensic psychiatrist, arguing that a previously undisclosed 2002 draft report demonstrated a lack of independence.

The plaintiffs alleged that the expert's subsequent 2003 and 2019 reports were substantively altered to align with the defendants' legal position.

The court held that while the differences between the reports raised a suspicion sufficient to lift any litigation privilege over the draft report, they did not warrant disqualifying the expert at the threshold stage.

The expert was qualified to testify, with the draft report permitted to be used for cross-examination, and the ultimate assessment of his credibility and independence reserved for the trial judgment.

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

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

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

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

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

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

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

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

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

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

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

The defendants brought a mid-trial motion to exclude the expert testimony of Professor Bernard Dickens, an ethicist, regarding the ethical standards of psychiatric care and research applicable in the 1960s and 1970s at the Oak Ridge Division of the Penetanguishine Mental Health Centre.

The defendants argued that Prof. Dickens, not being a physician, was unqualified to speak on psychiatric standards of care and that his reports primarily constituted legal analysis.

The court dismissed the motion, finding Prof. Dickens highly qualified as an expert in medical ethics, distinguishing ethical standards from medical standards of care and legal analysis.

The defendants brought a mid-trial motion to determine the admissibility of two reply expert reports (Prof. Shane O’Mara and Dr. Stephen Xenakis) served by the plaintiffs just before trial.

The defendants argued the reports were late and constituted impermissible case splitting.

The plaintiffs contended the lateness was due to unforeseen circumstances and that the evidence would assist the court.

The court found that the issues addressed by the reply reports were foreseeable and had already been covered by the plaintiffs' initial experts, thus constituting new evidence rather than proper reply.

The court dismissed the motion, ruling the reports inadmissible to avoid prejudice to the defendants and further trial delays, emphasizing the importance of adhering to trial schedules in a long-standing action.

The plaintiffs brought a mid-trial motion to amend their statement of claim to include reliance on section 16(1)(h.2) of the Limitations Act, 2002, and the common law doctrine of discoverability.

The claims arose from their treatment as involuntary patients at a mental health facility between 1966 and 1983, alleging assault through abusive experimentation and physical abuse.

The defendants opposed the amendment, arguing prejudice due to lack of particularity and insufficient discovery on discoverability.

The court granted the motion, finding no prejudice to the defendants as the allegations of assault and dependency were already pleaded, and the defendants had prior notice of the plaintiffs' intent to rely on section 16(1)(h.2) and had extensively explored issues related to discoverability (laches) during previous discovery examinations.

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

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

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

The motion to exclude the evidence was granted.

At a pre-trial conference for a six-week trial, the court provided procedural directions regarding the presentation of evidence.

The court permitted the plaintiffs to use affidavits for their evidence-in-chief to save time, but declined to admit discovery transcripts en masse.

The court also agreed with the defendant that the judge should not read the expert reports until after hearing the plaintiffs' viva voce evidence, to avoid being influenced by the experts' interpretation of the plaintiffs' testimony before hearing it firsthand.

The Crown brought an ill-conceived motion to compel answers to undertakings and refusals from the Plaintiffs on the eve of trial in a multi-plaintiff action concerning alleged inhumane experimentation at a mental hospital.

The court dismissed the motion, finding that the Plaintiffs had made good faith efforts to provide disclosure given their health limitations and the age of the records.

The judge emphasized that the Rules of Civil Procedure are to facilitate, not impede, litigation, and that proportionality and common sense must guide discovery.

Many of the Crown's requests were deemed a "fishing expedition" or sought information the Crown could obtain independently.

The Plaintiffs were awarded $30,000 in substantial indemnity costs due to the Crown's conduct in unnecessarily lengthening the proceeding.

This is a trial management endorsement following a Court of Appeal decision that vacated a partial summary judgment and remitted the matter for a full trial.

The court addresses the plaintiffs' request for bifurcation (liability first, then damages) and the defendants' preference for a combined trial.

Given the age of the plaintiffs and the historical nature of the claims (1966-1983), the court emphasizes the need for expedition while ensuring procedural fairness.

The court orders a hybrid trial, combining affidavit evidence with necessary viva voce testimony, scheduled for 6 weeks, covering liability issues, with damages to be determined later.

The trial is scheduled for May-June 2019, despite scheduling conflicts for some defence counsel, prioritizing the need for a firm trial date.

The Children's Lawyer for Ontario appealed a Divisional Court decision upholding an Information and Privacy Commissioner's order that the Ministry of the Attorney General (MAG) had custody or control of the Children's Lawyer's litigation records relating to child clients, and therefore such records were subject to freedom of information access requests under FIPPA.

The Court of Appeal allowed the appeal, holding that the Children's Lawyer operates independently from MAG with respect to her core functions of representing children, and therefore MAG does not have custody or control of child client records.

The court emphasized the importance of confidentiality in the Children's Lawyer-child relationship to the proper functioning of the legal system and the best interests of children.

The applicant's motion to set aside a previous Divisional Court order under Rule 59.06 was dismissed as an abuse of process.

The successful respondents and intervenors sought costs.

The applicant argued against a costs award, citing impecuniosity and public interest.

The court rejected the public interest argument but considered impecuniosity in determining the quantum.

The Attorney General and the Justices of the Peace Review Council were awarded $7,500 each on a partial indemnity basis.

The intervenors, the applicant's former counsel, were awarded $23,000 on a substantial indemnity basis due to the applicant's reprehensible conduct in making unfounded allegations of ineffective assistance of counsel.