Court File and Parties

COURT FILE NO.: 00-CV-199551 DATE: 20190524

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: REGINALD BARKER, JEAN-PAUL BELEC, ERIC BETHUNE (formerly Jean-Jacque Berthiaume), JOSEPH BONNER, WILLIAM BRENNAN by the Estate Trustee MAXWELL BRENNAN, STEPHEN CARSON, ROY DALE, MAURICE DESROCHERS by the Estate Trustee LORRAINE DESROCHERS, DONALD EVERINGHAM, JOHN FINLAYSON, ROBERT FROST, TERRY GHETTI, BRUCE HAMILL, ELDON HARDY, WILLIAM HAWBOLDT by the Estate Trustee BARBARA BROCKLEY, DANNY A. JOANISSE, RUSS JOHNSON, STANLEY KIERSTEAD, DENIS LEPAGE, CHRISTIAN MAGEE, DOUGLAS McCAUL, BRIAN FLOYD McINNES, ALLEN McMANN, LEEFORD MILLER, JAMES MOTHERALL by the Estate Trustees DEBORAH KAREN MOROZ and JANE ALEXIS MARION, 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 William Black, Sam Rogers, and Meghan Bridges, for the Defendants, Elliot Thompson Barker and Gary J. Maier Sara Blake, Meagan Williams, and Ann Christian-Brown, for the Defendant, Her Majesty the Queen in Right of Ontario

HEARD: May 21, 2019

ADMISSIBILITY OF REPLY EXPERT REPORTS

[1] The Defendants bring a mid-trial motion in the form of a voir dire to determine the admissibility of the expert reports of Prof. Shane O’Mara and Dr. Stephen Xenakis. These reports were served by the Plaintiffs as Reply reports literally the weekend before the opening of trial. Defendants’ counsel submit that the reports were simply too late for them to respond to or to absorb for cross-examination at trial.

[2] Defendants’ counsel emphasize that this is especially unfair considering that this is a twenty year old action that has been through extensive discoveries, a class action certification motion, a summary judgment motion, and a trial management process in which I met with all counsel a year ago and set out a schedule to be followed to trial. The Plaintiffs missed the deadline I had set for Reply reports.

[3] Plaintiffs’ counsel respond by explaining that they were late serving the Reports because of matters beyond their control. They had planned to serve a Supplementary report of their first expert, Dr. John Bradford, in December 2018, but Dr. Bradford had health problems and was not able to finish his Supplementary report until the second week in January 2019. That, in turn, pushed the Defendants’ Responding expert reports back by a month, which left the Plaintiffs precious little time for Reply reports. Plaintiffs’ counsel state that they made herculean efforts to get these Reply reports, as they had to recruit two new experts to add to their existing two experts (who have produced Reply reports as well which are not challenged by the Defendants).

[4] Defendants’ counsel reply that they, too, made great efforts to produce their Responding reports, especially considering that there are 28 individual Plaintiffs whose medical conditions are covered in the Plaintiffs’ reports to which their experts had to respond in short order. Plaintiffs’ counsel comes back at this and points out that while the Plaintiffs were two weeks late with their Supplementary expert reports, the Defendants were four weeks late with their Responding reports. Defendants’ counsel retorts that Plaintiffs’ tardiness pushed them into the very weeks in March-April of this year that they needed to devote to trial preparation and so they had to work all-out doing both tasks at once. Plaintiffs’ counsel counters that the two weeks that Dr. Bradford was delayed included the week between Christmas and New Years when Defendants’ counsel and experts were any case unlikely to be working.

[5] Defendants’ counsel jabs at the Plaintiffs by observing that the late served Reply reports amount to over 60 pages of dense medical evidence with voluminous references to medical and other literature. Plaintiffs’ counsel parries back at the Defendants by noting that the Defendants have served 8 separate expert reports to which they had to reply. Defendants’ counsel then bobs, Plaintiffs’ counsel then weaves, and… Well, you get the picture.

[6] Despite all of the accusations of lateness, none of the counsel are doing anything like a slow or lazy job on this case; quite the contrary. The three parties all have counsel who are obviously very devoted to the case and have been working flat out to ensure that everything is prepared and in place for this rather intense trial. The issue here is not with the lawyering or with who was later than who.

[7] As I see it, the important issue is with the content of the Reply reports. Defendants’ counsel submit that the reports of Prof. O’Mara and Dr. Xenakis offend the rule against case splitting. Strathy J. (as he then was) observed in Schick v Boehringer, 2011 ONSC 63, para 15, that it is impermissible to split the case “either by using reply to introduce new evidence that could or should have been made as part of the case in chief or by simply reasserting the merits of his/her case.” A plaintiff must ensure that “it is known from the outset what must be met in response”: R v Krause, [1986] 2 SCR 466, 473-4.

[8] The Court has discretion to admit evidence late that is given solely in response to the evidence of other experts in the trial. That said, courts will typically not permit an expert to present “fresh evidence masquerading as a response to the expert report of another party”: Schram v Osten, 2004 BCSC 1788, para 9. The timing of expert reports is particularly important in cases of professional negligence which rely heavily on opinions of experts retained by the parties: Peller v Ogilvie-Harris: 2018 ONSC 725, paras 18.

[9] In Lockridge v Director, Ministry of the Environment, 2013 ONSC 6935, para 31, Harvison Young J. (as she then was) elaborated on the general principles that underlie the admissibility of a new or late served expert report:

The court will consider the potential prejudice and unfair surprise to the respondents; whether the evidence is responsive to the respondents’ case or is merely confirmatory; whether the evidence will assist the court in making its determination on the merits; whether the evidence was available and/or could not have been anticipated as being relevant at the time the application was filed; and the applicants’ reasons for their delay in adducing the evidence.

[10] Plaintiffs’ counsel submit that the key principle to be applied here is “whether the evidence will assist the court”. They say, in effect, the more the better, and if the Defendants need further adjournments to now produce Sur-reply reports to respond to the Reply reports, so be it. Their view is that whatever helps the court should be allowed in, in whatever order and whatever dates the material appears. They also argue that this is a hybrid trial, with some of the evidence going in by affidavit and the rest going in viva voce, and that by analogy to summary judgment motions any evidence can be served right up to the start of cross-examinations.

[11] I do not think that this analogy applies. While it is true that some of the Plaintiffs’ evidence-in-chief is in affidavit form, every Plaintiff is testifying in person and being cross-examined in person. As Master McLeod pointed out in Friends of Lansdowne v Ottawa, 2011 ONSC 1015, paras. 55-56, when a case management order sets out the timing and order for each side’s affidavits, “the parties are intended to proceed in a manner similar to a trial. As such, reply evidence should be limited to proper reply.”

[12] That is the case here, especially since, as I noted in my Case Conference Endorsement of June 26, 2018, the matter came to me with a direction from Morawetz, RSJ stating that, “All parties recognize that this proceeding should be expedited.” As explained in my June 26th endorsement, the action had been remitted by the Court of Appeal “for trial or summary trial as deemed appropriate to the Regional Senior Judge for the Assignment of a trial judge”: Barker v Barker, 2018 ONSC 3998, para 3, quoting Barker v Barker, 2018 ONCA 255, para 26. Justice Morawetz left it to me to fashion whatever procedures I deemed appropriate to accomplish an expedited, but procedurally fair trial.

[13] The action was commenced in 2000 and relates to incidents that occurred in the 1960’s and 1970’s. In the meantime, Plaintiffs and Defendants have died or become too frail to testify. It is important to ensure that the trial not be delayed any longer.

[14] Master McLeod’s admonishment about Reply evidence not only addresses the timing of such evidence, but the content. He states that, “it should respond to evidence raised by the other party and it should not be evidence that ought to have been submitted in the first place”: Friends of Lansdowne, para 56. The replying party can only offer evidence that it could not have anticipated as being relevant when it presented its case in chief: Krause, 474. But, “[e]vidence which is simply a rebuttal of evidence led as part of the defence case and which could have been led in chief is not to be admitted”: Halford v Seed Hawk Inc., 2003 FCT 141, para 15 (Fed Ct).

[15] The two Reply affidavits in issue address a number of topics, but for present purposes their importance is in respect of the issues of causation and standard of care. Professor Shane O’Mara, a neuro scientist from Trinity College, University of Dublin, specifically responds to the challenges to causation of harm raised by Defendants’ experts.

[16] Several of the Defendants’ experts talk about the impact of a stressful environment such as that induced by the programs created by the Defendant doctors in which the Plaintiffs participated. For example, Professor Jonathan Freedman, former Chair of the Department of Psychology at University of Toronto, opines that the “capsule”, an isolated pod created at Oak Ridge in which many of the psychoactive drug sessions took place, was not a form of sensory deprivation that would induce a stressful reaction and that this is therefore not a cause of injury.

[17] Dr. Brad Booth of the Royal Ottawa Hospital takes this one step further. He opines that the character of the Plaintiffs and their underlying psychiatric issues makes them virtually immune from stress-induced harm. He observes, at p. 15 of his Report, that, individuals such as the Plaintiffs with diagnoses of psychopathy “are generally thought to have emotional and empathy deficits…[and this] might bring some protection against the psychological stress of the Oak Ridge program as some psychopaths appear less likely to develop depression and anxiety disorders.”

[18] Counsel for the Plaintiffs state that they had no way of knowing that causation was an issue, or that the Defendants would be taking the position that stress-induced harm could not have been caused by the programs which the Plaintiffs encountered at Oak Ridge in the 1960’s and 1970’s. They also say that they were taken by surprise at the opinions offered by Defendants’ experts that pre-existing abuse and psychopathy could negate the impact of subsequent harm. For this reason, they have produced Prof. O’Mara in reply. As a neuro scientist, Prof. O’Mara has opined on the physiological impact of these kinds of stressors on the brain, in particular with respect to persons diagnosed as psychotic.

[19] With respect, I am rather surprised to hear that Plaintiffs’ counsel were taken by surprise. My very first introduction to this case was the case conference of June 2018. I was given a brief introduction to the issues at that time, and was made aware that the Defendants’ position was that due to the individual hardships suffered by the Plaintiffs prior to their time at Oak Ridge, the Defendants could not have caused the harm that the Plaintiffs allege they caused. In para 9 of my endorsement of June 25, 2018, I stated that, “The Defendants, on the other hand, raise defences based, inter alia, on causation. These issues, they contend, require extensive expert evidence and individualized proof based on the particular experiences of each Plaintiff.”

[20] If I am not surprised by the positions expressed by Defendants’ experts after only a brief introduction to the case, I do not see how Plaintiffs’ counsel could have been surprised after 20 years’ of dealing with the case. The Defendants’ experts’ evidence on causation, pre-existing conditions and mental health issues, and the impact of stress, were eminently foreseeable and should have been addressed in the Plaintiffs’ expert reports without waiting for Reply reports.

[21] In fact, these issues were addressed by the Plaintiffs’ initial experts. Dr. Bradford, a psychiatrist formerly at the Provincial Forensic Division, Waypoint Centre for Mental Health Care (formerly Oak Ridge) in Penetanguishene, Ontario, devotes a substantial portion of his expert reports to these issues. At p. 26 of his initial report, Dr. Bradford concludes with respect to causation: “the treatment program actually made patients worse by increasing the rates of violent recidivism for individuals who participated in the treatment.” He then goes on to specify that, “This experimental treatment program had an impact on lives of these individuals (the Plaintiffs) including an increase in duration of incarceration as a result of violent recidivism caused by the experimental treatment program. This does not exclude other impacts such as chromosome abnormalities, ongoing psychiatric problems, the possibility of PTSD, and other psychiatric consequences.”

[22] Dr. Bradford’s analysis of the causation issues is even more extensive in his Reply report which, as indicated, is not challenged by the Defendants as being delivered too late. In para 66 of his Reply report, Dr. Bradford states, “I disagree with the opinions of the Defendants’ experts that the programs did not cause the Plaintiffs significant long-term psychiatric or other harm.” He then goes on to elaborate and particularize his disagreements for nearly 20 paragraphs. The Plaintiffs will not be left with expert evidence that is unanswered if Prof. O’Mara’s evidence is excluded from the record.

[23] Prof. O’Mara addresses the same issues from the perspective of neuro science that Dr. Bradford addresses from the perspective of psychiatry. None of the Defendants’ experts addressed the issues from a neuro science point of view. Prof. O’Mara’s report constitutes new evidence which could have, and should have, been introduced earlier with Dr. Bradford’s initial report. “It is well settled that…the party beginning must exhaust his evidence in the first instance and may not split his case by first relying on prima facie proof, and when this has been shaken by his adversary, adducing confirmatory evidence”: Allcock Laight & Westwood Ltd. v Patten, Bernard and Dynamic Displays Ltd., [1967] 1 OR 18, 21 (Ont CA).

[24] As for the evidence of Dr. Xenakis, that too could have been adduced by the Plaintiffs up front. In fact, after an extensive description of what he has read about the Oak Ridge programs, the second half of Dr. Xenakis’ report is addressed to issues raised in this action by the Plaintiffs, in reality, only by the Plaintiffs.

[25] Dr. Xenakis is a retired United States Army Brigadier General, a former Assistant Inspector General for the Surgeon General of the Army, and a practicing psychiatrist and neurologist. After an extensive description of what he has read about Oak Ridge, Dr. Xenakis’ report makes the observation that, “The [Oak Ridge-like] techniques and practices of torture and cruel, inhumane, and degrading treatment have been memorialized over the years in multiple manuals and protocols including the infamous KUBARK Counterintelligence Interrogation Manual published by the Central Intelligence Agency (CIA) in 1963. He then goes on for nearly 18 paragraphs detailing the development of these military interrogation/torture techniques in the Second World War, the Korean War, and the Cold War, and discusses the international humanitarian law and medical ethics norms relevant to these developments. The analysis also includes a comparison of the treatment given to the Plaintiffs at Oak Ridge with CIA-backed techniques used on prisoners in the U.S. military prison in Guantanamo Bay.

[26] This evidence is proffered by the Plaintiffs in response to several of the Defendants’ experts who hold the view that the programs implemented by the Defendant doctors in the 1960’s and 1970’s was not harmful and met the ethical standards of the day. Most prominently, Professor Stephen Hucker, a professor of Psychiatry at University of Toronto, opines that the impugned programs at Oak Ridge met the standards of care of their time, were not experimental, and were acceptable in the view of the wider psychiatric community of the 1960’s and 1970’s. He specifically states, at pp. 43-44 of his report, that, “The suggestion that the STU [Social Therapy Unit] program mirrored the experiments of the Nazi doctors tried at Nuremberg is in my view melodramatic and bears little relationship to the work of the Oak Ridge physicians.”

[27] None of this could realistically have taken Plaintiffs’ counsel by surprise. Prof. Hucker himself was not a previously unknown figure in this debate. He was the author of the Hucker Report, Oak Ridge: A Review and an Alternative (1985), which had reviewed the Oak Ridge programs on behalf of the Ontario Ministry of Health in the mid-1980’s. By that time many of the more notorious aspects of the Oak Ridge programs were known to the public, and the Hucker Report is well-known for having made recommendations that ultimately led to the termination of some of the remaining programs.

[28] Moreover, the Plaintiffs’ other initial expert, Professor Bernard Dickens, a University of Toronto emeritus professor and a medical ethicist, had already devoted a portion of his report to the very issues that Dr. Xenakis addresses. Prof. Dickens discusses the Nuremberg Code, the Helsinki Declaration of the World Medical Association, and the international norms applicable to medical treatment and research. All of this review of international standards flows directly from the Plaintiffs’ pleading. In a pre-trial judgment in this action, Barker v Barker, 2017 ONSC 3397, para 93, rev’d 2018 ONCA 255, Perell J. summarized this aspect of the claim:

The Plaintiffs plead reliance on: (a) The Nuremberg Code; (b) The Universal Declaration of Human Rights, G.A. res. 217 (III), December 10, 1948, U.N.Doc. A/810 (1948); (c) The International Covenant on Civil and Political Rights (1976), 999 UNTS 171, [1976] CTS 47; (d) Convention against Torture and Other Cruel, Inhuman Punishment, Dec. 10, 1984, G.A. rs. 39/46, UN GAOR, 39th Sess., Supp. No. 51, art I; and (e) World Medical Association of Helsinki Ethical Principles for Medical Research Involving Human Subjects, adopted by the 18th WMA General Assembly in June 1964 and amended at the 52nd WMA General Assembly in October 2000.

[29] Dr. Xenakis’ report elaborates on these ideas further, and does so in the very way envisioned by the Plaintiff’s now nearly 20-year old pleading. He opines, at para 41, that, “The conditions of confinement and environment set by Dr. Barker undermine the elements of informed consent as established in the Nuremberg Code, the Declaration of Helsinki, and the International Covenant on Civil and Political Rights. He goes on, at para 12, to directly compare the Oak Ridge programs to “torture inflicted by the CIA”, and to “the U.S. military training program Survival-Evasion-Resistance-Escape (SERE)”, concluding that the Defendants’ techniques “share striking common features to the conditions of confinement imposed on the detainees in Guantanamo and black sites subjected to enhanced interrogation techniques (EITs).”

[30] This evidence flows directly from the Plaintiffs’ theory of the case and has been reflected in their pleading since the outset of the action. Paragraph 46 of the Statement of Claim alleges that, “The protocols developed and employed by [Defendants] Barker and Maier…mirrored in all respects the MKULTRA brain-washing experimentation developed by the CIA under the direction of Allen Dulles to better equip American prisoners of war…” It is simply not possible that Plaintiffs counsel, who drafted the pleading, could not foresee the comparison of Oak Ridge to international legal standards and to CIA and U.S. military programs. It was the Plaintiffs’ own issue.

[31] There would have been nothing wrong with including Dr. Xenakis’ expert report as part of their original package of Plaintiffs’ reports, but it is not proper material for a reply. It does not truly reply to anything raised by the Defendants’ reports, but rather bolsters what was already said in the Plaintiffs’ initial reports.

[32] In my view, the reports of Prof. O’Mara and Dr. Xenakis, while potentially interesting, are not necessary to the Plaintiffs’ case. They supplement the Plaintiffs’ other experts rather than reply to the Defendants’ experts and therefore are not properly produced and should not be introduced into the trial record. The Plaintiff has already produced experts that speak to the same issues. While the exclusion of the two Reply reports is not particularly prejudicial to the Plaintiff, their inclusion would be prejudicial to the Defendants. Defendants’ counsel will have to seek new experts in new fields for sur-reply, which will have impacts on the trial which I am reluctant to see or to authorize.

[33] The Reply reports of Prof. Shane O’Mara and Dr. Stephen Xenakis are not admissible at trial. Prof. O’Mara and Dr. Stephen Xenakis will not be called as witnesses.

Morgan J. Date: May 24, 2019