Court File and Parties

COURT FILE NO.: 00-CV-199551 DATE: 20190228 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: REGINALD BARKER, JEAN-PAUL BELEC, ERIC BETHUNE (formerly Jean-Jacque Berthiaume), JOSEPH BONNER, WILLIAM BRENNAN, STEPHEN CARSON, ROY DALE, MAURICE DESROCHERS by the Estate Trustee LORRAINE DESROCHERS, DONALD EVERINGHAM, JOHN FINLAYSON, ROBERT FROST, TERRY GHETTI, ROBERT HABERLE, BRUCE HAMILL, ELDON HARDY, WILLIAM HAWBOLDT, 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, MICHAEL ROGER PINET, EDWIN SEVELS, SAMUEL FREDERICK CHARLES SHEPHERD, [MARC SINER], and SHAUNA TAYLOR (formerly Vance H. Egglestone), 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 and Golnaz Nayerahmadi, for the Plaintiffs Meghan Bridges, for the Defendants, Elliot Thompson Barker and Gary J. Maier. Ann Christian-Brown and Sara Blake, for the Defendant, Her Majesty the Queen in Right of Ontario

HEARD: February 27, 2019

ENDORSEMENT

[1] Beneath the innocuous packaging of a routine procedural motion brought here by the government of Ontario lurks a question that demands a substantive response: are the Rules of Civil Procedure designed to facilitate litigation or to impede it?

[2] The Defendant, The Queen in Right of Ontario (the “Crown”), brings what I can only describe as an ill-conceived motion to compel answers to undertakings and refusals on the eve of trial. In order to understand the problem with this motion, a short recitation of background is necessary.

[3] The action arises from what Plaintiffs’ counsel characterizes as “scientifically meritless, degrading and inhumane experimentation and torture inflicted on vulnerable and psychiatrically impaired individuals in the name of ‘treatment’, while they were detained at the Oak Ridge Division of the Penetanguishene Mental Hospital from 1963 to 1985.” The Plaintiffs claim that in the course of their detention and ‘treatment’ – the description of which includes being force to live naked in close proximity to each other in a small, unfurnished “capsule” for months on end while being given experimental drugs – they endured severe psychiatric harm.

[4] The Plaintiffs go on to claim that this and other such treatments prevented or delayed their rehabilitation, induced violent recidivism, reduced or eliminated their capacity to earn income and live a stable life. The causes of action include breach of fiduciary duty, negligence, battery, and breach of the common law and customary international law norms prohibiting torture.

[5] The action was commenced in 2000 as a putative class action. In June 2017, Perell J. granted partial summary judgment. That ruling was reversed by the Court of Appeal on March 30, 2018: Barker v Barker, 2018 ONCA 255. The Court ordered a trial on all issues and remitted the matter back to the Regional Senior Judge for the assignment of a trial judge, who, on May 6, 2018, assigned it to me. It has now been reconstituted as a multi-plaintiff action rather than a class action, and has come to me with a direction from the RSJ that, “All parties recognize that this proceeding should be expedited.” Given the nature of the claim and the age of the events, the parties, and now even the action, that statement is to be taken seriously.

[6] After some difficulty accommodating all counsel, the matter has been scheduled for a 6-week trial commencing April 29, 2019. The discovery process has been going on for years. All of the Plaintiffs have been examined, some multiple times, and voluminous records, including medical records, criminal records, etc., have been exchanged. The last of the now elderly Plaintiffs was examined in Jamaica pursuant to my order this past month. Given the age and state of mental health of many of the Plaintiffs, counsel for the Plaintiffs have gone to substantial effort in producing what they can from the Plaintiffs and authorizing the release of records to the Crown where such authorization is necessary.

[7] The Crown now brings this motion to compel the Plaintiffs to answer outstanding refusals and undertakings, and, if necessary, to re-attend for further examination. Counsel for the Plaintiffs submits that the Plaintiffs have done everything in their power – keeping in mind their health limitations – to produce everything they are capable of producing and answer every question they are capable of answering. Counsel for the Crown submits that there are numerous questions still to be answered and documentation to be produced, and submits that the Rules of Civil Procedure permit it to follow up on all potentially relevant information.

[8] As indicated at the outset, it is my view that the Crown’s motion has not been well thought through. One series of requests made by Crown counsel to one of the Plaintiffs – Bruce Hamill – will suffice to illustrate the point. Mr. Hamill was charged with murder in 1971 and again in 1990. He was found Not Criminally Responsible in both trials. His case is said by Plaintiffs’ counsel to exemplify the violent recidivism experienced by many of the Plaintiffs.

[9] Mr. Hamill was examined for discovery. Plaintiffs’ counsel says that it was a difficult experience, as it apparently was for a number of the Plaintiffs. Counsel describes Mr. Hamill as suffering from severe mental health issues, to the extent that he is unstable and finds it almost impossible to speak about what transpired during the relevant times of his life. He has, however, released all of his medical records, including his psychiatric records which contain the notes and records of interviews his psychiatrist conducted with him over the years. Plaintiffs’ counsel submits that this amounts to full disclosure of Mr. Hamill’s case, and that the medical records, combined with the records that the Crown already has of Mr. Hamill’s time at Oak Ridge, provide Crown counsel with everything they could possibly need to defend against Mr. Hamill’s claim.

[10] This disclosure is, however, not good enough for the Crown. Crown counsel wants an explanation directly from Mr. Hamill as to what he was thinking at the time he killed the two individuals. That is, having been found to have committed the violent acts while in such a severe disabled state that he could not perceive reality and cannot be held criminally responsible, the Crown nevertheless thought it helpful to ask him what was on his mind when he dissociated from reality.

[11] Plaintiffs’ counsel understandably refused the question. They explained that to set Mr. Hamill’s mind back to those incidents would likely induce a paranoiac response and would force him re-live the mental health crisis that he was in when he committed the violent acts. This, too, was not enough for the Crown, and they have now moved for Mr. Hamill to re-attend and to re-live the events together with them. As the Crown would have it, they need “disclosure” directly from him despite his evident incapacity to provide the information directly.

[12] At the hearing, I asked counsel for the Crown what she hoped to accomplish by having Mr. Hamill re-attend to answer the unanswerable – that is, to re-attend in order to explain what he was thinking while in a state of mental breakdown that prevented him from knowing what he was thinking. I indicated that it seemed to me that having the psychiatric records would give them all of the information that was possible to obtain regarding Mr. Hamill’s state of mind. Crown counsel responded by again citing the Rules of Civil Procedure and explaining that is entitled to the “best evidence”. She submitted that the psychiatrist is second-hand evidence while Mr. Hamill himself would be first-hand evidence and therefore the “best evidence”.

[13] With the greatest of respect to counsel who is obviously trying to do a thorough job in a difficult case, that is not the way to think about the discovery process. The Rules of Civil Procedure are designed to facilitate getting the parties to a fair trial. They are not designed to be an impediment to getting the parties to trial. Proportionality and, frankly, common sense, must provide some guide. The Rules ought not be recited by rote and implemented in unflinchingly literalist fashion; and a party ought not use the Rules to compel a person suffering serious mental illness to re-attend on multiple occasions to be put through an insufferable and predictably unproductive ordeal just because on a literal reading the Rules might allow a re-attendance.

[14] After decades of struggle, this case appears to me to be ready for trial in two months’ time. I understand that the Defendants’ need to defend the claim with all of the evidence that they can gather, but they cannot use more and more discovery to prolong the pre-trial stage any further. They will not ‘discover’ anything useful from Mr. Hamill if he has to re-attend to answer more questions that he cannot answer and that will only cause him anguish. Why they thought they should try is beyond me.

[15] As I said, Mr. Hamill is but one example. The Crown produced a weighty, 3-volume Motion Record containing dozens and dozens of supposedly unanswered questions from a number of he Plaintiffs. It turns out that none of these questions or supposedly missing information actually requires a motion at all if matters had been thought through a little more sensibly.

[16] Another example of a question that need not, or cannot be answered, is provided by a production request made by the Crown to the Plaintiff, Reginald Barker. Like many of the other Plaintiffs, Mr. Barker is claiming that the treatment he received at Oak Ridge is connected with his later violence and criminality. The Crown seeks not only Mr. Barker’s criminal records, but the records from his criminal trials, including the exhibits and pre-sentence reports filed therein.

[17] Plaintiffs’ counsel has made good faith efforts to secure the court documents in Mr. Barker’s various cases, but so far they have not been able to do so. Apparently, many of the documents are old and are archived in a way that makes them difficult to retrieve. Crown counsel indicates that it may require a court order in order to have the court files released from the archives.

[18] Plaintiffs’ counsel has indicated that it will consent to the release of the court files but that the Crown itself must arrange for the court order and retrieval of those files. That was not good enough for the Crown. In order to abandon their motion with respect to Mr. Barker, the Crown insisted on Plaintiffs’ counsel consenting to having Mr. Barker re-called at trial in the event that the files they seek arrive after Mr. Barker’s testimony is complete.

[19] I pointed out to counsel at the hearing that neither party can decide to re-call a witness at trial; they an only ask to do so. It is for the trial judge to make that decision, and it is not a decision that a judge can make at this stage before seeing the trial unfold. To ask for Plaintiffs’ counsel to consent to something that neither party can consent to is to ask for nothing.

[20] Moreover, I do not understand why the Crown needs the Plaintiff’s consent or cooperation at all to search a court file. We have a policy of open courts. It may be logistically difficult to obtain old, archived records and exhibits, but anyone, including a non-party like the press, can search a court file, or seek a court order, to obtain documents that were filed as exhibit at trial: see Toronto Star v Ontario (Attorney General), 2018 ONSC 2586.

[21] In Kochar v Kochar, 2015 ONSC 6650, the Court indicated that while relevance is the guide to whether a document or other evidence must be produced, not all relevant information will be the subject to a production order. The party seeking production must at the very least show that it would be unfair to them not to issue the order. If they can fairly obtain the evidence on their own, or if the opposing party has acted in good faith to obtain it, an order may not be warranted:

Merely proving the relevance of a document may be insufficient to warrant production. To order production the court must be satisfied that it would be "unfair" to the party seeking production to go on with the case without the document or information. In essence the document must be found to be important to a party's case, especially in relation to the amount at stake.

Sidhu v Toor, 2018 ONSC 4874, at para 14, quoting Kochar, at para 4.

[22] I do not know why the Crown has not on its own obtained the court records it seeks. I likewise do not understand why at this late date they are asking for further responses from the Plaintiff when they have all that they need from the Plaintiff – with the exception, of course, of a commitment by Plaintiffs’ counsel that Mr. Barker can be re-called mid-trial, which is a commitment that Plaintiffs’ counsel is not and never has been in a position to give.

[23] Besides Mr. Barker, several other Plaintiffs have made claims based on their having re-offended after their release. The Crown seeks a similar set of court records for all of them. Specifically, the Crown moves with respect to the court records of post-Oak Ridge trials of the Plaintiffs William Brennan, John Finlayson (including records from Burwash correctional Centre), Stanley Kierstead, Bruce Hamill, Leeford Miller, and Edwin Sevels.

[24] The same answer applies to all of these requests as applies to the request made of Mr. Barker. The Plaintiffs, through their counsel, have requested the relevant or sought-for court records, and have not heard back from the court (or, in Mr. Kierstead’s case, have heard that the records no longer exist). There is nothing for me to order here. If Crown counsel is not content to wait for a response from the court, it can bring a motion on its own to obtain those records. As I mentioned to counsel for the Crown at the hearing, I do not know which court has jurisdiction over such a motion. That is for Crown counsel to research and determine if they decide to pursue a court order for production of exhibits from the archives.

[25] Several other Plaintiffs have been requested to produce medical records sought by the Crown. These include the Plaintiffs Donald Everingham and Terry Ghetti. Mr. Ghetti’s records include those from Waypoint Mental Health Centre from 2013 to date. Plaintiffs’ counsel advises that the relevant medical records have been requested by them and they are waiting for a response. There is little more they can do at this point.

[26] The Crown has also moved for the Plaintiff Shauna Taylor to produce her diaries from relevant years. Apparently, Ms. Taylor was a constant diary keeper, but does not have possession of the diaries herself. The Crown seeks diaries that are held by Ms. Taylor’s former lawyer, Marshall Swadron, dating from 2012 and that chronical an OPSEU strike that she experienced while in jail and that took place at the time. The Crown also seeks diaries that Ms. Taylor wrote in the 1970s and/or 1980s that she thinks may be held by another of her former lawyers, James Lunnie.

[27] Plaintiffs’ counsel has explained that the diaries from 2012 are literally hour by hour chronicles of events that are not in issue in this litigation. They apparently do not contain Ms. Taylor’s thoughts or other entries that may reveal her thought patterns. I asked Crown counsel what the relevance of this diary is, since it was made some 45 years after the events in issue here. Her response was that one never knows what might be in a diary, and the Crown would like an opportunity to look and see if anything relevant was recorded there.

[28] Needless to say, Crown counsel’s response to my question is the very embodiment of a ‘fishing expedition’. A party cannot obtain an order for production on the ground that it simply wants to look at a facially irrelevant document to make sure that there is nothing in it that they can use. “Discovery is not a ‘free-for-all’ or a fishing expedition. It is not an opportunity for counsel to…ask any and all questions in the hope of stumbling upon something that will help his or her client”: Yim v Song, 2015 ONSC 7605, at para 27.

[29] As for the diaries that Ms. Taylor thinks might be held by Mr. Lunnie, Plaintiffs’ counsel has confirmed that they have no objection to providing an authorization to the Crown allowing the Crown to turn to Mr. Lunnie themselves to acquire what they seek. As Mr. Lunnie is now elderly and retired it is not clear that he will still have Ms. Taylor’s 40-year old diaries; however, Plaintiffs’ counsel has no objection to the Crown making the request and it will support that request with whatever authorization is appropriate. As Plaintiffs’ counsel pointed out at the hearing, in the event that Mr. Lunnie does have some of Ms. Taylor’s old diaries, they will have to be reviewed and possibly redacted by the Plaintiffs for privilege and patient confidentiality before being turned over to the Crown.

[30] Despite the large number of undertakings and refusals that formed the subject matter of this motion, there is really nothing for me to order. Plaintiffs’ counsel have been cooperative in the discovery process. They have produced, or made best efforts to produce, everything relevant that they have the power to produce. I would expect that this cooperative effort will continue until trial.

[31] Many of the Crown’s questions are unanswerable. Including them in a motion like this can only prolong the litigation without adding to the fairness of the process or the merits of the action. I do not know whether this was a strategy or simply a lack of clear thinking about the substance of the matters being moved on, but the overall effect of the motion was to put the Plaintiffs to a substantial amount of work in addressing all of the Crown’s concerns but to produce no further evidence in aid of the trial.

[32] The Crown’s motion is dismissed.

[33] The Plaintiffs deserve their costs. Plaintiffs’ counsel have produced a Bill of Costs in which they seek $30,000 on a partial indemnity scale and $59,690 on a substantial indemnity scale. These figures are high for an undertakings and refusals motion; indeed, the Crown’s Bill of Costs comes in at just over $4,000.

[34] Plaintiffs’ counsel says that, firstly, reviewing and re-reviewing matters with their clients is a particularly arduous task. I can only imagine. Secondly, they explain that in responding to the Crown’s many requests, the Plaintiffs had to comb through many volumes of transcripts and prior productions in order to ascertain what documentation and information had already been given to the Crown and when. They have directed me to correspondence in the record that highlights the fact that Crown counsel made repeated requests for materials that had long ago been produced by the Plaintiffs but that Crown counsel did not realize had been misplaced or misfiled within the Crown’s office. I therefore understand why the Plaintiffs’ bill is as high as it is.

[35] I also understand why Plaintiffs’ counsel has made a strong pitch for substantial indemnity costs. Rule 57.01(1)(e) of the Rules of Civil Procedure directs me to take account in assessing costs of “the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding”. As far as I can tell, virtually everything the Crown did in this motion lengthened it more than necessary since it was not necessary at all. To ask to recall individuals in order to further examine them on what, exactly, they were thinking while in a state of mental health crisis and were dissociated from their own thoughts and reality is to bring a motion for the mere sake of bringing a motion.

[36] Having said that, some of what Plaintiffs’ counsel did in responding to this motion will doubtless be helpful to them at trial. It will therefore not go entirely to waste. I will exercise my discretion under section 131 of the Courts of Justice Act to award the Plaintiffs roughly half of what they seek in substantial indemnity costs.

[37] The Crown shall forthwith pay the Plaintiffs $30,000 in costs of this motion, inclusive of all fees, disbursements, and HST.

Morgan J. Date: February 28, 2019