COURT FILE NO.: 00-CV-199551

DATE: 20190404

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 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, Peter Jervis, and Golnaz Nayerahmadi, for the Plaintiffs

Bill Black and Sam Rogers, for the Defendants, Elliot Thompson Barker and Gary J. Maier.

Sara Blake, for the Defendant, Her Majesty the Queen in Right of Ontario

HEARD: April 4, 2019

PRE-TRIAL Conference

[1] The six-week trial of this action is scheduled to start on April 29, 2019.

[2] Counsel for the Plaintiff advises that they are working on a Request to Admit containing a lengthy recitation of what they characterize as uncontentious facts. Counsel for the Defendants is optimistic that this may form the basis of an Agreed Statement of Facts. Counsel are also working on an agreed upon Documents Brief so that documentary evidence does not have to be admitted one document at a time.

[3] All of that is to be encouraged, especially since there are a large number of proposed witnesses for this trial and a relatively compressed time within which it will be conducted. This action is old and I do not want to delay the trial by having to adjourn after six weeks without having finished the evidence at least going to the liability portion of the trial. Counsel have expressed hope that most of the evidence going to damages will be done in affidavit form with only brief viva voce evidence and cross-examinations.

[4] I note that Plaintiffs' counsel is preparing affidavits for each of the Plaintiffs addressing the issues going to liability, including causation. The affidavits will replace the need for lengthy examinations in chief in the upcoming trial, and will also form an efficient way to collect the documents, including medical records, relevant to each Plaintiff. Defendants' counsel will have an opportunity to cross-examine each witness. The time allotted for each Plaintiff will of necessity be limited to 2.5 hours, most of which will be for cross-examination. That will allow two (and possibly three) Plaintiffs to testify each day, which should be sufficient to allow the trial to proceed on schedule.

[5] I understand that each of the Plaintiffs has been examined for discovery and that there are discovery transcripts available. Plaintiffs' counsel suggests that each transcript be submitted into evidence as a way of shortening cross-examinations. I am not inclined to adopt that approach. Defendants' counsel can use the discovery transcripts in the usual way – i.e to impeach if appropriate, or to read into the record specific portions. Discoveries are conducted with a view to different ends than cross-examinations, and typically do not effectively take the place of cross-examinations. I do not see the advantage of having to read through thousands of pages of potentially irrelevant and certainly repetitive examinations for discovery.

[6] Counsel for the Plaintiffs propose that both sides submit their respective expert reports as evidence, and that I be given a copy of all of the reports in advance of trial. Counsel for Ontario objects to this, explaining that at least some of the expert reports give not just opinions but interpretations of the Plaintiffs' testimony that is contentious. She submits that under these circumstances it is important that I hear the Plaintiffs testify before being influenced the experts' 'spin' on their testimony.

[7] Without commenting on what the expert witnesses do or do not say in their reports (I have not received them yet), Ontario's counsel makes a valid point. I have no objection to shortening the trial time for the experts by having their reports constitute the bulk of their testimony-in-chief, but I would like to receive and read the expert reports and hear the experts testify in their sequence at trial as described by Plaintiffs' counsel – i.e. after hearing the Plaintiffs testify. Ontario's counsel states, and I agree, that I should not be given the experts' gloss on the Plaintiffs' evidence before even hearing the Plaintiffs' evidence first hand.

[8] If Plaintiffs' counsel wishes to include in their opening a summary of the expert opinion evidence along with all of the other expected evidence that is fine with me, but this should be brief and should really be in summary form. In general, the opening is only for counsel to set the stage, but as trier of fact I focus on the actual evidence and not counsel's advance summary of it.

[9] All counsel have indicated that they intend to produce thorough written submissions at the end of the trial. I encourage that. Although the schedule for oral argument has not yet been set, I would anticipate that there will be a short hiatus between the end of the evidence and the days set for final submissions. That should allow counsel time to incorporate the evidence adduced at trial into their written submissions.

Morgan J.

Date: April 4, 2019