COURT FILE NO.: 00-CV-199551

DATE: 20201126

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 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 DR. ROY O’SHAUGHNESSY REPLY REPORT

[1] Counsel for the Defendants move to strike out portions of the Reply Report authored by Dr. Roy O’Shaughnessy dated November 16, 2020. Specifically, they seek to strike paragraphs 11-12, 16-18, 25, and 34 of the O’Shaughnessy Reply Report as falling into one of two inadmissible categories: a) statements that raise new liability and/or causation issues not addressed in the first phase of this trial; and b) statements that raise liability and/or causation issues already addressed in the first phase of this trial.

[2] Dr. O’Shaughnessy has been qualified in this phase of the trial as an expert in forensic psychiatry with particular expertise in adolescent delinquency, and is to give opinion evidence on issues of damages and the employment trajectory of the Plaintiffs whose records and history he has examined. His Report of October 9, 2020 is in evidence, and its admissibility is not challenged by the Defendants.

[3] In my endorsement of September 29, 2020 on admissibility of the first version of the expert reports submitted on behalf of the Plaintiffs, including that of Dr. O’Shaughnessy, I set out the general principles relating to the evidence relevant to the damages portion of this trial: Barker v. Barker, 2020 ONSC 5844 (“October Endorsement”). I will not repeat those principles here, but will incorporate them by reference.

[4] As a general proposition, the challenge posed by Defendants’ counsel correctly identifies two categories of evidence that I indicated are inadmissible. If any of the experts or other witnesses in the damages phase of the trial provide evidence which either repeats or supplements evidence that was relevant in the liability/causation phase of the trial, that evidence would be inadmissible for the damages phase. This is one continuous trial with one continuous record, and the evidence from the first phase, although now complete, remains in the record for use in the second phase.

[5] That said, one paragraph in my October Endorsement bears repeating. At para 21, I descried the relevant damages issues for the expert witnesses as follows:

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.

[6] To be clear, when I spoke of the Plaintiffs’ Oak Ridge experiences, I was referring to their experiences in the three impugned Social Therapy Unit programs that are at issue in this action and that were the described in detail in the first phase of the trial. In my judgment from the first phase, I identified these programs as having been the focus of the action all along, and emphasized that they are, in fact, the exclusive focus of the case: Barker v. Barker, 2020 ONSC 3746, at para 2:

In a 2003 ruling that denied certification, Cullity J. identified the three programs at which the claim is specifically aimed: a mind-altering drug regime called Defence Disruptive Therapy (‘DDT’), an isolation cell for group drug encounters called the Total Encounter Capsule Program (the “Capsule’), and a strict physical disciplinary regime called the Motivation, Attitude, Participation Program (‘MAPP’): Joanisse v. Barker, 2003 CanLII 25791, at para 3. All three programs were carried out in the Social Therapy Unit (“STU”), a self-contained unit housed within Oak Ridge, primarily although not entirely by either or both of the Defendants, Dr. Elliott Barker and Dr. Gary Maier (together, the “Doctors”).

[7] Accordingly, the question at which the expert evidence is to be addressed is how to quantify the loss caused by the Plaintiffs’ participation in the DDT, Capsule, and MAPP. When it comes to loss of income, the question can be stated as a ‘but for’ question – i.e. but for the harm caused by their participation in the tree STU programs, what would the Plaintiffs’ respective employment or income-earning prospects have been? This will take into account the type or jobs and length of career or working life that the Plaintiffs might have had if they had not been in the three programs; it does not, however, ask what their trajectory would have been had they been in altogether different programs or received altogether different kinds of medical treatment.

[8] In other words, the quantification of damages is meant to quantify the harms inflicted on them by the STU programs, but it does not ask what their income earning potential might have been in the best of all worlds or with the best of all treatment. Similarly, the action does not challenge their having been in Oak Ridge or the STU in the first place. In examining the “alternative universe” described above – i.e their income earning potential or employment trajectory absent the three impugned programs – the fact that they were in Oak Ridge at all is not to be eliminated. It is a given that they were in Oak Ridge, and then one must imagine what would have become of them had Oak Ridge not included the DDT, Capsule, and MAPP.

[9] The challenged paragraphs in Dr. O’Shaughnessy’s Reply Report are all written in response to opinions stated in the expert reports of Dr. Brad Booth and Dr. Gary Chaimowitz submitted on behalf of the Defendants. Accordingly, to the extent that these paragraphs are inadmissible, or need to be read down, the corresponding portions of the Booth and Chaimowitz reports may be equally problematic. Since those two reports have not yet been formally introduced in the second phase of the trial, I will not undertake any analysis of them except as mentioned in the O’Shaughnessy Reply Report. However, when it is the Defendants’ turn to introduce their expert witnesses, those reports will be subject to the same scrutiny as the Plaintiffs’ expert reports.

[10] Turning to the specific challenged paragraphs in reverse order of their appearance, it is clear to me that paragraphs 25 and 34 of the O’Shaughnessy Reply Report address irrelevant issues and should be disregarded. Again, I do not exactly blame Dr. O’Shaughnessy for this, as they appear to be in direct reply to matters opined upon by the Defendants’ experts.

[11] Nevertheless, in paragraph 25 Dr. O’Shaughnessy comments on what alternatives were available other than the STU programs and opines on the nature of the harms caused by the STU programs. He also observes that at least one of the Plaintiffs should not have been at Oak Ridge at all.

[12] Likewise, in paragraph 34, Dr O’Shaughnessy expounds on the existence of alternative treatments or programs in which the Plaintiffs might have been placed instead of the STU programs. As indicated, the question is where would the Plaintiffs be but for the STU programs, and not where would they be if they had been sent somewhere other than Oak Ridge or had been placed in different and better treatment programs. Those are not relevant considerations and therefore fail the fundamental test of admissibility in R v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9.

[13] This phase of the trial is a trial of damages for specific wrongful acts, and not a generalized inquiry into how psychiatric patients should have or could have been treated in the 1960s and 70s.

[14] Paragraphs 16 to 18 of the O’Shaughnessy Reply Report are admissible. Those paragraphs are essentially devoted to a debate between Dr. O’Shaughnessy and Dr. Booth on whether the STU experience prolonged the institutionalization of the Plaintiff, Danny Joanisse.

[15] This discussion inevitably entails some review of his pre-Oak Ridge psychiatric condition and his response to the STU programs given his mental state. These are relevant damages questions since they relate directly to the question of employment trajectory or time available for income earning employment.

[16] While this discussion inevitably repeats in a sentence or two matters already found in my phase one judgment – e.g. that the STU programs were designed to break down personality and defenses – this is noted by way of factual context and not put forward as new opinion. Dr. O’Shaughnessy’s opinions and analysis contained in these paragraphs respond properly to relevant issues put into discussion by Dr. Booth.

[17] Paragraph 12 of the O’Shaughnessy Reply Report is also admissible. That paragraph takes issue with the opinions of both Drs. Chaimowitz and Booth with respect to the expected recovery trajectory of the Plaintiffs.

[18] Specifically, Dr. O’Shaughnessy discusses the impact on the most youthful of the Plaintiffs, and opines that their trajectory would have been differently impacted than adult patients in the STU programs. This is relevant to the question of whether the impugned programs lengthened the institutionalization, and thus shortened the employability, of various Plaintiffs. It is admissible on that basis.

[19] Paragraph 11 of the O’Shaughnessy Reply Report is not admissible. This paragraph responds in a direct way to an opinion ventured by Dr. Chaimowitz about what kind of patients the STU programs were designed for, and whether the Plaintiffs discussed by Dr. O’Shaughnessy should have been there or not. This entire subject is outside the scope of the Plaintiffs’ action.

[20] As indicated, the Plaintiffs did not challenge the decisions that sent them to Oak Ridge and the STU; rather, they claim for damages on the basis of the harms caused to them by the STU programs once they were there.

[21] As a result, I will disregard paragraphs 11, 24, and 35 of the O’Shaughnessy Reply Report.

[22] In addition, I am cognizant of the observation made by counsel for the Crown that there are other sentences here and there in the O’Shaughnessy Reply Report that stray into irrelevant areas or areas already covered by the first phase of the trial. That is a valid observation, although sometimes, as indicated above, it is done as a matter of coherent drafting and to provide context to the analysis, and is not integral to the expert opinion that is actually being proffered.

[23] To the extent that a passage in any expert report, including the O’Shaughnessy Reply Report, strays into areas that are not strictly relevant, I will disregard those comments or read the paragraph down so as not to take any such stray sentence into account.

Morgan J.

Date: November 26, 2020```