Court File and Parties

COURT FILE NO.: 00-CV-199551 DATE: 20180625 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: REGINAL BARKER, JEAN-PAULBELEC, JOSEPH BONNER, WILLIAM BRENAN, GERALD HARRY CAIRNS, MAURICE DESROCHERS, EDDI ELKSMITH, DONALD EVERINGHAM, JOH FINLAYSON, ROBERT FROST, GARY L. GENEREAUX, TERRY GHETTI, BRUCE HAMILL, ELDON HARDY, WILLIAM HAWBOLDT, DANNY A. JOANISSE, RUSS JOHNSON, STANLEY KIERSTEAD, HENRY KOWALSI, DENIS LEPAGE, CHRSTIAN MAGE, DOUGLAS, MCCAUL WILLIAM A. MCDOUGALL, BRIANFLOYD MCINNES, ALLEN MCMANN, JAMES MOTHERALL, MARTIN OSTROWAKI, FREDERICK PHILP, MICHAEL ROGER PINET, EDWIN SEVELS, SAMUEL FREDERICK CHARLES SHEPHERD, MARC SINER, 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

BEFORE: E.M. Morgan J.

COUNSEL: Joel Rochon, Peter Jervis, and Golnaz Nayerahmadi, for the Plaintiffs William Black, for the Defendants, Elliot Thompson Barker and Gary J. Maier. Sara Blake, for the Defendant, Her Majesty the Queen in Right of Ontario

HEARD: June 22, 2018

TRIAL MANAGEMENT ENDORSEMENT

[1] On June 1, 2017, Justice Perell dismissed a motion for summary judgment brought by the Defendants on the grounds that the action is statute-barred or barred by the doctrine of laches, and granted partial summary judgment to the Plaintiffs for breach of fiduciary duty. At the same time, he ordered a trial or additional summary judgment motions to prove causation, harm, and damages.

[2] On March 30, 2018, the Court of Appeal varied that ruling: Barker v Barker, 2018 ONCA 255. It agreed that the Defendants had failed to show that there was no genuine issue requiring a trial on the limitation period and laches issues, but at the same time it found that the motion had proceeded in such a way as to deny the Defendants’ right to procedural fairness. Whereas the parties had been given a Direction going into the motion that the question of liability for breach of fiduciary duty was to be assumed for the purposes of the limitations/laches motion, the ruling ultimately made a determination of the fiduciary duty issue on its merits. In the result, the Court of Appeal vacated the partial summary judgment order and sent the matter back to this Court for a trial of all of the merits.

[3] The Court of Appeal did not, however, specify what procedures the Court should fashion for the trial. It specifically left the trial procedures for this Court to decide; thus, at para 26 of its reasons for judgment, it stated: “…the action is remitted for trial or summary trial as deemed appropriate to the Regional Senior Judge for the Assignment of a trial judge.”

[4] As directed by the Court of Appeal, the matter next came before the Regional Senior Judge on May 16, 2018. In his endorsement, Morawetz J. assigned me as trial judge and referred it to a trial management conference to determine next steps. Like the Court of Appeal, Morawetz J. did not pre-determine the procedures to be pursued at trial. He did, however, discuss the need to proceed without undue delay, indicating that, “All parties recognize that this proceeding should be expedited.”

[5] This case began its life in 2000 as a proposed class action. It relates to events that transpired between 1966 and 1983. In 2003, Cullity J. refused to certify the action under the Class Proceedings Act: Joanisse v Barker. Since that time it has proceeded as a joint claim by now 38 individual Plaintiffs arising from the same or interrelated incidents of alleged mistreatment of them by the same Defendants some 5 decades ago. It is by any measure a case whose prompt attention is called for.

[6] Counsel for the Plaintiffs submits that the trial should be bifurcated, with liability issues being tried first and, if the Plaintiffs are successful on liability, damages being tried at a later date. It is Plaintiffs’ counsels’ view that the trial on liability alone could be based primarily on affidavit evidence, with cross-examinations conducted where necessary, and would take about 3 weeks. They indicate that they are nearly ready to proceed to trial, and that the trial on liability could commence sometime in the spring of 2019.

[7] Counsel for the Defendants submits that the trial should not be bifurcated, and that liability and damages be tried together. It is Defendants’ counsels’ view that a full trial of all of the issues in this matter will take from 60 to 90 days. They indicate that the parties are nowhere near prepared for a full trial, which would require further expert reports and further discoveries. It is Defendants’ counsels’ position that the trial could not commence earlier than the fall of 2019; indeed, due to her existing trial schedule, counsel for the Ontario government has indicated that she would not be in a position to start trial until January 2020 or thereafter.

[8] Bifurcating the trial is not as simple as Plaintiffs’ counsel portrays it. I am not inclined to follow the route that my colleague followed in the summary judgment motion, and deal with the general question of fiduciary duties in the absence of other evidence. Once a trial commences dealing with liability issues, it will have to deal with the merits of all liability issues raised by the pleadings. That means a full canvassing of the issues raised by the Defendants in response to the claims put forward by the Plaintiffs.

[9] The Plaintiffs contend that the elements of the wrongful conduct alleged against the Defendant physicians are readily provable through published materials, public records, and medical records, and that the liability portion of the trial can thus be easily managed and contains relatively little individualized evidence relating to each Plaintiff. More specifically, they argue that the primary cause of action that they are putting forward is breach of fiduciary duty, and that does not require the kind of close causation analysis that a negligence claim requires. They also suggest that the consent to treatment issue may be the subject of a threshold determination on the question of law as to whether consent is even possible under circumstances in which the Plaintiffs found themselves.

[10] The Defendants, on the other hand, submit that the Plaintiffs are claiming negligence as their alternative ground of liability, and since the Plaintiffs have not dropped that claim the Defendants are entitled – indeed, they are compelled – to mount a defence to it, which includes individualized evidence of causation. Defendants’ counsel are also skeptical of whether consent can be treated as a threshold issue of law, since any determination of that issue will require a factual foundation that can only come from the Plaintiffs’ evidence. All of the issues going to liability, they contend, require expert evidence and individualized proof based on the particular experiences of each Plaintiff.

[11] This case has already been the subject of one Court of Appeal reversal on the grounds that a proceeding was structured in a way that was unfair to one of the parties. In its recent decision, the Court of Appeal varied the summary judgment ruling based on the fact that liability was determined even though the parties were prepared to argue a limitations motion premised on assumed liability; as such, the Defendants did not get a full opportunity to confront the case that was levelled against them: Barker, supra, at para 17. I do not want to structure the trial in a way which again has the potential to circumvent the Defendants’ chance to fully address the case by considering liability without the individualized evidence on which the causation defences are based.

[12] That said, the Plaintiffs are aging and deserve their day in court. The underlying events giving rise to the claims took place as far back as the 1960s. Several of the Plaintiffs have already passed away, and all of the remaining ones are elderly. Indeed, the same can be said of the Defendant physicians, and so much of the evidence necessary for this trial will be lost if it is not done soon. There is no argument that Morawetz J. was correct in stating that the trial must be put on an expedited footing.

[13] In addition, although I am cognizant of the need for the Defendants to present a full answer and defence to the claims, they cannot use that shield as a sword by making matters so complicated and lengthy as to undermine the very possibility of a trial. Accordingly, this trial will be conducted as a hybrid trial, partly on affidavit evidence and partly on viva voce evidence. The option to proceed in either way was specifically left open to me by the Court of Appeal, and a hybrid procedure will hopefully combine the most advantageous aspects of each. The aim is to expedite the trial by dispensing with live testimony where it is not necessary, without eliminating either side’s right to present all of its own evidence and fully test the opponent’s evidence.

[14] In proceeding in this way I am not fettering my discretion as trial judge to make rulings as the case goes on; but I do expect at the outset that each of the witnesses will provide an affidavit setting out what would be his or her evidence-in-chief. The extent to which each of those affiants will supplement their evidence with live testimony and the parameters of cross-examination will be determined at the trial itself. Likewise, the possibility of any threshold or mid-trial determinations of law will of necessity also be left to the trial itself.

[15] The trial will in the first instance be scheduled for 6 weeks. That is a middle ground between the Plaintiffs’ desire for a 3-week trial and the Defendants’ desire for an 8 to 12-week trial. I am confident that with careful management of the witnesses and live testimony only where necessary, a 6-week trial could well suffice to cover all issues of liability and all issues raised by the defences thereto.

[16] Defence counsel concede that there is no reason that the damages portion of the trial needs to be contiguous with the liability portion, so defined. That is, the expert and other evidence that may be needed to put an actual dollar value on the Defendants’ liability, if there is determined to be some liability, can be put off to a later time.

[17] Plaintiffs’ counsel has suggested that any determination of quantum might be the subject of an eventual reference to a Master for determination. I am not sure whether that will be appropriate, but in any case the specific procedures for the damages portion of the trial can be determined further down the road.

[18] The goal for now is to ensure that the main part of the trial – i.e. the liability portion that considers all of the Plaintiffs’ claims and all of the Defendants’ defences – is fashioned in a way that is both expeditious and procedurally fair. I am of the view that the hybrid trial on affidavit evidence and, hopefully, limited and only necessary viva voce examination and cross-examination of the affiants, will accomplish that goal.

[19] The most difficult question here is when to schedule the trial. Counsel for the Plaintiffs want to expedite the matter as much as possible, but at the same time they do no want to be caught starting a trial when they are less than fully prepared. Plaintiffs’ counsel can schedule a 6-week trial in the latter half of the spring of 2019, after another trial in which they are involved ends in mid-April. Counsel for Ontario is also able to work with that schedule.

[20] Counsel for the two individual Defendants is unable to do so, and would like to move it to the fall of 2019. However, Plaintiffs’ counsel are involved in a lengthy trial in the fall and so would not be in a position to schedule anything from September onward. I therefore will schedule this 6-week trial in May-June 2019.

[21] As stated, I am aware that this schedule creates difficulties for counsel for the individual Defendants. He has indicated that he has had to come up to speed on this case over the past year when a retiring partner in his law firm handed off the file to him, and that he has numerous court bookings for the spring of 2019 that he simply cannot set aside. That is indeed unfortunate. However, it seems to me that this case has been so long in arriving at trial, and so beset with procedural hurdles, that it demands a firm approach to scheduling if it is ever going to be done at all.

[22] In civil litigation, trial dates are often moving targets. Matters settle, or encounter unforeseen complexities, and dates are lost. I do not know what will happen with the other matters that Defendants’ counsel has in the pipeline. In any case, I will leave it to the individual Defendants and their lawyer and, perhaps, his colleagues at his law firm, to work out how to manage with the present schedule.

[23] The trial will begin on Monday, April 29, 2019. If it goes the full 6 weeks, the liability portion of the trial will end on Friday, June 7, 2019.

[24] I remain available to be spoken to with respect to trial management issues during the course of the next 10 months leading up to trial.

Morgan J. Date: June 25, 2018