COURT FILE NO.: 00-CV-199551

DATE: November 29, 2013

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

REGINALD BARKER, JEAN-PAUL BELEC, JOSEPH BONNER, WILLIAM

BRENNAN, GERALD HARVEY CAIRNS, MAURICE DESROCHERS, EDDIE ELKSMITH, DONALD EVERINGHAM, JOHN FINLAYSON, ROBERT FROST, GARY L. GENEREAUX, TERRY GHETTI, BRUCE HAMILL, ELDON HARDY,

WILLIAM HAWBOLDT, DANNY A. JOANISSE, RUSS JOHNSON, STANLEY KIERSTEAD, HENRY KOWALSKI, DENIS LEPAGE, CHRISTIAN MAGEE, DOUGLAS McCAUL, WILLIAM A. McDOUGALL, BRIAN FLOYD McINNES, ALLEN McMANN, JAMES MOTHERALL, MARTIN OSTROWSKI, FREDERICK

PHILP, MICHAEL ROGER PINET, EDWIN SEVELS, SAMUEL FREDERICK CHARLES SHEPPARD, MARC SINGER, SHAUNA TAYLOR (formerly Vance H. Egglestone), GEORGE THOMPSON, GERALD VAUGHAN, and BRIAN WILLIAMSON

Plaintiffs

– and –

ELLIOTT THOMPSON BARKER, GARY J. MAIER and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendants

Peter R. Jervis and Suzanne Chiodo for the Plaintiffs

Sara Blake for Her Majesty the Queen in Right of Ontario

Sarah W. Corman and Byron Shaw for Elliott T. Barker and Gary J. Maier

HEARD: November 22, 2013

PERELL, J.

REASONS FOR DECISION

[F]rom a very early date, not later than the fifteenth century, the common law of England (the law made and administered by the judges, case by case, in the ordinary courts) adamantly set its face against the use of torture … (Tom Bingham, The Rule of Law, London: Penguin Books, 2010)

A. INTRODUCTION AND OVERVIEW

[1] In this action, there are 36 Plaintiffs, all of whom, at various times between 1968 and 1979, were incarcerated as patients of the Oak Ridge division of the Penetanguishene Psychiatric Hospital, where they were medically treated by the Defendants.

[2] The Plaintiffs allege that the medical treatment they received, which was known as social therapy, was unethical and illegal. The Plaintiffs state that they were the subjects of experimentation and torture. In advancing their claim, among other international treaties, the Plaintiffs rely on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, [1987] Can. T.S. No. 36 (entered into force 26 June 1987), which is part of Canada’s international human right’s obligations.

[3] The Defendants, Dr. Elliott Thompson Barker and Dr. Gary J. Maier, who were psychiatrists at Oak Ridge, and Her Majesty the Queen in right of the Province of Ontario (“Ontario”), which administered Oak Ridge, relying on a 1978 public report adopted by the Ombudsman of Ontario, An Evaluative Study of the Social Therapy Unit, Oak Ridge Division, Penetanguishene Mental Health Centre, state that the patients at Oak Ridge benefitted greatly from the social therapy experience and the treatment was of considerable benefit not only to the patients but to the hospital as a whole and to the country. The Defendants note that the Ontario Ombudsman concluded that the Social Therapy Program at Oak Ridge was one of the most forward-thinking programs in the world.

[4] For the purposes of the motion that is now before the court, which is to amend the Statement of Claim to add five more former Oak Ridge patients as party plaintiffs, I do not have to decide whether the social therapy programs were torture or the most forward-looking programs in the world.

[5] What I have to decide is whether it is plain and obvious that the undeniably old historic claims of the five proposed additional plaintiffs are untimely and statute-barred. For the reasons that follow, I conclude that at this juncture of the proceedings, it cannot be determined whether the claims are statute-barred and accordingly the Plaintiffs’ motion to amend their Statement of Claim should be allowed.

B. Factual and Procedural Background

1. The Oak Ridge Social Therapy Unit

[6] In 1972, the Plaintiff Danny A. Joanisse was admitted to Oak Ridge after he had been found not guilty by reason of insanity to a charge of attempted murder.

[7] In 1976, Vance Egglestone (now, after a sex-change, Shauna Taylor) was admitted to Oak Ridge pleading not guilty by reason of insanity to a charge of rape. He was detained at Penetanguishene for various periods since his first admission.

[8] Eric Bethune (formerly known as Jean-Jacque Berthiaume) voluntarily attended Oak Ridge in 1966, and he left Oak Ridge in the same year.

[9] Stephen Carson was detained at Oak Ridge from January 1978 to January 1979.

[10] Robert Haberle was admitted in or about 1973 and remained at Oak Ridge for about 2 years.

[11] Leeford Miller was detained at Oak Ridge from 1977 to 1983, and outside the relevant period from 1984 to1985, 1992 to 1995 and from 1996 to the present.

[12] Roy Dale was detained at Oak Ridge for 30 days in 1972, then again from 1974 to 1979.

[13] In the 1960s to the 1980s, Oak Ridge was a maximum security mental health facility for, among others, mentally ill accused men found unfit to stand trial and accused men found not guilty by reason of insanity. It was also a facility for involuntary male patients who were not manageable in less secure facilities. Typically, the patients of Oak Ridge had criminal records that often included violent crimes. They suffered from a variety of psychiatric illnesses including personality disorders, schizophrenia, sexual deviation, and organic brain disorders.

[14] Oak Ridge was administered by the Ministry of Health. It was a designated institution under the Mental Hospitals Act, R.S.O. 1960, c.236, the Mental Hospitals Act, R.S.O. 1970 c.270, and the Mental Hospitals Act, R.S.O. 1980, c.263.

[15] It was a Schedule 1 psychiatric facility under the Mental Health Act, S.O. 1967, c.51, the Mental Health Act, S.O. 1970, c.269, and the Mental Health Act, S.O. 1980, c.262.

[16] Dr. Barry Boyd, now deceased, was the Superintendent or Officer in Charge of Oak Ridge from 1960-1974, and the Medical Director from 1974 to 1978. He established what was known as the STU or Social Therapy Unit at Oak Ridge. Dr. Boyd hired the Defendants, Drs. Baker and Maier.

[17] From 1966 and 1972, Dr. Barker was Assistant Superintendent and Clinical Director of the Social Therapy Unit. Between 1972 and 1978, he worked part-time conducting court-ordered assessments. Between 1978 and 1979, he returned to administer the Social Therapy Unit on a part-time basis. Dr. Barker developed intensive therapy programs to treat his patients at Oak Ridge.

[18] Dr. Maier completed his residency at Oak Ridge between 1972 and 1973, and in 1973, he was appointed Clinical Director of the Social Therapy Unit. He served in that position until June 30, 1978. He treated his patients using the intensive therapy programs developed by Dr. Baker.

[19] Following the departure of Drs. Barker and Maier, Dr. Julia O'Reilly, another psychiatrist, was the director of the Social Therapy Unit and she continued until 1983.

[20] The Plaintiffs allege that the intensive therapy programs used as treatment by Drs. Baker, Maier, and O’Reilly involved solitary confinement, sensory deprivation, humiliation, force, restraints, the use of hallucinogens and delirium-producing drugs, including LSD, nude group confinement in a capsule, and other forms of physical and mental abuse. They allege that the intensive programs were mind altering experiments that incorporated abuse coupled with psychological torture. They alleged that the psychiatrists engaged in degrading and abusive human experimentation that could not be justified on medical or scientific grounds and that had severely deleterious effects.

[21] The Plaintiffs allege that “the purported treatment initiated and conducted by Barker and Maier, and continued by O'Reilly, was not based on credible proven scientific research, but rather, was the invention of inexperienced psychiatrists who conducted their research within an institution of the Crown.” The Plaintiffs state that: “they were effectively the subjects of experimentation and torture.”

2. Procedural History

[22] With the law firm of Rochon Genova LLP as proposed Class Counsel, on October, 25 2000, Mr. Egglestone commenced this action as a proposed class action.

[23] On August 5, 2003, Justice Cumming added Mr. Joanisse as a co-plaintiff. See Egglestone v. Barker [2001] O.J. No. 1617 (S.C.J.).

[24] As proposed representative plaintiffs, Messrs. Eggleston and Joanisse brought their proposed class action on behalf of:

(a) All individuals who were incarcerated at Oak Ridge division of the Penetang Psychiatric Hospital in Penetanguishene, Ontario between 1968 and 1979 and who participated in the Motivation, Attitude, Participation Program ("M.A.P.") or, where such individuals are deceased, the personal representatives of the estates of the deceased individuals;

(b) All individuals who were incarcerated at Penetanguishene between 1968 and 1979 and who participated in the Total Encounter Capsule Program (the "Capsule") or, where such individuals are deceased, the personal representatives of the estates of the deceased individuals; and

(c) All individuals who were incarcerated at Penetanguishene between 1965 and 1979 and who participated in Defence Disruptive Therapy ("D.D.T.") or, where such individuals are deceased, the personal representatives of the estates of the deceased individuals."

[25] On August 5, 2003, Mr. Justice Cullity dismissed the Plaintiffs’ motion to certify the proceedings as a class action finding that the issues were predominantly individual in nature. See Egglestone v. Barker, [2003] O.J. No. 3137 (S.C.J.)

[26] The Plaintiffs appealed, and on November 22, 2004, the Divisional Court dismissed their appeal. See Joanisse v. Barker, [2004] O.J. No. 5443 (Div. Ct.) On May 18, 2005, the Court of Appeal denied leave to appeal.

[27] Because certification of the proposed class proceeding was denied, formal notice of the class action was never published to individuals who might have claims against the Defendants. Communicating with putative class members was difficult because most had serious mental health problems. Others lived on social assistance programs or led transient lifestyles without permanent addresses or stable employment. Over the years, prospective Plaintiffs contacted Rochon Genova (“Plaintiffs’ counsel”) on a piecemeal basis as they became aware of the lawsuit.

[28] On 30 March 2006, the Plaintiffs moved for an order permitting the proceeding to continue as an individual action pursuant to section 7 of the Class Proceedings Act, 1992. On April 7, 2006, Justice Cullity granted the motion with the result that multi-party claim would grow in number to the 36 Plaintiffs, now before the Court. See Joanisse v. Barker, 2006 CarswellOnt 10233 (S.C.J.).

[29] On October 12, 2006, the Plaintiffs issued their Statement of Claim.

[30] From 2006 to 2013, the action slumbered or lumbered erratically forward. During this time, Rochon Genova remained uncertain about whether there were others who might be joined as Plaintiffs. During this period, the lawyers for the parties negotiated about the production of medical records.

[31] The five proposed additional Plaintiffs, Messrs. Bethune Carson, Dale, Haberle, and Miller were not named as plaintiffs in the multi-plaintiff action, but in the years following the issuance of the Fresh Statement of Claim, they individually contacted Rochon Genova and expressed a desire to be included in the action.

[32] On May 26, 2010, the Plaintiffs served a draft of a proposed Amended Fresh Statement of Claim, which would have joined Messrs. Bethune, Carson, Dale, Haberle, and Miller.

[33] In June and July of 2010, the Crown - but not the Defendant doctors - consented to the addition of the five proposed additional Plaintiffs. However, the draft Amended Fresh Statement of Claim was never issued.

[34] Notwithstanding that the matter of amending the Statement of Claim was outstanding, the parties began documentary disclosure and the Defendants delivered their Statements of Defence.

[35] On April 13, 2011, Ontario wrote Rochon Genova to request that it take the necessary steps to regularize the Statement of Claim.

[36] On August 8 and 9, 2011, counsel for Ontario and for the Defendant physicians wrote to Rochon Genova and urged it to deliver the amended pleading. Here, it should be noted that the Defendant physicians never consented to any joinder and the request for a pleading was made by their counsel in order for instructions to be obtained.

[37] On November 22, 2011, The Defendant physicians’ counsel wrote a letter to Plaintiffs counsel and inquired whether the Plaintiffs actually intended to proceed with the action.

[38] On March 9 2012, Plaintiffs’ counsel wrote to the Defendants counsel to propose the addition of four more Plaintiffs who had not previously been mentioned.

[39] On March 20 and 24, 2012, Ontario and the Defendant physicians’ counsel wrote to object to the addition of this new group of four Plaintiffs. The email went on to note the significant limitation period issues and to assert an escalating prejudice to the Defendants. The email stated: “As this action drags on, never advancing beyond the pleadings stage, it will become increasingly difficult to find witnesses with relevant expertise from that era.”

[40] On April 5, 2012, counsel for the Defendant physicians’ wrote to request a response to the March correspondence. A similar letter was written on April 25, 2012. The letter also requested a timetable to move the action forward.

[41] In June 2012, the lawyers exchanged communications concerning a timetable.

[42] After a conversation with Plaintiffs’ counsel on July 16, 2012, counsel for the Defendant physicians’ wrote to confirm that the Plaintiffs would not seek to add the four additional Plaintiffs, and she proposed a timetable for the delivery of regularized pleadings respecting deceased plaintiffs and to add Messrs. Bethune, Carson, Dale, Haberle, and Miller. She, however, once again was not agreeing to the joinder but rather wished to be in a position to take instructions to agree or oppose the joinder.

[43] The Plaintiffs’ counsel replied to confirm their agreement to the timetable, and the timetable was incorporated into a court order.

[44] On 13 September 2012, Plaintiffs’ counsel wrote to the Defendants’ counsel to advise that six Plaintiffs would be removed from the claim, and that they were going through the process of obtaining an order to continue on behalf of the estate of one of the deceased plaintiffs. The Plaintiffs’ counsel attached a document called “Second Fresh as Amended Statement of Claim, which included the names of the five plaintiffs first proposed more than two years previously, on May 26, 2010.

[45] On September 21, 2012, Ontario’s counsel responded by email to point out that the draft claim, among other things, contained changes from the drafts that had never been issued. In order to obtain instructions, Ontario requested a revised draft Amended Fresh Statement of Claim and draft order for adding and removing additional plaintiffs.

[46] On October 3, 2012, the Defendant physicians’ counsel prompted Plaintiffs’ counsel for a response to the Crown’s email.

[47] On October 19, 2012, Ontario wrote to advise it would no longer consent to the addition of the five plaintiffs. The letter asserted that the five individuals’ claims were out of time. On the same day, counsel for the Defendant physicians counsel wrote to confirm their opposition to the addition of the proposed five Plaintiffs.

3. Prejudice to the Defendants

[48] Ontario and the Defendant physicians submit that they will be prejudiced should leave be granted to join five more claims to the existing action.

[49] In this regard, the Defendants rely on the following factual circumstances: (a) Dr. Boyd died in 1992. He would have been the Crown’s key witness and an important witness for the Defendant physicians; (b) Dr. O’Reilly died before the commencement of the action. She was the attending psychiatrist in the early 1980s. The Plaintiffs make allegations respecting Dr. O’Reilly in eleven paragraphs of the Fresh Statement of Claim; (c) The Defendant physicians are of advanced ages. Dr. Barker is now 80 years old, and Dr. Maier, is 70 years old; (d) some Plaintiffs make claims respecting their participation in the “Capsule,” but the video tapes of each patient’s participation in the Capsule” were destroyed long before this action was commenced; and (e) other documentary evidence including many patient writings and information regarding consent discussions with patients has also been long since destroyed.

4. Request for Leave to Discontinue

[50] The Plaintiffs also seek to discontinue the joinder of nine claims without costs. This part of the motion is not opposed.

[51] Eddie Elksmith, Gary L. Genereaux, Frederick Philp, and Gerald Vaughan have all died, and Plaintiffs' counsel has either been unable to find a representative of their estate or their estate representative has refused to continue the litigation.

[52] With respect to those claimants for whom an estate representative has not been found, Plaintiffs' counsel contacted the Office of the Public Guardian and Trustee for Ontario, but it indicated that it is unable to act as litigation guardians for the deceased claimants.

[53] Gerald Harry Cairns, Henry Kowalski, Martin Ostrowski, Marc Singer, and George Thompson have decided that they no longer wish to be involved with the litigation.

C. DISCUSSION AND ANALYSIS

1. The Parties’ Arguments

[54] The Defendants argue that limitation periods for the five Plaintiffs’ claims have expired and bar their joinder to the existing action that had begun as a proposed class action.

[55] The Plaintiffs deny that there is any limitation period to bar their claims. They submit that s. 28 (1) of the Class Proceedings Act, 1992 suspended the expiry of any limitation periods affecting the five new Plaintiffs and, in the alternative, the Plaintiffs submit that doctrine of "special circumstances" is available and applies to permit the requested amendments. Under the special circumstances doctrine the five new Plaintiffs could be joined notwithstanding the expiry of the limitation periods because under this doctrine, the five new Plaintiffs would be able to shelter under the timely claims of the original Plaintiffs or the timely claims of the Plaintiffs joined by Justice Cullity`s order.

[56] The Defendants counterargument, however, is that s. 28(1) of the Class Proceedings Act, 1992 cannot suspend a limitation period that has already elapsed and that the elements of the special circumstances doctrine have not been satisfied in the case at bar.

[57] The Plaintiffs’ surrejoinder is that it is premature to decide the limitation period question and that the Defendants will not be prejudiced by the joinder of the five additional Plaintiffs and, therefore, their motion for leave to deliver a Fresh Amended Statement of Claim should be allowed.

2. Overview of the Analysis

[58] By way of overview of the analysis that follows, my conclusion is that pursuant to the transition provisions of the Limitations Act, 2002, S.O. 2002, c.24, Sched. B, s. 24, the former limitation periods found in the Medical Act, the Health Disciplines Act, 1974, the Mental Hospitals Act, or the Mental Health Act might arguably apply to the claims of the five Plaintiffs; however, it is not plain and obvious that these limitation periods do apply; therefore, the five Plaintiffs should be joined without prejudice to the Defendants’ right to plead that the claims are statute-barred.

[59] In other words, notwithstanding the strong arguments of the Defendants that several former limitation periods apply to the five new Plaintiffs’ claims, there are reasonable arguments that the several statutes relied on by the Defendants do not apply to torture. Therefore, there are no limitation periods applicable to the five Plaintiffs’ claims.

[60] It should also be noted that in the discussion that follows, it shall not be necessary to consider the parties’ arguments about the operation of s. 28 of the Class Proceedings Act, 1992, which suspends the operation of limitation periods for a defined period of time.

[61] A discussion of s. 28 is not necessary, because on the one hand, I agree with the Defendants that s. 28 of the Class Proceedings Act, 1992 cannot operate to resuscitate an action that is already statute-barred, and on the other hand, resort to s. 28 is unnecessary, if it arguable that the running of the limitation period does not need to be suspended because there is no limitation period applicable. In any event, the operation of s. 28 of the Class Proceedings Act, 1992 can be left to the court deciding whether the Plaintiffs` claims are statute-barred.

[62] In the discussion that follows, for similar reasons it shall also not be necessary to discuss the parties’ arguments about whether the special circumstances doctrine applies.

[63] Further, in the discussion that follows, although the parties spent considerable time discussing the significance of Justice Cumming’s decision to join Mr. Joanisse, Justice Cullity’s judgment refusing to certify the action as a class proceeding, and Justice Cullity’s judgment joining the current Plaintiffs pursuant to s. 7 of the Class Proceedings Act, 1992, I shall not be discussing those judgments. While these decisions had something to say about limitation periods, they do not contain any discussion about the critical issues, which are whether or not the Medical Act, the Health Disciplines Act, 1974, the Mental Hospitals Act, or the Mental Health Act set a time limit for a plaintiff whose grievance is that he was tortured by a physician at a mental health facility.

3. The Possibly Applicable Limitation Periods

[64] The five Plaintiffs concede that they discovered their various claims against the Defendants before January 1, 2004, which is when the current Limitations Act, 2002 came into force.

[65] Section 24 provides the transition provisions for the Limitations Act, 2002. Section 24 states:

Transition

Definition

24. (1) In this section,

“former limitation period” means the limitation period that applied in respect of the claim before January 1, 2004.

Application

(2) This section applies to claims based on acts or omissions that took place before January 1, 2004 and in respect of which no proceeding has been commenced before that date.

Former limitation period expired

(3) If the former limitation period expired before January 1, 2004, no proceeding shall be commenced in respect of the claim.

Former limitation period unexpired

(4) If the former limitation period did not expire before January 1, 2004 and if no limitation period under this Act would apply were the claim based on an act or omission that took place on or after that date, there is no limitation period.

Same

(5) If the former limitation period did not expire before January 1, 2004 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 that date, 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, the former limitation period applies.

No former limitation period

(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. ….

[66] The Defendant’s argument was that since: (1) the five Plaintiffs’ claims were based on acts or omissions that took place before January 1, 2004; (2) no proceeding has been commenced by the five Plaintiffs before January 1, 2004, and (3) the former limitation periods expired before January 1, 2004; therefore, no proceeding shall be commenced in respect of the claim.

[67] Put shortly, it was the Defendants’ argument was the former limitation periods applied and those provisions applied to bar the five Plaintiffs’ claims. See Meady v. Greyhound Canada Transportation Corp., 2008 ONCA 468, at paras. 11, 13; St. Jean (Litigation Guardian of) v. Cheung, 2008 ONCA 815, at paras. 30-31.

[68] It should be noted that a premise of the Defendants’ argument is that no proceedings had been commenced by the five Plaintiffs before January 1, 2004. This premise ignores the fact that the five proposed Plaintiffs were putative class members in the proposed class action commenced by Mr. Egglestone in October 2000. If that action, which was brought on behalf of the five Plaintiffs (and others similarly situated) qualifies as a proceeding commenced before January 1, 2004, then the transitional provisions would not apply, and presumably, the Limitations Act, 2002 would itself govern. For present purposes, however, both parties argued the motion on the footing that the relevant limitation periods were those in existence, if at all, before the Limitations Act, 2002 came into force.

[69] I do not know whether the five Plaintiffs would be better or worse off under the Limitations Act, 2002, but simply point out that this may be another reason for leaving the availability of a limitation period defence for another day.

[70] On the basis that it is former limitation periods that might apply to bar the five Plaintiffs’ claims, there are four statutory provisions to consider; namely:

• Section 48 of the Medical Act, R.S.O. 1960, c. 234, which was in force during the relevant period until it was repealed on June 28, 1974 (by s. 68 of the Health Disciplines Act, 1974, S.O. 1974, c. 47);

• Section 17 of the Health Disciplines Act, 1974, supra, which came into force on June 28, 1974;

• Section 10 (later s. 9) of the Mental Hospitals Act, R.S.O. 1960, c. 236, which is in force during the time when the five Plaintiffs were at Oak Ridge; and

• Section 58 of the Mental Health Act, 1967, S.O. 1967, c. 51, which came into force June 1, 1968 onward, during the time when four of the five Plaintiffs were at Oak Ridge.

[71] Section 48 of the Medical Act provided:

48. No duly registered member of the College is liable to any action for negligence or malpractice, by reason of professional services requested or rendered, unless such action is commenced within one year from the date when in the matter complained of such professional services terminated.

[72] Section 17 of the Health Disciplines Act, 1974 provided:

17. No duly registered member of a College is liable to any action arising out of negligence or malpractice in respect of professional services requested or rendered unless such action is commenced within one year from the date when the person commencing the action knew or ought to have known the fact or facts upon which he alleges negligence or malpractice.

[73] Section 10 (later s. 9) of the Mental Hospitals Act provided:

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 against an institution or an officer, employee or servant thereof for a tort of a patient.

[74] Section 58 of the Mental Health Act, 1967 provided:

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 thereafter.

4. The Application of the Possibly Applicable Limitation Periods

(a) Section 48 of the Medical Act and Section 17 of the Health Disciplines Act, 1974

[75] Section 48 of the Medical Act provided an absolute limitation period that ran for one-year from the date of the termination of professional services, regardless of when the plaintiff learned the material facts giving rise to the cause of action: Fehr v. Jacob, 1993 4407 (MB CA), [1993] 5 W.W.R. 1 (Man. C.A.), at pp. 6-7; Peixero v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, at para. 37; Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53, at para. 23; Martin v. Perrie, 1986 73 (SCC), [1986] 1 S.C.R. 41, at 44-45; Miller v. Ryerson (1892), 22 O.R. 369 (C.A.); Marshall v. Parker, [1998] N.S.J. No. 518 (S.C.), at para. 8; Beatty v. Waters, 2002 MBQB 100, at para. 24; B.H. v. Dattani (2010), 2010 SKCA 1, 315 D.L.R. (4th) 705 (Sask. C.A.), at paras. 21-26.

[76] Section 17 of the Health Disciplines Act, 1974 provided a one-year period from when the person commencing the action knew or ought to have known the facts upon which he or she alleges negligence or malpractice.

[77] For present purposes, it can be assumed that the one-year under either Act has run its course.

[78] The issue then is whether either statute applies to the circumstances of the five Plaintiffs’ claims. The operative language is the same in both statutes:

No duly registered member of the College is liable to any action for negligence or malpractice, by reason of professional services requested or rendered…”

[79] This language was first introduced in the Medical Act in Ontario in 1887 in An Act to Amend the Medical Act, R.S.O. 1887, c. 24, s. 2. The statute was passed to provide “special protection” for physicians and to safeguard them for professional negligence or malpractice claims: Miller v. Ryerson (1892), 22 O.R. 369 (C.A.), at p. 372; Hadley v. Allore (1988), 1987 4197 (ON CA), 63 O.R. (2d) 208 (C.A.) at p. 211; Martin v. Perrie, 1986 73 (SCC), [1986] 1 S.C.R. 41, at 50-51.

[80] The language is very broad, and the case law holds that it was meant to cover any cause of action in any way based upon the relationship of doctor and patient, regardless of the manner in which the cause of action is framed: McBain v. Laurentian Hospital (1982), 35 C.P.C. 292 (H.C.J.) at p. 298. Courts have held that claims framed in fiduciary duty are statute-barred pursuant to provisions similar to s. 48 of the Medical Act and s. 17 of the Health Disciplines Act, 1974. See for example, Beatty v. Waters, 2002 MBQB 100, at para. 25; B.H. v. Dattani, (2010), 2010 SKCA 1, 315 D.L.R. (4th) 705 (Sask. C.A.), at para. 37.

[81] In Boase v. Paul, 1931 192 (ON CA), [1931] O.R. 625 (C.A.) at p. 629 Justice Hodgin stated that the term “malpractice” was “fairly comprehensive” and that the language covered any cause of action arising out of or in the course of professional services requested or rendered. In the same case, Justice Middelton stated at pp. 629-630 that the language covered any actionable wrong arising from the professional relationship, and he stated that “If there is any actionable wrong after that relationship is established, it falls under the head of ‘negligence or malpractice’”.

[82] See also Vincent v. Hall (1985), 1985 1981 (ON SC), 49 O.R. (2d) 701 (H.C.J.) at p. 703; and Fishman v. Waters (1983), 1983 2921 (MB CA), 4 D.L.R. (4th) 760 (Man. C.A.) at p. 762, where the Manitoba court included within malpractice any practice by a physician whereby a patient is injured whether it be by neglect or for curiosity and experiment.

[83] Relying on these authorities, the Defendant physicians Barker and Maier were members of the College of Physicians and Surgeons and they submit that their interactions with the proposed plaintiffs was in the context of patient-physician relationships, in which they provided “professional services” which were “requested or rendered,” and, therefore, the essence of the proposed Plaintiffs’ claims is malpractice arising from the patient-physician relationship and covered by the language of the statutes designed to protect physicians. The Defendants submit that whether labelled “negligence,” “battery,” “breach of fiduciary duty,” or failure to obtain consent for the therapy, the Plaintiffs’ claims are all statute-barred “malpractice” claims.

[84] The Plaintiffs’ counterargument is essentially quite simple. They say that “torture” is not “negligence or malpractice, by reason of professional services requested or rendered.”

[85] In response, during argument, the Defendants pointed out, as had Justice Cullity in his judgment refusing certification, that there was no pleading of bad faith or improper purpose, but I do not see how that makes a difference about whether malpractice by reason of professional services rendered includes torture. The moral debate about whether the use of torture is justified in order to find out the truth or to save others or for national security purposes does not change torture into something else. Torture is torture, however, justified by social purposes or utilitarian moral arguments.

[86] Although, the Defendants produced cases that, from a defendant physician’s perspective, give a very large and generous interpretation to the protection provided by the Medical Act and the Health Disciplines Act, 1974, nevertheless, it is not plain and obvious that professional services includes torture.

(b) Section 10 (later s.9) of the Mental Hospitals Act and Section 58 of the Mental Health Act, 1967

[87] The limitation provisions in the Mental Hospitals Act and the Mental Health Act, 1967 also appear to be very broad in their scope and would bar any action, prosecution or other proceeding brought outside the 6-month limitation period against a hospital or a physician for any act or omission relating to the care and treatment of patients: Perez (Litigation Guardian of) v. Salvation Army (1998), 1998 7197 (ON CA), 42 O.R. (3d) 229 at p. 232 (C.A.); Benson v. Thompson, 2006 MBCA 28, at para. 21.

[88] The Defendants point out that with respect to the care and treatment of patients, the relevant statutory provisions grant broad powers to hospitals. They note that in the case at bar up until 1968: (a) s. 14 and s. 7(1) of the Mental Hospitals Act provided that the Superintendent of the institution had had “full control” over the care of every patient therein and stated that such patients could be “treated” only as was provided by the Act and the regulations; (b) s. 3 of the General Regulation, R.R.O. 1960, Reg. 416, s. 3 under the Mental Hospitals Act provided that the Superintendent was the “sole judge of the… treatment to be provided for any patient”; (c) s. 4(1) of the 1960 Special Units Regulation promulgated under the Mental Hospitals Act provided that a patient could be admitted for treatment in a special unit “on his own application or on the application of a medical practitioner”; and (d) under the Special Units Regulation, R.R.O. 1960, Reg. 418, s. 4(1), consent for treatment was only required for physical treatment, which was limited to electro shock therapy and insulin shock therapy.

[89] Similarly, after June 1, 1968: (a) s. 7(1) of the Mental Hospitals Act provided that the officer in charge of the institution had “control” over all patients therein; (b) s. 5(1) of the Application Regulation under the Mental Health Act, 1967 O. Reg. 53/68 required that the treatment of patients was to be under the “direction” of a psychiatrist; (c) s. 1(a) of the Mental Health Act, 1967 defined “attending physician” to mean the physician to whom “responsibility” for the treatment of patients had been assigned; (d) s. 26(1) of the Mental Health Act, 1967 provided that a patient shall be discharged when no longer in need of the “observation, care and treatment provided” in the psychiatric facility; and (e) the legislation did not require that involuntary patients consent to treatment, even though the term “consent” did appear in other contexts, such as the provision in the Mental Hospitals Act requiring the consent of the Public Trustee to the appointment of a committee to manage a patient’s estate[^1] and a regulation permitting disclosure of medical records upon a competent patient’s written consent.

[90] The Defendants thus have a strong argument, but the Plaintiffs’ counterargument is, once again, quite simple, but it too is quite powerful. The Plaintiffs submit that however comprehensive the statutory protection is meant to be, torture is not “any act or omission relating to the care and treatment of patients.”

[91] At this juncture, once again, it is not plain and obvious that torture can be an act relating to the treatment of patients.

D. CONCLUSION

[92] For the above reasons, I grant the Plaintiffs’ motion.

[93