SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 00-CV-199551

DATE: 2020-09-29

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, 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 and Golnaz Nayerahmadi, for the Plaintiffs William Black and Meghan Bridges, for the Defendants, Elliot Thompson Barker and Gary J. Maier Sara Blake and Ann Christian-Brown, for the Defendant, Her Majesty the Queen in Right of Ontario

HEARD: September 24, 2020

ADMISSIBILITY OF damages REPORTS

[1] This is a combined trial management conference and motion with respect to the evidence to be adduced at the second phase – the damages phase – of this trial, which is scheduled to begin in about two months’ time. The first phase of the trial concerned liability of the Defendants for harms caused to the Plaintiffs during the 1960s, 1970s, and early 1980s, at the maximum-security Oak Ridge Division of the Mental Health Centre in Penetanguishene, Ontario: Barker v. Barker, 2020 ONSC 3746.

[2] The Defendants bring the present motion to challenge the admissibility in the upcoming portion of the trial of three expert reports recently served on behalf of the Plaintiffs. The reports in question are authored by Dr. John Bradford, Dr. Roy O’Shaughnessy, and Dr. Sharon Williams, who are, respectively, two psychiatrists and a psychologist.

[3] The Plaintiffs have also served an expert damages report of an accountant, Mr. Ian Wollach. The Wollach report is not the subject of the Defendants’ motion.

[4] Defendants’ counsel argue that the three reports are repetitive of matters already covered in the first phase of the trial. In particular, they submit that the reports repeat and elaborate on causation evidence that was previously adduced during the first phase of the trial.

[5] My trial judgment from the first phase of the trial made findings on liability and included a full canvassing of issues of causation for each of the Plaintiffs. I described the division of issues in the two-stage process as follows: “The trial of this matter has been scheduled in two parts, the first covering all liability, causation, defense and limitation issues, and the second covering quantification of damages”: Barker, at para 8.

[6] In introducing the portion of my judgment in which I reviewed the individual harm and causation evidence with respect to each of the Plaintiffs, I briefly summarized the approach I would take. In doing so, I indicated that the life stories, medical evidence, and psychiatric evaluations of each Plaintiff were in evidence. The introduction to this review of individualized evidence, at paras 174-175, states:

[174] Each of the Plaintiffs submitted an affidavit and/or agreed statement of facts and testified at trial, with the exception of several deceased Plaintiffs whose executors testified and whose discovery transcripts or other evidence is in the record. Further, each of the Plaintiffs were the subject of a medical records evaluation by one of the Defendants’ several expert witnesses and by Dr. Bradford on behalf of the Plaintiffs.

[175] Overall, there are 4 issues to be considered in reviewing the evidence with respect to each of the Plaintiffs: i) their pre-Oak Ridge background and index offence or reason for having been committed; ii) their experience at Oak Ridge with any of DDT, Capsule, or MAPP; iii) their post-Oak Ridge experience; and iv) an identification of harms that the STU programs might have caused them. A proper review of this evidence requires that the Plaintiffs be considered one at a time.

[7] I then went on in the next 1,000 or so paragraphs of the judgment to summarize and analyze the evidence with respect to the relevant portions of the life history of each of the Plaintiffs. This included a review of evidence not only about what each of them had gone through at Oak Ridge, but about their lives before and after their Oak Ridge experience and the way in which the treatment they received at Oak Ridge effected their individual medical conditions and the trajectory of their lives.

[8] It is important to note that causation evidence for psychiatric injury includes not just a formal psychiatric diagnosis, but evidence that “the disturbance suffered by the claimant is ‘serious and prolonged and rise[s] above the ordinary annoyances, anxieties and fears that come with living in civil society’”: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 SCR 543, at para 37. This can include, inter alia, evidence showing “how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment”: Ibid., at para 38.

[9] In keeping with this approach to causation, the evidence at the first phase of the trial was expansive, and delved deeply into the life trajectory of each Plaintiff. Matters such as the Plaintiffs’ inability to recover from mental illness, their delayed recovery and protracted institutionalization, their difficulties in living outside of an institutional setting, their inability to maintain social relationships, and their sometimes violent recidivism, were all canvassed in my judgment as aspects of the harm they were caused by the Defendants at Oak Ridge. I found that, in some degree or another, each of the Plaintiffs had been caused harm by the Defendants, and detailed the nature and extent of that harm.

[10] The upcoming, second phase of the trial is not a new trial. The trial is being heard in two parts for scheduling reasons, but it is all one trial. That means that all of the evidence adduced during the first phase of the trial remains in the record for the second phase. It does not have to be repeated in order to be referred to as the basis of damages submissions, and it will not be repeated.

[11] What is at issue in the upcoming phase is quantification of damages. I do not expect to hear more evidence on the mental suffering caused by the Defendants or the ways in which the Oak Ridge experience has impacted on the rest of their lives. That may well be relevant to the quantification of damages, but I have heard that evidence and it is already in the record.

[12] Reading the present reports of Drs. Bradford, O’Shaughnessy, and Williams is, for me, a déjà vu experience. Dr. O’Shaughnessy, for example, sets out in his introduction the parameters of his expert report. He states that he is giving his opinion on the “treatment, prognosis and trajectory of the patients listed below.” This is entirely repetitive of the first phase of the trial.

[13] By way of illustration, at para 106 of his report, Dr. O’Shaughnessy observes that the Plaintiff, Brian McInnes, developed a “chronic offending pattern”, and that but for the treatment at Oak Ridge he would not have gone on to develop the type of criminal behaviour that he did. With respect, this appears to be an attempt to re-litigate findings I have already made.

[14] After a long review of Mr. McInnes’ experiences, mental health condition, and life trajectory, I found: “ While it is difficult to say that his relatively short Oak Ridge experience also caused him to engage in his later criminality, the record does establish that the STU, and specifically his experience in MAPP, hurt him when he went through it and accelerated his anxiety-related instability, thereby contributing to his inability to live a happy and economically stable life”: Barker, at para 940. In other words, the evidence was inconclusive as to whether his post-Oak Ridge criminal conduct was caused by the Defendants’ treatment of him, but the evidence did establish that the Defendants’ acts caused him his post-Oak Ridge inability to hold a steady job and achieve economic stability. That finding was not an invitation to Plaintiffs’ counsel to try to bolster the record and prove an aspect of causation that they had not succeeded in proving; rather, it set the stage for the damages phase of the trial and was an invitation to adduce evidence of Mr. McInnes’ economic loss.

[15] The expert report of Dr. Williams contains a similar problem. Her report focuses on the Plaintiff, Allen McMann, for whom she was in the past a treating psychologist. It indicates at the outset that it will “…comment on the long-term effect of the Oak Ridge Program on Mr. McMann’s life based only on assessments, observations and knowledge of him during the 1980…” This is the same kind of causation analysis that was done in the first phase of the trial. There, evidence of a change in life trajectory was submitted as a measure of psychiatric injury. The parties took seriously the Supreme Court’s direction that, “the claimant’s task in establishing a mental injury is to show the requisite degree of disturbance”, and that expert evidence can be used to assist in that task: Saadati, at paras 37-38.

[16] At para 975 of my judgment, I concluded, after a lengthy review of Mr. McMann’s experiences with the Defendant doctors at Oak Ridge, that, “Neither Doctor related to Mr. McMann properly as a patient under their actual care, and both treated him as part of an institution which they were attending to for purposes other than the individual treatment of Mr. McMann. Their treatment of him caused harm to his sense of emotional well-being and personal dignity.” In her proferred expert report, Dr. Williams goes through a similar analysis of Mr. McMann’s experiences, and concludes: “I can state categorically that after three years in a program such as the one provided at Penetang, there would have been cognitive, emotional and behavioural changes [in Mr. McMann]”. In other words, the report repeats what has already been found at trial.

[17] In the report of Dr. Bradford that is before me in this motion, the mandate given to him is likewise set out at the beginning of the report. He indicates that he will address the question of how treatment at Oak Ridge affected the individual Plaintiffs’ long-term treatment, and whether they could otherwise have been treated and released earlier. These exact topics were covered in Dr. Bradford’s January 8, 2019 expert report on causation and his testimony in the first phase of the trial, which were cited repeatedly in my judgment.

[18] Defendants’ counsel has reproduced in their motion materials extensive passages from Dr. Bradford’s current report that repeat and embellish on what was said in his previous report and what I found at trial. To take one example, Dr. Bradford in his current report, at p. 4, concludes with respect to the Plaintiff, Shauna Taylor: “Ms. Taylor is an intelligent person with a record of proactively pursuing educational and vocational opportunities for upgrading her skills. Had she received appropriate treatment in the 1970s, 1980s, and indeed later in the 1990s, or early 2000s, her treatment and life trajectories would have likely been considerably different, with her likely leading a productive life.” This can be compared with my own conclusion, at para 1159, with respect to Ms. Taylor, relying heavily on Dr. Bradford’s January 2019 report: “As Dr. Bradford states, Oak Ridge and the STU programs caused her to take more time than would otherwise have been necessary to deal effectively with her psychiatric disorders and to earn some degree of liberty. The long-term trajectory of her life would have been different, and better, but for her comparatively lengthy exposure to the 3 impugned, harmful programs.”

[19] Counsel for the Plaintiffs describes the new report by Dr. Bradford as a “deeper dive” into issues that he feels may not have been sufficiently addressed by Dr. Bradford’s several causation reports that are in evidence from the first phase of the trial. With respect, that reflects a misapprehension of what the second phase of the trial will cover. I have already heard roughly 9 weeks of testimony, read several thousand pages of affidavits, medical records, and transcripts, and devoted 328 pages, or 1,329 paragraphs, of my judgment to issues of liability, causation, and harm. The human psyche may be a limitless abyss, but the trial process is not. I do not foresee diving any deeper into the depths of those issues.

[20] The expert reports before me here do contain sporadic portions that are relevant to the quantification of damages, even if overall they address issues that were addressed in the first phase of the trial. One example acknowledged by Defendants’ counsel is at para 74 of Dr. O’Shaughnessy’s report, where he opines: “It is likely [Mr. McMann] would also have had difficulties obtaining and maintaining competitive employment but any such difficulties would have been worsened by the traumatic experiences encountered in Oak Ridge.” This observation is addressed to economic loss issues, and I would have expected all of the expert reports submitted at this stage to be addressed to such issues.

[21] What is admissible in the second phase of the trial is expert evidence of what the Plaintiffs’ hypothetical lives might have been but for their Oak Ridge experiences. This would most helpfully be done with particular focus on the economic aspect of their lives – i.e. what kind of job or career might they have had, how long would they likely have been institutionalized had it not been for Oak Ridge, what would have been their expected timeline with respect to their earning capacity, etc. As Defendants’ counsel put it, the damages phase of the trial requires experts to opine on the “alternate universe” of economic opportunity that would have presented itself to each Plaintiff but for their Oak Ridge experience.

[22] This evidence must be presented without repeating or supplementing the causation evidence, and without being based on new types of injury that I did not find in my first phase judgment. The evidence at the damages stage is to be limited to the prospective consequences – and particularly the economic consequences – of the injuries I already found that the Plaintiffs have suffered. Further, to the extent that the expert reports also address the quantification of the mental distress and non-economic harms suffered by the Plaintiffs, the evidence and findings with respect to those harms is already in the record and fully canvassed in my first phase judgment. The point of the damages phase is to attribute dollar amounts to those findings.

[23] Finally, counsel will have an opportunity in the upcoming phase of the trial to address the question of punitive damages, which have been pleaded. That analysis, however, will not require further evidence from the Plaintiffs, as it is directed at the acts of the Defendants that caused the Plaintiffs the suffering that I have already reviewed and found to have transpired. The Supreme Court of Canada has instructed in Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 SCR 595, at para 36, that, “Punitive damages are awarded against a defendant in exceptional cases for “malicious, oppressive and high-handed” misconduct that ‘offends the court’s sense of decency’… The test thus limits the award to misconduct…”

[24] As currently written, the expert reports of Drs. Bradford, O’Shaughnessy, and Williams are repetitive and so fail the test in R v. Mohan, 1994 80 (SCC), [1994] 2 SCR 9 for admitting expert evidence in that they are not necessary and are at this stage prejudicial without being probative. They are therefore inadmissible.

[25] The Plaintiffs are at liberty to submit new expert reports from any of the three doctors that are revised or re-written to conform with the requirements of Mohan as they pertain to the upcoming damages phase of the trial. This must be done expeditiously, as the Defendants will require time to respond to any new reports that the Plaintiffs submit.

Morgan J.

Date: September 29, 2020