Court File and Parties

COURT FILE NO.: 00-CV-199551

DATE: 20201118

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, 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, Golnaz Nayerahmadi, Adam Babiak, and Matthew Taylor, for the Plaintiffs

William Black, Sam Rogers, Meghan Bridges, and Bonnie Greenaway, 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: Submissions in writing

ENDORSEMENT RE draft judgment on liability issues

[1] On June 25, 2020, I released my reasons for judgment in the first phase of this trial concerning all liability issues: Barker v. Barker, 2020 ONSC 3746. The second phase of the trial, concerning damages issues, is scheduled to commence this coming week, on November 23, 2020.

[2] Counsel have prepared a draft formal judgment relating to the liability phase of the trial and have asked me to sign it. The proposed judgment has all parties’ consent as to form and content. The draft judgment is attached as Schedule ‘A’ to this endorsement.

[3] Even with all parties’ consent, it is, of course, necessary to carefully consider a draft judgment in all of its aspects. Any error in issuing the formal judgment could have unforeseen consequences despite all parties and counsel agreeing to the specific wording: see Wellman v. Telus Communications Co., 2019 ONSC 5684.

[4] The draft submitted by counsel appears to accurately reflect the conclusions on liability contained in my reasons for judgment of June 25, 2020. What concerns me is not the content of the draft judgment, but the necessity for a formal judgment at all at this stage of the proceedings.

[5] Since I found liability in one form or another against each of the Defendants, they will be entitled to appeal. I have been advised by counsel that the Defendants are holding off on any potential appeal until after the upcoming damages phase is complete. In that way, in considering whether and what to potentially appeal they can consider the entirety of the trial – including both liability and damages – at the same time. It is their right to proceed in that way and it makes sense to do so.

[6] The upshot of this approach is that there is no need for a formal judgment at this stage in order to perfect a record for appeal. If there is to be an appeal, that can be done following the eventual reasons for judgment on the damages phase. A formal judgment at that point will incorporate the findings of liability as well as the quantification of damages.

[7] With that in mind, it was not clear to me whether or why a formal judgment is being sought now. I therefore requested brief submissions from each side explaining their view and reviewing any case law on the question of judgments in bifurcated proceedings of this nature.

[8] It is clear from the submissions that I have received that counsel for both sets of Defendants desires a formal judgment. As for counsel for the Plaintiffs, they have consented to the form and content of the draft judgment and so do not oppose it being issued, but they do not view it is necessary at this stage and submit that there is no reason that a formal judgment cannot wait until it can include the results on damages as well as on liability.

[9] Although this trial has been bifurcated in the sense that it is being heard in two different phases and my reasons for judgment have been divided accordingly, it is not two separate trials necessitating two separate records or two separate judgments. I made this point in my reasons for judgment on liability, Barker, supra, at para 8, and I reiterated it in a recent ruling on admissibility of expert evidence for the damages phase, Barker v. Barker, 2020 ONSC 5844, at para 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.

[10] In that ruling on admissibility, I expressed considerable concern that the damages phase contain no repetition of evidence that was or that could have been contained in the liability phase of the trial. I agreed with counsel for the Defendants that a substantial portion of the expert reports submitted by the Plaintiffs for the damages phase effectively reviewed and relitigated issues already put to rest in the liability phase. I gave several specific examples of that in my admissibility ruling, including instances where the newly submitted expert reports appeared aimed at expanding the liability findings in favour of certain of the Plaintiffs that were otherwise limited in my June 25th reasons for judgment.

[11] That concern has resurfaced in the submissions on the draft judgment sent to me by Defendants’ counsel. The brief submitted by counsel for the individual Defendants, with which counsel for the Crown agrees, explains that the reason for wanting a formal judgment of the liability stage is to signal that my findings from the first phase of the trial are res judicata. They understandably do not want to find themselves having to answer liability issues and respond to liability evidence already addressed in my June 25, 2020 reasons.

[12] As Plaintiffs’ counsel point out, while a formal judgment can be issued at the discretion of the trial judge, “no formal judgment is required unless an appeal or a motion for leave to appeal is brought to an appellate court”: The Second Cup Ltd. v. 2410077 Ontario Ltd., 2020 ONSC 3684, at para 71. Since no appeal is pending, there is no legal imperative in issuing a formal judgment right now.

[13] That said, there is merit to the Defendants’ argument that a formal judgment would serve to preserve the accuracy of my conclusions on liability and will prevent them from being re-addressed in the damages phase. As Perell J. observed in Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc., 2013 ONSC 1502, at para 34, quoting Chrysler Credit Canada Ltd. v. 734925 Ontario Ltd., [1991] O.J. No. 3619, at para 10 (Master):

The purpose of…[the] procedure [under Rule 59] is to ensure, so far as humanly possible, that the formal order upon which an appellate court, and other members of the same court, sheriff, accountant, etc., will act accurately sets out the intention of the court which pronounced the order as reflected in the endorsement or reasons. It is important that this should be done so that all concerned may know their rights, obligations and duties. It is far more than a mere formality.

[14] Rule 1.04 of the Rules of Civil Procedure directs the court to approach questions such as this in as just, expeditious, and economical a way as possible. As explained in my reasons for judgment on liability, the scheduling of the trial in two phases has been done in an effort to accomplish these goals in the context of a complex action that is already 20 years old and that relates to events that are now more than 40 years old. The two phases have been designed so that the liability phase could get started and the damages phase could proceed thereafter if liability was found, but that the record of both phases would constitute one trial record and nothing would have to be repeated.

[15] I would not want the issuance of a formal judgment from the first phase to be mistaken as putting an end to that trial and signalling that the damages phase is a separate trial with a separate evidentiary record. On the other hand, I would not want the non-issuance of a formal judgment from the first phase to be mistaken as leaving open for further consideration the liability issues for which findings have already been made.

[16] The second phase of the trial will be a continuation of the first in the sense that the evidentiary record will continue as one record and no evidence need be repeated, including any evidence which was adduced at the liability phase which is also relevant to the damages phase. At the same time, the second phase of the trial will proceed with all liability findings already conclusively made and not open to expansion, contraction, or other reconsideration. The damages analysis will flow from what has already been found in the liability analysis contained in my June 25, 2020 reasons for judgment.

[17] In order to best accomplish these goals, I will refrain from issuing a formal judgment with respect to the liability issues alone. Those conclusions, along with the conclusions on the damages issues, will be contained in an all-inclusive formal judgment that can be issued following the reasons for judgment in the upcoming damages phase.

[18] For greater certainty, I would envision that the conclusions on liability set out in the eventual formal judgment will be the same as those set out in Schedule ‘A’. In that way, although there will be no formal judgment issued until the end of the damages phase, there will be a draft judgment on liability that, together with the myriad of findings in my June 25, 2020 reasons, will serve as a guidepost keeping the damages phase on track.

Morgan J.

Date: November 18, 2020

SCHEDULE ‘A’

Court File No.: 00-CV-199551

ONTARIO

SUPERIOR COURT OF JUSTICE

THE HONOURABLE JUSTICE EDWARD M. MORGAN

THURSDAY, THE 25th DAY OF JUNE, 2020

BETWEEN:

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, WILLIAM A. McDOUGALL, 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 by his Litigation Guardian JANINE BARKER, GARY J. MAIER, and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendants

JUDGMENT

THIS TRIAL OF LIABILITY ISSUES against the Defendants Dr. Elliott Thomson Barker (“Dr. Barker”), Dr. Gary J. Maier (“Dr. Maier”), and Her Majesty the Queen in right of Ontario (the “Crown”) was heard April 29-May 7, May 10-June 7, June 17-20, October 3-23, December 2-6, 2019, and January 27-31, 2020, without a jury, at 361 University Avenue, Toronto, Ontario, in the presence of the lawyers for all parties.

ON READING THE PLEADINGS AND HEARING THE EVIDENCE and on reading and hearing the submissions of the lawyers for the parties,

1. THIS COURT ORDERS AND ADJUDGES that Dr. Barker, Dr. Maier, and the Crown are jointly and severally liable to the Plaintiffs Reginald Barker, Jean-Paul Belec, Terry Ghetti, Eldon Hardy, Danny Joanisse, Russ Johnson, Douglas McCaul, Allen McMann, and Michael Pinet for breach of fiduciary duty, assault, and battery.

2. THIS COURT ORDERS AND ADJUDGES that Dr. Barker and the Crown are jointly and severally liable to the Plaintiffs Eric Bethune, Joseph Bonner, Stephen Carson, Stanley Kierstead, Denis LePage, Christian Magee, Leeford Miller, and Edwin Sevels for breach of fiduciary duty, assault, and battery.

3. THIS COURT ORDERS AND ADJUDGES that Dr. Maier and the Crown are jointly and severally liable to the Plaintiffs William Brennan, Roy Dale, Donald Everingham, John Finlayson, Bruce Hamill, William Hawboldt, Brian McInnes, James Motherall, Samuel Shepherd, and Shauna Taylor for breach of fiduciary duty, assault, and battery.

4. THIS COURT ORDERS AND ADJUDGES that the Crown is liable to the Plaintiff Maurice Desrochers for breach of fiduciary duty, assault, and battery.

5. THIS COURT ORDERS AND ADJUDGES that the Crown is vicariously liable for Dr. Barker’s and Dr. Maier’s breaches of fiduciary duty, assaults, and batteries.

6. THIS COURT ORDERS AND ADJUDGES that the Crown is liable for knowingly assisting Dr. Barker and Dr. Maier in breaching their fiduciary duties to the Plaintiffs.

7. THIS COURT ORDERS AND ADJUDGES that the Plaintiffs’ claim for intentional infliction of emotional distress is hereby dismissed.

8. THIS COURT ORDERS AND ADJUDGES that the Plaintiffs’ claim for negligence is hereby dismissed.

9. THIS COURT ORDERS that the damages owed by the Defendants to each Plaintiff be determined in the damages phase of the trial, to be scheduled at a future case management conference.

10. THIS COURT DIRECTS that costs of the trial of the liability issues be reserved until the completion of the damages phase of the trial.