Barker v. Barker, 2021 ONSC 158

Court File and Parties

Court File No.: 00-CV-199551 Date: 2021-02-08 Ontario Superior Court of Justice

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, 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

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 Sarah Blake and Ann Christian-Brown, for the Defendant, Her Majesty the Queen in Right of Ontario

Heard: November 23-December 4 and December 11-18, 2020

JUDGMENT – DAMAGES E.M. Morgan J.

I. The damages phase of the trial

II. General principles applicable to the damages claims

a) General damages b) Damages cap c) Aggravated damages d) Punitive damages e) Remoteness and ex turpi causa f) Income loss

III. Plaintiffs’ individual claims

a) Reginald Barker i) Liability and causation findings ii) General damages iii) Punitive damages b) Jean-Paul Belec i) Liability and causation findings ii) General damages iii) Punitive damages c) Eric Bethune i) Liability and causation findings ii) General damages iii) Punitive damages iv) Income loss d) Joseph Bonner i) Liability and causation findings ii) General damages iii) Punitive damages e) William Brennan i) Liability and causation findings ii) General damages iii) Punitive damages iv) Income loss f) Stephen Carson i) Liability and causation findings ii) General damages iii) Punitive damages g) Roy Dale i) Liability and causation findings ii) General damages iii) Punitive damages iv) Income loss h) Maurice Desrochers i) Liability and causation findings ii) General damages iii) Punitive damages i) Donald Everingham i) Liability and causation findings ii) General damages iii) Punitive damages j) John Finlayson i) Liability and causation findings ii) General damages iii) Punitive damages k) Terry Ghetti i) Liability and causation findings ii) General damages iii) Punitive damages l) Bruce Hamill i) Liability and causation findings ii) General damages iii) Punitive damages m) Eldon Hardy i) Liability and causation findings ii) General damages iii) Punitive damages iv) Income loss n) William Hawboldt i) Liability and causation findings ii) General damages iii) Punitive damages o) Danny Joanisse i) Liability and causation findings ii) General damages iii) Punitive damages iv) Income loss p) Russ Johnson i) Liability and causation findings ii) General damages iii) Punitive damages q) Stanley Kierstead i) Liability and causation findings ii) General damages iii) Punitive damages r) Denis LePage i) Liability and causation findings ii) General damages iii) Punitive damages iv) Income loss s) Christian Magee i) Liability and causation findings ii) General damages iii) Punitive damages t) Douglas McCaul i) Liability and causation findings ii) General damages iii) Punitive damages iv) Income loss u) Brian McInnes i) Liability and causation findings ii) General damages iii) Punitive damages iv) Income loss v) Allen McMann i) Liability and causation findings ii) General damages iii) Punitive damages iv) Income loss w) Leeford Miller i) Liability and causation findings ii) General damages iii) Punitive damages x) James Motherall i) Liability and causation findings ii) General damages iii) Punitive damages y) Michael Pinet i) Liability and causation findings ii) General damages iii) Punitive damages iv) Income loss z) Edwin Sevels i) Liability and causation findings ii) General damages iii) Punitive damages aa) Samuel Shepherd i) Liability and causation findings ii) General damages iii) Punitive damages bb) Shauna Taylor i) Liability and causation findings ii) General damages iii) Punitive damages iv) Income loss

IV. Pre-judgment interest

V. Disposition

I. The damages phase of the trial

1On June 25, 2020, I released the reasons for judgment in the first phase of this trial, where I made findings with respect to the liability issues as well as causation: Barker v. Barker, 2020 ONSC 3746 (“Barker Trial I”). As I explained, at para 7, the trial has been conducted in two phases as a scheduling accommodation in order to avoid any further delay in this now 20 year-old action dealing with 40-50 year-old events.

2In addition to the various findings made in Barker Trial I, I summarized the lengthy procedural history of this action and reviewed the salient background facts leading up to the Plaintiffs’ claim. All of that remains relevant in the second phase of the trial, but I will not repeat it here. Rather, the entirety of my judgment in Barker Trial I is incorporated by reference to form part and parcel of this judgement.

3I will only mention for the sake of emphasis that this case started its life as a proposed class action but certification was denied: Joanisse v. Barker, 2003 25791 (SCJ), aff’d [2004] OJ No 5443 (Div Ct). It was then reconstituted as a multi-party action in which each individual Plaintiff’s claim must be assessed and proved in its own right against each of the specific Defendants: Joanisse v. Barker, 2006 CarswellOnt 10233 (SCJ). Each Plaintiff has provided evidence on their own behalf in the first phase of the trial, and some, but not all, have provided evidence of their employment history and trajectory in the second phase of the trial. There have also been a number of expert witnesses on each side. Although the Defendants have responded to all of the Plaintiffs’ claims at the same time, they have provided evidence at both phases of the trial in defense of each individual claim.

4The evidentiary record of the first phase of the trial continues to form part of the evidentiary record for the second phase. Exhibits adduced into evidence in the second phase of the trial have been marked and numbered seriatim with those of the first phase, making for one overall record. In their final submissions on damages, counsel have drawn on matters in evidence from both phases of the trial as well as from my findings in Barker Trial I.

5In a motion dealing with certain expert reports that was argued in-between the two phases of the trial, I set out the parameters for admissibility of evidence in the second phase: Barker v. Barker, 2020 ONSC 5844 (“Barker Admissibility”). The usual rules of evidence apply in this second phase as they applied in the first; in addition, however, I was conscious of the ongoing need for expedition and judicial economy in a long, complex, and aging trial like this one: see Barker v Barker, 2018 ONCA 255, at para 26; Barker Trial I, at para 4.

6Like the first phase, the second phase of the trial continued as a hybrid procedure, with affidavits and/or expert reports being admitted as evidence from each of the witnesses, followed by abbreviated viva voce testimony in chief and full cross-examination of each of them. Further, and more specific to this two-phase trial, counsel were directed not to repeat in the second phase matters already covered in the first phase: Barker Admissibility, at paras 10-11. Accordingly, while all of the evidence from the first phase has remained in the record for the second phase, parties were not to repeat any of that evidence or to revisit findings already made in respect of that evidence in Barker Trial I.

7The analysis pursued in the second phase of the trial proceeds from the findings in Barker Trial I that the three impugned programs carried on in the Social Therapy Unit (“STU”) of the Oak Ridge Division of the Penetanguishene Mental Health Center from the mid-1960s until the early 1980s caused each of the Plaintiffs harm in one degree or another. It is the harms caused by these programs – Defence Disruptive Therapy (“DDT”), the Total Encounter Capsule (“Capsule”), and the Motivation, Attitude, Participation Program (“MAPP”) – that is the focus of the Plaintiffs’ claim and of the Barker Trial I judgment and that is the sole focus of the damages analysis: see Barker Trial I, at para 3.

8All of the Plaintiffs make claims for general damages and for punitive damages. As indicated, some but not all of the Plaintiffs also make income loss claims. The focus there is on the specific income losses caused to each Plaintiff by the DDT, Capsule, and MAPP, and not the losses caused by their institutionalization at Oak Ridge in the first place or their experiences outside of the three impugned programs.

9The second phase of the trial has approached the income loss issues as a form of hypothetical “what if…” question. The goal is to assess each Plaintiff’s economic trajectory, or rather their lost economic trajectory, over the decades since their respective times in the STU. Counsel have thus approached this analysis with what they have called the “alternate universe” perspective on each Plaintiff’s economic history: Barker Admissibility, at para 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.

10This approach was summarized in a mid-trial voir dire ruling with respect to the report of one of the Plaintiffs’ expert witnesses, Dr. Roy O’Shaughnessy: Barker v. Barker, 2020 ONSC 7301, at paras 7-8:

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 three STU programs, what would the Plaintiffs’ respective employment or income-earning prospects have been? This will take into account the type of 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.

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.

11In Barker Trial I, the main cause of action for which liability was found against the Defendants is breach of fiduciary duties. This liability is both direct on the part of the Defendants, Elliott Thompson Barker and Gary J. Maier (the “Doctors”), and the Ontario Crown and vicarious on the part of the Crown since the Doctors were Crown employees at the relevant times.

12The Doctors were also found liable in battery to those individual Plaintiffs who were in any or all of the Capsule, DDT, and MAPP and for whom one or the other of the Doctors was responsible for them being there. As counsel for the Doctors point out, there is no holding in Barker Trial I that the Doctors themselves are vicariously liable for the acts of any other Oak Ridge employee who might have sent any one of the Plaintiffs to one of the three STU programs in issue.

13In Barker Trial I, at para 1328, the specific holdings against each of the Defendants were itemized and related to the claims of each of the individual Plaintiffs. As indicated, this is not a class action and so there can be no aggregating of damages or imposition of a collective award; rather, the damages assessment must conform with the specific, individual holdings set out in the Barker Trial I judgment.

II. General principles applicable to the damages claims

14At the conclusion of Barker Trial I, at para 1327, I employed a graded scale of harms caused by the STU programs to the Plaintiffs, qualifying them as either short term or long term and any of mild, moderate, or substantial. I expressly stated that this was being provided as a guide to the damages phase of the trial, but that the gradations of harm expressed there “do not reflect any externally established standards or my own subjective response to any individual Plaintiff.”

15Accordingly, it is the reported cases dealing with comparable situations, together with the expert evidence, that set the parameters of the damages awards to be applied to the individual Plaintiffs in accordance with their personal histories. I must, of course, endeavor to make each Plaintiff whole: Athey v. Leonati, 1996 183 (SCC), [1996] 3 SCR 458, at para 32. But I must also strive to be in sync with awards in other comparable situations – keeping in mind that the present case is rather unique in its facts. The Court of Appeal has made it clear that in arriving at a quantum of damages, trial judges are to avoid the pitfall of approving “large differences in awards to individuals who do not differ greatly”: Mulroy v. Aqua Scene (1982), 36 OR (2d) 653, at para 15 (Ont CA).

16It is obvious that in a case like this any quantification of damages, especially for non-pecuniary losses, will entail an element of arbitrariness since recompense for lost years and psychological suffering is not mathematically calculable. At the same time, the quantification must not be out of line with existing cases. It certainly must not be so high or low as to be considered disproportionate: Fernandes v. Penncorp Life Insurance Company (2014), 2014 ONCA 615, 122 OR (3d) 192, at para 97. Plaintiffs’ counsel argue that this case is factually and historically unique, which is accurate; but that does not mean that quantification of damages is without precedent. Courts do have experience quantifying physical and emotional/psychiatric harm, and it is from that experience that the analysis will draw. As the Supreme Court of Canada has put it, “[t]he award must be fair and reasonable, fairness being gauged by earlier decisions”: Andrews v. Grand & Toy, 1978 1 (SCC), [1978] 2 SCR 229, 261.

a) General damages

17All of the Plaintiffs seek some quantity of general damages for the non-pecuniary harms that they suffered. The starting point for quantification of non-pecuniary losses is Andrews, supra. Of importance is the admonition of the Supreme Court that the amount of the award is to be tied to the given Plaintiff’s experience and needs: Taraviras v. Lovig, 2011 BCCA 200, at para 35. Where general damages are concerned, the amount is not adjusted to reflect on the conduct of the Defendants, no matter how egregious – that factor comes into play for other heads of damage: Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 SCR 1130, at para. 196.

18Likewise, general damages are not to reflect the trier’s personal sense of sympathy with the ordeal the Plaintiff’s have been through: Andrews, at 242. In a case of this nature, where the circumstances of each Plaintiff and the nature of the harms caused them is unusual and surprising, it is necessary to remember that the quantification of general damages for pain and other suffering is to take what the Court in Andrews, at 161, called a functional approach:

The ... ‘functional’ approach, accepts the personal premise [valuation of the injury in terms of the loss of human happiness by the particular victim]..., but rather than attempting to set a value on lost happiness, it attempts to assess the compensation required to provide the injured person ‘with reasonable solace for his misfortune.’ ‘Solace’ in this sense is taken to mean physical arrangements which can make his life more endurable rather than ‘solace’ in the sense of sympathy.

19This functional approach was further elaborated upon by Cromwell JA (as he then was) in Nova Scotia (Attorney General) v. BMG, 2007 NSCA 120, 133-5, where the principles for assessing damages claims for historic wrongs as articulated by the Supreme Court in Blackwater v. Plint, 2005 SCC 58, [2005] 3 SCR 3, were summarized and applied. These Blackwater factors are relied on by Plaintiffs’ counsel as a foundation for the individual damages claims: (a) the age and vulnerability of the victim at the time of the events; (b) the frequency and severity of the wrongdoing; (c) the position of the defendant; and (d) the consequences for the victim.

20Overall, trial courts must quantify damages with “due regard to the nature of the injury and the purposes of a non-pecuniary award in relation to that injury”: Ibid., at 124. In the case at bar, the Plaintiffs suffered, in different combinations, short term physical injuries in the form of pain endured while in the STU programs and long term psychological harms in the form of protracted and/or exacerbated mental illness. The key to finding the appropriate range of damages for these non-pecuniary losses is to find cases with analogous injuries.

21Counsel for the Doctors submit that this requires that the value of a given comparator case be discounted where the claimant’s injury is to interests not applicable in the Plaintiffs’ cases. For example, none of the Plaintiffs claim damage to reputation as in Hill, supra, or to their intellectual property as in Cinar Corporation v. Robinson, 2013 SCC 73, [2013] 3 SCR 1168. With limited exceptions to be discussed later in these reasons, cases which quantify damages that reflect infringement of those interests do not provide very useful analogies.

22Similarly, cases of wrongful conviction are not generally analogous to the Plaintiffs’ claim, since each of the Plaintiffs was committed to Oak Ridge in the first place pursuant to a valid certificate under the applicable version of the Mental Health Act or a Lieutenant Governor’s warrant upon a finding that they were not fit to stand trial or Not Guilty by Reason of Insanity (“NGRI”), to use the 1960s-70s era phrase. The Courts have indicated in wrongful conviction cases that the deprivation of liberty not in accordance with law is for the most part in a class of its own, and that such cases are only comparable to each other: Henry v. British Columbia, 2016 BCSC 1038, at para 452. The Plaintiffs here were all institutionalized pursuant to the rule of law, and their continued detention or release is within the unchallenged jurisdiction of the Ontario Review Board.

23To be clear, the Plaintiffs were not wrongfully deprived of their liberty; they allege no flaw in the legal process by which they were first institutionalized or continue to be held. In a few exceptional cases, where youthful Plaintiffs were subjected to many years of otherwise unnecessary suffering, the lengthy incarceration periods of wrongful conviction cases can be partially helpful in assessing damages. But it is the lengthy period of psychological turmoil or harm that is relevant, not the deprivation of liberty itself.

24I will also pause to note that ex gratia payments made in settlement of claims with a significant public profile are not relevant to a legal determination of general damages. As the Supreme Court observed in Hinse v. Canada (Attorney General), [2015] 2 SCR 62, at para 153, those payments “did not result from judicial awards and were based on considerations that are very different from those on which damages are based.” The Plaintiffs do not seek an ex gratia payment, but rather submit that they deserve compensation as of right. This substantive difference takes the Plaintiffs’ claims outside of the ambit of the ex gratia examples that Plaintiffs’ counsel has cited in argument.

25As indicated, the aim of the damages phase of the trial is to do “what can be done to alleviate the disaster to the victim” and to determine “what will it cost to enable her to live as tolerably as may be in the circumstances”: Andrews, at 263, quoting Ward v. James, [1965] 1 All ER 563 (CA). It is therefore important to find a range of compensation that is aimed at remedying the type of injuries that the Plaintiffs have actually suffered, and not to borrow from damage awards aimed at remedying an altogether different type of injury or different type of interest infringed.

26With that in mind, the goal is to locate horizontal comparisons not with the type of conduct for which the Defendants are liable, but with the type and context of the suffering endured by the Plaintiffs. The Court is to “to treat like cases alike and unlike cases differently in this fact-driven exercise. This…allows for comparisons between the seriousness of injuries, without the judge becoming a prisoner of past findings by other courts, while at the same time giving full scope to a personalized analysis of each victim’s own situation”: Stations de la vallée de St-Sauveur inc. v. M.A., 2010 QCCA 1509, at para 83. Since the harms inflicted on all of the Plaintiffs took place while they were institutionalized in the STU at Oak Ridge, other cases of physical and psychiatric harms as a result of wrongful treatment while incarcerated or institutionalized are the most relevant comparators.

27Counsel for the Plaintiffs have compared the case at bar to landmark damages claims pertaining to historic wrongs done to Indigenous people in Canada, including the so-called Sixties Scoop and the Residential Schools litigation. They submit that for many of the Plaintiffs, the harm inflicted by the Defendants in the STU programs was devasting and life-altering in a way that is comparable to the uprooting and abuse of Indigenous children as chronicled in those renowned cases.

28In my view, this is a difficult comparison to make. First, the cases about Indigenous children and the Plaintiffs’ cases about their Oak Ridge experiences are each suis generis, making it hard to compare them in a meaningful way. In fact, what Plaintiffs’ counsel are presenting is a comparison between unique historical situations whose point of similarity is their very uniqueness. It stands to reason that unique cases are inherently dissimilar, not similar. Having said that, Plaintiffs’ counsel also seem to me to be overstating their case.

29In Barker Trial I, at para 343, I described the STU programs as “degrading and inhumane”, and they were; but terrible as the STU programs were, they were an anomaly done to a number of individuals in a single institution. There is no sense in which they impacted on an entire population and culture in the way that the Residential Schools program did. Residential schools were run for 100 years in Canada, and have had what the Supreme Court described as an “enduring, harmful legacy” on this country’s Indigenous people as a whole: J.W. v. Canada (Attorney General), 2019 SCC 20, [2019] 2 SCR 224, at para 14.

30Even if one accepts for the sake of argument that the cases are comparable, the claims put forward by the Plaintiffs are unprecedented in their quantum. In the aggregate, they seek general damages of roughly $35 million, income loss of between $7.8 and $11.5 million, and punitive damages in the order of $29 million for a total of $71 to $75 million, averaging $2.5 million per person plus interest. Defendants’ counsel point out that this action began its life as a class action, and had it been certified for the roughly 1,200 patients that went through the STU these numbers would calculate out to an approximately $3 billion claim.

31Counsel for the Defendants submit that this is roughly 10 to 100 times higher than the recovery awarded in the Residential Schools and Sixties Scoop class actions. In the Residential Schools case, each claimant who went through the common experience of the schools received $10,000 for first school year and then $3,000 for each year after that, followed by an independent assessment in which those who suffered sexual or other serious abuses were awarded $5,000 to $275,000 each. Damages for income loss and pain and suffering were capped at a maximum loss of $430,000: Baxter v. Attorney General of Canada (2006), 2006 41673 (ON SC), 83 OR (3d) 481 (SCJ).

32These calculations demonstrate that the Plaintiffs’ claims for general damages are orders of magnitude higher than the Residential Schools claims. As indicated, the cases are not really comparable in substance. However, it is also important to keep in mind the admonishment that there should be “a rough basic uniformity to general damage awards” for comparable cases, and that trial courts do not have “an unlimited scope to award what general damages they will”: Mulroy, supra, at paras 12, 15. In keeping with this need to treat like cases relatively alike, the Court of Appeal has warned that “damages awarded [that are] so inordinately high…call for this Court’s interference”: Ibid., at para 15.

33The importance of context in quantifying a Plaintiff’s loss also tends to make sexual assault cases, on which Plaintiffs’ counsel heavily rely, of only occasional relevance in evaluating their claims. The specific considerations going to compensating claimants for the gender-based degradation and undermining of equality flowing from sexual assaults are not applicable here: R. v. Osolin, 1993 54 (SCC), [1993] 4 SCR 595. Likewise, and again with some exceptions that will be discussed with respect to a small number of the Plaintiffs, the loss of innocence and other emotional harms flowing from childhood sexual assaults have little bearing on most of the Plaintiffs’ claims: D.S. v. Quesnelle, 2019 ONSC 3230 at para 40. Cases with those factual backgrounds are of minimal help in determining the quantification of damages for the majority of the Plaintiffs who were adult males at the relevant time.

34There are, however, a small number of the Plaintiffs who were placed in the STU programs when underage and still at a stage of adolescence rather than adulthood. While all of the Plaintiffs were vulnerable in that they were institutionalized, were suffering from mental illness, and were owed fiduciary duties by the Defendants, those who were youths were harmed in a severe and lifelong manner that deserves particular attention.

35As with abused children, the adolescent Plaintiffs were used by the Defendants who then “effectively discard[ed them] and leaving [them] to deal with the fallout from that horrible mistreatment. [They have] been dealing with a vast assortment of emotional and psychological problems ever since”: Ibid. The Supreme Court of Canada has approved a mode of analysis in particularly egregious cases that proceeds “by comparing [a plaintiff’s] anguish to the similar level of anguish” experienced by others who suffered similarly lengthy and “deep psychological suffering”: Cinar, at para 107-108. In such instances, the factual context in which the harm occurred may be less of a limiting factor in seeking comparator cases, as long as “the harms are similar to those suffered” by the Plaintiffs: Ibid., at para 108.

36Turning to the balance of the Plaintiffs who suffered long-term harm, there are relatively few reported cases that appear at first blush to be analogous to their situation. One reason for this is that the litigation process itself has been such a protracted one. The events at issue occurred between 40 to 50 years ago. The nature of the wrongdoing – i.e. putting the Plaintiffs through abusive, but institutionally and governmentally approved programs prescribed by physicians – took some 30 to 40 years for the Plaintiffs to be sufficiently aware to commence the action. Once commenced, the action for a variety of procedural reasons has taken 20 years to come to trial.

37As a result, the long-term harm for which damages is claimed is future harm from the time of each Plaintiff’s release from the impugned STU programs, but is by now mostly in the past. This claim of compensation for prospective suffering which in real time is now mostly behind us, makes the Plaintiffs’ case a rarity from a timeline point of view.

38That said, one must look beyond the procedurally unusual nature of the case to the substance of the claims. Long-term harm in the sense of life-long injuries is certainly a feature of many personal injuries cases, including those dealing with losses sustained during incarceration or institutionalization.

39For example, in Singer v. Corporation of the City of Hamilton, 2007 46251 (SCJ), a widow who was already in a vulnerable state grieving the recent passing of her husband fell into a ditch on a construction site and suffered a serious fracture causing severe pain, immobility, and mental distress that including depressive episodes resulting in a suicide attempt. Her depression then led to a life-long mood disorder that entailed numerous recurring symptoms that the Court described, at para 62: “poor appetite or overeating, insomnia or hyperinsomnia, low energy or fatigue, low self-esteem, poor concentration, difficulty making decisions, and feelings of hopelessness.” For this level of substantial long-term suffering, the Court awarded $45,000 in general damages (or just over $55,000 as adjusted for inflation).

40Another case closer in factual context to the case at bar is Iwanicki v. Ontario (Minister of Correctional Services), 2000 CarswellOnt 860 (SCJ), where an inmate at Mimico Correction Centre sought damages against the Ontario Crown for harm suffered when severely beaten in prison. In language reminiscent of the claims of some of the Plaintiffs here, the Court found, at para 34, that the experience had “dramatically changed [the claimant’s] personality from that of a fun-loving extrovert to that of an introverted, unhappy and depressed person. In addition, it significantly hampered the progress he was making with his drug rehabilitation.” The Court’s assessment was that this long-term psychological harm, together with the short-term pain and suffering of the beating itself, deserved compensation in the range of $80,000 (just under $115,000 as adjusted for inflation).

41Turning to a more moderate scale of long-term harm, in Row v. British Columbia (Attorney General), 2006 BCSC 199, an inmate at a B.C. remand facility sought compensation from the provincial Crown for injuries sustained in a jailhouse beating. The incident caused him a fractured skull and cranial lacerations, as well as, at para 49, debilitating headaches, a “decrease in mental awareness, although a CT scan does not show any significant brain damage... [and] post-traumatic stress disorder flowing from the assault, which contributes to his symptoms of paranoia and depression.” For this range of long-term suffering, the British Columbia court awarded damages in the amount of $35,000 (or just over $44,000 adjusted for inflation). It is noteworthy that, like some of the Plaintiffs here, the claimant was eventually diagnosed with post-traumatic stress disorder and exhibited symptoms of depression and paranoia.

42As an illustration of damages for more mild long-term injuries, in Moretto v. Nicolini-Femia, 2017 ONSC 3945, a young girl was permanently disfigured by a dog bite in the face, which a medical report showed was getting more pronounced over time. The Court found, at para 60, that the claimant also suffered “some psychological sequelae resulting from the dog bite incident, including some period of nightmares and flashbacks, a phobia of dogs and certainly embarrassment and some loss of self-esteem and confidence as a result of the actions and comments of peers concerning the scar”. In these circumstances, general damages for the physical injury were assessed at $40,000 and general damages for the psychological harm assessed at $5,000 (just over $42,000 and $5,200, respectively, as adjusted for inflation).

43Turning to cases of severe short-term injury, perhaps the most severe case is that of Mitchell v. Block, 1995 9028 (AB QB), in which a psychiatric patient suffered horrendous physical pain, including blistering from head to toe necessitating the removal of 80% to 90% of the skin of her body and the addition of a layer of latex stapled over the expire exposed area, as a result of an allergic reaction to medication. She also suffered psychological torment as a result of being advised by her doctors that she was likely about to die. While the Plaintiffs in the present case each to one degree or another suffered short term pain and anguish in the three STU programs, it is difficult to find any case anywhere (or, for that matter, to imagine one) that compares with the level of short-erm pain suffered in Mitchell. The Court indicated that had the defendants been liable it would have awarded for this short-term pain and suffering a total of $40,000 (just over $62,000 adjusted for inflation).

44Another case of severe short-term injury is Weafer v. Vancouver Coastal Health Authority, 2007 BCSC 481, a patient hospitalized for back surgery was given an overdose of the painkiller Ketamine. In a scenario that has some parallels with the Plaintiffs who had adverse reactions to drugs in Oak Ridge’s DDT program, he had a nightmarish and potentially fatal experience. As he described it, at para 33, he woke up from surgery in the hospital’s ICU with a “[d]octor standing around asking who I was, where I was, I said I just saw God and was fighting for my life.” The trial judge found, at para 131, that “[t]he near death experience was terrifying and it was well documented that it is one of the side effects of Ketamine”, and that as of the incident the claimant “suffered a great degree of stress and anxiety”. In the result, the Court awarded him $55,000 (over $67,000 adjusted for inflation) in general damages.

45An award for intense, short-term injury is also illustrated in Eng v Corrections Canada, 1997 CarswellNat 510 (Fed Ct), where an inmate in a federal penitentiary was seriously injured in an attempted murder in which he had his neck slashed with a razor blade. The claimant testified, at para 31, that the pain from his injuries continued for about a year, with some residual paralysis of the tongue and lingering psychological harm including “anxiety, headaches, and occasional sleeplessness flowing from recollections of the attack.” While the Plaintiffs here have not suffered the type of physical assaults that the claimant in Eng endured, the short-term, severe pain experienced in the STU programs is analogous to an intense prison assault whose pain lingers for a year or more. The Court in Eng valued the claimant’s damages at $25,000 (or just under $38,000 adjusted for inflation).

46For moderate short-term harm suffered in incarceration settings, the damage awards have been generally low. In Abbott v. Canada, [1993] FCJ No 673 (Fed Ct), an inmate at Collins Bay Penitentiary was falsely accused of being involved in a prison fight, shot by guards with buckshot, and held in solitary confinement for 100 days. He sought damages against Corrections Canada for assault and battery, negligence, unlawful confinement and cruel and unusual punishment. In introducing the damages analysis, at para 161, the Court commenced with an observation that is apt to the case at bar: “Assessing damages is never an easy task, made less so by the fact that the person claiming the damages is a 28 year old inmate who has been in and out of prisons for various offenses since he was about sixteen.”

47After surveying analogous cases, the Court in Abbott awarded general damages divided into a number of different categories. Specifically, the award consisted of $1,000, or $10 per day ($16 per day adjusted for inflation) for the improper segregation, $1,000 ($1,600 adjusted for inflation) for the pain and suffering of being shot with dozens of pellets of buckshot, and $10,000 (just over $16,000) in exemplary damages in respect of the malice shown by the corrections officers in punishing an inmate they knew not to be culpable in the altercation that started the incident.

48Claims of false imprisonment flowing from wrongfully holding inmates in segregation tend to run in the range of $16 to $26 per day in 2020 dollars where the claimant suffers psychological deprivations from being alone for extended periods of time, is deprived recreational activities, and is left without being told how long he will remain in segregation: see Saint-Jacques v. Canada, 1991 CarswellNat 353 (Fed Ct); Grenier v. The Queen, 2004 FC 132. These amounts have been deemed appropriate where, as in Eng, at para 43, the claimant “suffered considerable pain and suffering” but his recovery was all but complete and the evidence does not reveal any longer term harm.

49The incarceration or involuntary institutionalization context of the cases is of some significance in assessing the quantum of damages. As the Court said in Grenier, at para 86, “[i]t must be borne in mind that if he had not been kept in administrative segregation the plaintiff would not have been at liberty like any law-abiding individual, but would still have been an inmate in a penitentiary.” The same consideration applies to the Plaintiffs here, as they were all legally confined to the Oak Ridge maximum security institution and would have been there even if the STU programs had not been in existence.

50Turning to compensation for mild short-term harm, the cases for the most part reveal compensation at a level somewhere under $10,000. In O’Shea v. Vancouver (City), 2015 BCPC 398, an inmate in a municipal detention facility was placed in a restraint called the “Hobble” which, like some of the restraints described in the evidence in Barker Trial I, appears to have been designed for maximum discomfort. The British Columbia court observed in O’Shea, at paras 113 and 115, that the Hobble entailed “sitting in a semi-prone position with one’s hands cuffed in the back and one’s ankles crossed with a strap wrapped around them, which is then pulled tightly after it is passed under the cell door, and held in place with a wood block…positioned on a concrete floor”, and that the claimant “felt her ‘feet would come off’”. The Court assessed general damages for short term physical pain, which also exacerbated the claimant’s anxiety and other mental health problems, at $9,000 (just over $9,700 adjusted for inflation).

51Similarly, in McMaster v The Queen, 2009 FC 937 (Fed Ct), an inmate at Collins Bay incurred what is described, at para 64, as “a tear in the medial meniscus in his right knee” due to the failure of corrections staff to supply him with adequate footwear. In an action for damages for misfeasance in public office, the Court awarded the claimant $9,000 for the wrongful conduct of the facility’s personnel in causing him short term pain. That figure was then reduced to $6,000 (just over $7,000 adjusted for inflation), to take into account the claimant’s own contributory negligence in engaging in vigorous exercise without properly fitting footwear. Like a number of the Plaintiffs here, the claimant apparently made a full recovery but was found to have endured pain and suffering at the time of the injury and for the ensuing healing period.

b) Damages cap

52In Andrews, supra, at 265, the Supreme Court indicated that a cap on general damages was necessary even for catastrophic personal injury claimants, and set the limit for such damages at $100,000. As the Court put it, at 248, the argument against unlimited general damages awards is that “the social cost is too high. In these days the cost is distributed through society through insurance premiums.”

53This idea was further elaborated upon by the Supreme Court in Hill, supra, where the Court explained in a personal injury case, the plaintiff is typically compensated for not only lost income (past and estimated future loss) but also the cost of medical care (past and estimated future). It went on to state that prior to the Andrews cap being imposed, “[t]he size and disparity of assessments was affecting insurance rates and, thus, the cost of operating motor vehicles and, indeed, business of all kinds throughout the land”: Ibid., at para 168.

54The policy considerations underlying the damages cap do not apply here. The suis generis nature of the STU programs, which ended in the early 1980s and have never been repeated, do not compare with the ubiquitous nature of motor vehicle accidents, however catastrophic the results may be. Plaintiffs’ counsel point out that since damage awards in cases of institutional abuse or physicians’ breach of fiduciary duty are infrequent in Canada, a cap is unnecessary to control disparity of assessments or a burden on insurance premiums for psychiatric institutions and physicians. The social cost, as the Supreme Court put it, of a damages award in this unique case is not the same as one in which the insurance industry must continuously spread losses throughout a society in which the vast majority of drivers are insured.

55Moreover, since general damages are formulated to replicate the injured person’s pre-injury standard of life, uncapped awards were seen in Andrews, at 262, to overlap with cost of care awards thereby creating a windfall to claimants. The Plaintiffs have suffered psychiatric rather than physical injuries, and are bringing their claim some forty years after the harmful events; as a consequence, they do not make cost of care claims. Accordingly, the concern about double compensation is also not applicable in the case at bar.

56In addition to all of that, appellate courts have repeatedly held that claims such as the Plaintiffs’ – i.e. those concerning breach of fiduciary duty and intentional wrongdoing – are not limited by the Andrews cap. Again, the reason for this is that the policy issues identified in Andrews and Hill necessitating the cap do not arise. In S.Y. v. F.G.C., 1996 6597, at para 30, the British Columbia Court of Appeal observed that the policies underlying the Andrews cap did not arise in sexual abuse and other intentional tort and fiduciary duty claims:

I am not persuaded that the policy reasons which gave rise to the imposition of a cap in “the trilogy” have any application in a case of the type at bar. In my opinion the differences described by Cory J. [in Hill v. Church of Scientology] exist in this case as well. The policy considerations which arise from negligence causing catastrophic personal injuries, in the contexts of accident and medical malpractice, do not arise from intentional torts involving criminal behaviour. There is no evidence before us that this type of case has any impact on the public purse, or that there is any crisis arising from the size and disparity of assessments. A cap is not needed to protect the general public from a serious social burden, such as enormous insurance premiums…

In contrast, sexual abuse claims do not usually result in awards guaranteeing lifetime economic security. In the catastrophic personal injury cases, awards under other heads of damages are so high that there may be a lesser need for general damages to provide solace and to substitute for lost amenities. In some cases, sexual abuse victims may require and deserve more than the "cap" allows, due to the unpredictable impact of the tort on their lives. Judges, juries and appellate courts are in a position to decide what is fair and reasonable to both parties according to the circumstances of the case.

57In Young v. Bella, 2006 SCC 3, [2006] 1 SCR 108, the Supreme Court expressed similar reasoning in a unique claim in which a professor of social work erroneously interpreted an uncited case study attached to a student paper to be a veiled autobiographical confession of child abuse and reported the abuse to the police and child protection services. After discovering the false allegation, the student claimed damages for the anxiety, paranoia, depression and other injuries suffered as a consequence. The Supreme Court declined to apply the Andrews cap and upheld the jury’s award of $430,000 in general damages, noting, at para 66, that “a cap is not needed to protect the general public from a serious social burden, such as enormous insurance premiums.”

58The same line of reasoning followed by the Supreme Court in Cinar, supra, which upheld an award of general damages exceeding the Andrews cap for psychological harm in a case of copyright infringement. In that case, the defendants stole a concept for a children’s television show in breach of copyright and contrary to obligations of good faith and loyalty under the Quebec Civil Code. The Court upheld the assessment of $400,000.00 in general damages for the plaintiff’s shock, depression, decline in physical health, and psychological suffering caused by the theft. In doing so, she reiterated that the Andrews cap is inapplicable to general damages of this nature: Ibid., at para 97. As with the Plaintiffs’ claims here, the unique context of the wrong, the intentionality of the wrongdoer, and the fact that there are few, if any, social costs or society-wide insurance implications to the claim, negated the rationale for a damages cap.

c) Aggravated damages

59Aggravated and punitive damages are separate categories in that they address different aspects of the wrong for which the Defendants are liable to the Plaintiffs. The latter are defined as a form of punishment of a Defendant: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at para 36. The former, on the other hand, are defined as part of a Plaintiff’s compensation: Plester v. Wawanesa Mutual Insurance Company, 2006 17918, at para 62 (Ont CA).

60That said, they both derive from the same conduct by the Defendant – that is, they are both imposed as a result of conduct that is “malicious, oppressive and high-handed…[and that] offends the court’s sense of decency”: Hill, supra, at para. 196. While the purpose of punitive damages is to punish, deter, and denounce the Defendant and his wrongdoing, Whiten, at para 43, and the purpose of aggravated damages is to compensate the Plaintiff for having suffered humiliation, indignity, and degradation as a result of the wrong, Plester, supra, at para 64, they each examine the same evidence with respect to the Defendant’s actions and intentionality. The common threshold question is whether the Defendant was “aware, or ought reasonably to have been aware, that the plaintiff was [suffering harm]”, it is logical to consider them if not jointly then in close proximity to each other: Warrington v. Great-West Life Assurance Co., 1996 1443 (BCCA).

61“Aggravated damages are awarded…when the reprehensible or outrageous nature of the defendant’s conduct causes a loss of dignity, humiliation, additional psychological injury, or harm to the plaintiff’s feelings”: McIntyre v. Grigg, 2006 37326 (ON CA), 83 OR (3d) 161, at para. 50 (Ont CA). As Professor Waddams explains it, they reflect “an award that aims at compensation, but takes full account of the intangible injuries, such as distress and humiliation, that may have been caused by the defendant’s insulting behaviour”: Vorvis v. Insurance Corporation of British Columbia, 1989 93 (SCC), [1989] 1 SCR 1085, at para 18, quoting S. Waddams, The Law of Damages (2nd edn, 1983), 562, at para 979. They take account of the “natural indignation of right-thinking people arising from the malicious conduct of the defendant”: Hill, supra, at para 192. It is Plaintiffs’ counsel’s position that, given the extreme and harmful nature of the STU programs, all of he Plaintiffs’ injuries fall into this category.

62As with general damages, aggravated damages are to be assessed Plaintiff-by-Plaintiff, matching a specific Defendant’s conduct with the harms suffered by a specific Plaintiff. “There cannot be joint and several responsibility for aggravated damages because they can only arise from the misconduct of a particular defendant”: A.(C.) v. C.(J.W.), 1998 9129 (BC CA), 60 BCLR (3d) 92, at para. 122 (BCCA). Accordingly, an analysis of aggravated damages follows the same as the general analysis of general damages, with the added question of whether the acts for which a specific Defendant is liable to a specific Plaintiff are “high-handed”, resulting in “recklessly exposing a vulnerable plaintiff to substantial risk of harm without any justification”: McIntyre v Grigg, 2006 37326 (ON CA), 83 OR (3d) 161, at para 60 (Ont CA).

63Counsel for the Plaintiffs have not tended to seek aggravated damages as a distinct claim or category of loss. Rather, they seek general damages at the high end of the scale for each individual Plaintiff. They submit that in that way the general damages awards will cover in a proper way the extensive harms that the Plaintiffs each suffered as a result of their STU experiences. In combination with this, they seek a large punitive damages award for each Plaintiff as a way of expressing the legal system’s disapproval of the Defendants’ conduct and of deterring similar conduct in the future.

64Accordingly, although the Plaintiffs have not put aggravated damages before the Court as a distinct category of damages, the case law addressing them is relevant here. In the first place, it illustrates the types of harm to plaintiffs that can lead to the highest levels of compensatory awards; and, in the second place, it describes the type of conduct by defendants that can attract a punitive award.

d) Punitive damages

65The Court of Appeal has most recently made clear that “punitive damages must arise from the particular conduct of the defendant against whom they are awarded”: Krieser v. Garber, 2020 ONCA 699, at para 105. They are not to be awarded on a collective basis or effectively treat all of the Defendants as one. Thus, while the focus of punitive damages is on the Defendants’ conduct and not the Plaintiffs’ losses, the assessment must be done on a claim-by-claim basis to ensure that the specific wrongs, and not the global wrongfulness of all Defendants, are being addressed: Mainland Sawmills Ltd. v. U.S.W. Local 1-3567, 2007 BCSC 1433, at para. 334.

66Accordingly, it must be clear in each case what role the particular Defendants played in the STU treatment of the particular Plaintiff, since there can be no joint and several awards of punitive damages: Hill, at para 195. Once that individualized assessment process is complete, the Court may then take into account “the aggregate amount to ensure that the total amount does not exceed what is required to achieve the goals of deterrence and denunciation”: Ibid.

67On this note, I will reiterate my finding in Barker Trial I, at paras 1268-69, that the Crown is directly liable to the Plaintiffs for the acts of five Oak Ridge officials named in the Plaintiffs’ pleading. These include Drs. Barker and Maier as well as Penetanguishene medical superintendent Dr. Barry Boyd, and later STU directors Dr. Doug Tate and Dr. Julia O’Reilly. These five held decision-making authority on behalf of the Crown as operator of Oak Ridge at the relevant times.

68The acts of the five named Oak Ridge decision-makers are, of course, their own individual responsibility, but are also for the purposes of this case the acts of the Crown as the body responsible for the Penetanguishene mental hospital and its Oak Ridge division: Barker Trial I, at paras 19, 1213-18. One or more of them was directly involved with each of the Plaintiffs’ treatment at issue here, and accordingly the Crown was found liable for to each of the Plaintiffs either jointly and severally with Dr. Barker and/or Dr. Maier or on its own: Ibid., at para 1328. That liability, whether sole or joint and several, is reflected in the general damages and income loss damages awards.

69As for punitive damages, the case law has established that “there cannot be joint and several responsibility for either aggravated or punitive damages since they arise from the misconduct of the particular defendant against whom they are awarded”: Hill, supra, at para 195. Thus, where the Crown is found liable for punitive damages, that liability must be based on the acts of one of the five institutional actors mentioned above. Where those acts are those of Dr. Barker or Dr. Maeier, the Crown shares responsibility with the individual Defendant who acted in two distinct capacities. For punitive damages awards, the Crown’s portion and the individual’s portion must be the subject of a specific finding and the punitive damages must be awarded to each Defendant accordingly. The Defendants cannot all be treated “as one”: Krieser, supra, at para 105.

70The Supreme Court of Canada has admonished lower courts that “the discretion to award [punitive damages] should be most cautiously exercised”: Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 SCR 362, at para 68. It is not enough that the Defendants’ conduct be wrong in law; it must be offend the Court’s sense of decency to an extent that prompts a need for particular condemnation and deterrence: Smith v. Inco Limited, 2010 ONSC 3790, at paras 331-2.

71In general, conduct that is lawful, even if offensive, does not attract punitive damages: Nurse v. Canada, 1997 CarswellNat 845, at para. 31 (Fed Ct). In addition, conduct that while unlawful and actionable is done in good faith does not attract punitive damages: Jonasson v. Nexen Energy ULC, 2019 ABCA 428, at para. 2. In Whiten, supra, at para 113, the Supreme Court provided a list of factors applicable to a determination of the “blameworthiness” of a Defendant’s conduct for the purposes of punitive damages. These include [citations omitted]:

a) whether the misconduct was planned and deliberate;

b) the intent and motive of the defendant;

c) whether the defendant persisted in the outrageous conduct over a lengthy period of time;

d) whether the defendant concealed or attempted to cover up its misconduct;

e) the defendant’s awareness that what he or she was doing was wrong;

f) whether the defendant profited from its misconduct;

g) whether the interest violated by the misconduct was known to be deeply personal to the plaintiff …or a thing that was irreplaceable…

72In characterizing Dr. Barker’s intentions in designing and implementing the STU programs, the Plaintiffs’ expert, Dr. Bradford, described a set of “mixed messages” – i.e. both positive and negative insofar as patient care was concerned. On one hand, I noted in Barker Trial I, at para 31, that Dr. Barker himself conceded the fundamentally invasive and cruel quality of the programs when he described them in his writing as resembling the actions of “Storm Troopers”. On the other hand, I noted in the very same paragraph that Dr. Barker saw his ultimate goal as devising “the treatment necessary to produce some remission of the illnesses suffered by most Oak Ridge patients”.

73The same duality can be said of Dr. Maier when he assumed the mantle for the STU programs. On one hand, I noted in Barker Trial I, at para 135, that Dr. Maier’s own writings revealed the STU programs to be contrary to the medical ethics of the time and that medical journals would not publish his studies of the STU programs for fear of “inciting ethical controversy”. On the other hand, the very fact that Dr. Maier sought to publish his articles about the STU displays transparency and, perhaps, a certain benevolence in his own view of what he was doing with the programs. While it is possible that this attitude was one of wilful blindness, I ultimately found, at para 1212, that “the intention to cause harm – is not established on the evidence adduced at trial.”

74In Barker Trial I, at para 1212, I came to the conclusion that, “The Doctors created and ran a bad set of programs, but with intentions that were not quite as bad as the programs.” The evidence also made it clear that the programs had the full approval of not only Dr. Boyd and the Penetanguishene administration, but the government of Ontario as both regulator and public body ultimately responsible for the institution. There was no coverup of the STU programs, and I found no ulterior motives on the part of the Doctors – no personal profit or professional aggrandizement came of them. Moreover, there is no indication that the Doctors persisted in carrying on the programs once the government indicated that they were to be shut down. To the contrary, the Ombudsman’s office, in a series of reports, gave what was essentially a seal of approval for the programs during their active lifetime.

75Accordingly, the programs were harmful and wrongful, and give rise to compensatory damages. Without something more, however, there is no evidence on which to base an award of aggravated or punitive damages. This is particularly the case where the evidence shows that a significant amount of the pain and suffering of a given Plaintiff comes from sources which are independent of the Defendants’ breach of their rights: Fidler v. Sun Life Assurance Co. of Canada, 2004 BCCA 273, at para 42.

76For the underage Plaintiffs, there is something more that is lacking for the adult patients. For these youths, the STU programs caused intense personal pain at a level which would shock the conscience of the public had the age of the individuals been the focus of attention. Knowing their age and their extreme adolescent vulnerability, the conscience of the responsible Defendants ought to have been shocked as well. From both an aggravated and punitive damages point of view, it is significant that this intense suffering was directly linked to the pressure that the Defendants knew or ought to have known they were imposing: Ibid., at paras 42-43.

77In Jonasson, supra, the Supreme Court lists as its final condemnatory practice the depriving by a Defendant of something “known to be deeply personal to the plaintiff …or a thing that was irreplaceable…” For the youngest and most vulnerable of the Plaintiffs, it was not difficult to perceive that the STU programs were effectively depriving them of the most irreplaceable thing of all – their youth and the chance of achieving mental health beyond the psychological problems with which they entered Oak Ridge. In those particular instances, aggravated damages reflecting the extreme hurt of the individual Plaintiffs would seem to be warranted.

78Beyond that, however, a public program authorized by government, described in detail for the medical community by the Defendants in scholarly journals, exposed to the media by the Doctors and the Oak Ridge administration, and conceived – wrongly but sincerely – to be for the ultimate medical benefit of the patients – is not what aggravated or punitive damages are aimed at. While the disregard of the individual patient’s pain may be beyond the pale for the most youthful of the Plaintiffs, the albeit misguided good faith of the Defendants toward the adult Plaintiffs makes aggravated and punitive damages inapplicable.

79In terms of quantum, the Supreme Court of Canada has instructed that for aggravated and punitive damages, the relevant question is what is the lowest award that would serve the purpose…because any higher award would be irrational”: Whiten, at para 71. With this in mind, “the governing role for quantum is proportionality”: Ibid., at para 74. As with general, general damages, the measurement of aggravated and punitive damages is to be done in relation to other comparable cases. In Whiten, at para 4, a punitive damages award of $1,000,000 – possibly the highest ever awarded in Canada – was said to be at the “upper end” of what is proportionate to the nearly $700,000 in compensatory damages awarded in that case.

80Where the youthful Plaintiffs are concerned, the court can have some eye to aggravated and punitive awards given to other young victims of abuse or other parties whose life-long ambitions were destroyed by the wrongdoer. It is also of significance that the intense level of harm inflicted on the youngest of the Plaintiffs was done not only by a responsible fiduciary, but by a public institution to which they were involuntarily committed. These institutions have a particularly important duty toward youth that have been removed from their families that must be reflected in both the aggravated and punitive aspects of their damages awards.

e) Remoteness and Ex turpi causa

81As I indicated in Barker Trial I, at para 1188, for breaches of fiduciary duties questions of remoteness and foreseeability are addressed not at the liability phase of the trial but in the damages phase. This follows the Supreme Court of Canada’s instruction that, “Equity addresses such questions under the heading of remedy or damages once the existence and breach of a fiduciary obligation have been established”: Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 SCR 83, at para 48.

82Accordingly, it is analytically necessary that a Court “recognizes the distinction between finding a breach of fiduciary obligation and remedying the consequences of that breach”: Ibid., at para 49. The way to do so, the Supreme Court says, is for the trial or other adjudicative body to [consider] the principles governing equitable compensation for loss flowing from a breach of fiduciary duty during the compensation phase of its proceedings”: Ibid., at para 50.

83As with damages assessment more generally, the question of remoteness must be addressed on a Plaintiff-by-Plaintiff basis. However, there are some fundamental principles that apply to all remoteness analyses. The Supreme Court of Canada confirmed in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 SCR 114, at paras. 12, 15, that the essential test for remoteness of damages is foreseeability:

The remoteness inquiry asks whether ‘the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable’. Since The Wagon Mound (No. 1), the principle has been that ‘it is the foresight of the reasonable man which alone can determine responsibility’… To put it another way, unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable.

84The Court of Appeal has indicated that the test that applies where tort liability is found applies equally where liability for an equitable wrong such as breach of fiduciary duty is found. As the Court has put it in Stirrett v. Cheema, 2020 ONCA 288, at para 68:

[W]hen considering equitable compensation, or damages, the fiduciary breach must have been the cause in fact – the effective cause – of the loss in respect of which compensation is sought. There is of course a difference between the right to a remedy, and the assessment of damages. Causation in fact is relevant to the first issue. Legal causation, which incorporates limiting factors such as remoteness, proximity, foreseeability, and intervening act, is part of the second issue.

85Thus, “even where a duty of care, a breach, damage and factual causation are established, there remains the pertinent threshold question of legal causation, or remoteness”: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 SCR 543, para 20. The question at this stage is to determine “what a person of ordinary fortitude would suffer”: see White v. Chief Constable of South Yorkshire Police, [1998] 3 W.L.R. 1509, 1512 (HL). As McLachlin CJ put it in Mustapha, at para 16, the law “imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance.”

86Reasonable foreseeability cannot be determined in the abstract, but rather must be considered in the specific factual context of the particular Defendant and the particular Plaintiff. “The proper question to be asked in this context is whether the type of harm suffered – personal injury – was reasonably foreseeable to someone in the position of the defendant”: Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, [2018] 1 SCR 587, at para 26. Thus, for example, it was certainly foreseeable – indeed, was easily foreseeable – that a given Plaintiff might have suffered short-term pain and anguish in any of DDT, the Capsule, or MAPP. It might also have been reasonably foreseeable that putting some of the Plaintiffs through that type of anguish might have longer term effects on their trust in psychiatric medicine, their ability to re-integrate into society, and their ability to have stable relationships and/or a stable economic life. That will turn on the particular circumstances of the Plaintiff and the particular experiences which he or she endured in the STU programs.

87Counsel for the Doctors also argue that it was specifically not reasonably foreseeable that any of the Plaintiffs would in the future, years after their release from the Oak Ridge, recidivate and commit violent crimes as a result of their STU experiences. In making this argument they refer to Wade v. Canadian National Railway, 1977 194 (SCC), [1978] 1 SCR 1064, where a child playing near a set of railroad tracks ran toward the train and attempted to jump onto it, losing a leg in the process. The Court found that no one could have reasonably predicted what the child would do, and so the damages claim advanced on the youth’s behalf was remote.

88The way the Court put it in Wade raises the spectre of endless liability for institutions: “To find fault on the part of the railway in those circumstances is really to say that, in law, the railway is the insurer of all persons coming onto its land”: Ibid., at para 50. The Doctors submit that as a policy matter, awarding damages based on the failure to predict the erratic behaviour of some of the Plaintiffs is too heavy a burden to place on a state institution or, for that matter, on themselves as physicians. They therefore rely on the Court of Appeal’s admonishment in Tacknyck v. Lake of the Woods Clinic, [1982] OJ No 170, at para 29, that, “The doctor should not be made the insurer of his patients' health and well-being.”

89The Doctors further submit that they are not, and never have been, the decision makers who determine when and under what conditions the Plaintiffs were released from Penetanguishene. That was the responsibility of the Ontario Review Board and in all cases was done in accordance with its formal decision-making process. It is the Doctors’ view that holding them accountable for recidivism on the part of the Plaintiffs is a misdirection of responsibility and a second-guessing of Review Board decisions.

90With the greatest of respect, I cannot agree with the Doctors’ position. In terms of foreseeability, the Doctors, as the responsible psychiatrists in a maximum-security mental hospital, are not in the same position as the defendant railroad in Wade, who had no particular relationship, either professional or otherwise, with the injured child except for the happenstance of the child’s proximity to its train station. The Doctors and the Crown, by contrast, are statutorily, professionally, and institutionally responsible for the Plaintiffs in virtually every respect. Foreseeing the long-term impact of the supposed therapy that they meted out in the STU is an integral part of their professional and institutional duties. The Doctors, as authorized by the Crown as the authority responsible for Oak Ridge, not only designed and implemented the three programs, but they specifically chose the Plaintiffs for participation in them. The Defendants were fully aware of the psychiatric diagnoses of each of the Plaintiffs when they assigned them to the STU, and ought reasonably to have foreseen what the stress of the programs could potentially do to them.

91Indeed, if the Defendants failed to foresee the eventual violent consequences of programs specifically designed to break down the minds of their patients, their breach of fiduciary duties is all the more egregious. The Plaintiffs’ experts, Dr. Bradford and Professor Dickens, testified that the programs were in essence human experimentation and the way they were implemented violated the ethical norms of their day; the consequences for the Plaintiffs of these breaches ought to have been foreseen by the Doctors and the Crown. While one must nevertheless analyze the foreseeability question on a case-by-case basis for each Plaintiff, future violence and recidivist criminality cannot be generally ruled out as being beyond reasonable foreseeability.

92As for the Doctors’ point about release of a patient from Penetanguishene being up to the Review Board, that, respectfully, is a red herring. The Plaintiffs’ claim is not that they were released when they ought not to have been released or that the Review Board erred in allowing them to cascade down the chain of institutions and eventually into the community. Rather, the claim of a number of the Plaintiffs is that the STU programs planted in them the potential for future violence even when unnoticed at the moment of their release.

93The Defendants, as designers and implementers of the programs, ought to have foreseen this possibility, but the Review Board had no way of doing so if not so advised by the Defendants. The damages claims of the recidivist Plaintiffs are based on the STU programs being the catalyst for their future crimes; the Review Board is no more responsible for that than is the court that found them NCR (or rather, NGRI) and sent them to Oak Ridge in the first place. It was the STU programs that were, in Dr. Barker’s words, “the goad to freedom”, and that in Dr. Maier’s words, inflicted “suffering…as the source of re-creativity”; Barker Trial I, at paras 37, 38. What they reasonably ought to have foreseen is that some of their patients would be goaded by their suffering into a dangerous and violent way of re-creating their mental illness in the future.

94Having said all of that, there is one legal policy that may render the foreseeability point moot when it comes to claiming damages for the recidivist offenses by some of the Plaintiffs. The doctrine of ex turpi causa stands in the way of recovering compensation for the time spent incarcerated or institutionalized due to recidivist crimes. The Defendants and the Plaintiffs agree in their respective written submissions that, at the very least, this rule “precludes an award of income loss for the duration of time that a Plaintiff was incarcerated as a result of violent recidivism”. This would apply to any instance in which I found in Barker Trial I that recidivism leading to a criminal conviction was caused in whole or in part by the STU.

95To be clear, the ex turpi causa doctrine operates separate and apart from any determination of liability and causation – the issues in the first phase of this trial. It is a judicial policy that is triggered to prohibit a damages award (or part of a damages award) after a finding of causation and liability has been made. “The courts make it clear that the defendant has acted wrongly in negligently causing harm. They also make it clear that responsibility for this wrong is suspended only because concern for the integrity of the legal system trumps the concern that the defendant be responsible”: Hall v. Hebert, 1993 141 (SCC), [1993] 2 SCR 159, 182.

96In their oral submissions, Plaintiffs’ counsel argued that if ex turpi causa is relevant to any of the Plaintiffs’ claims it should have been argued at the first phase of the trial, and not at the damages phase. That viewpoint, however, does not conform with the way the doctrine works. The strict logic of the law might find liability where a subsequent offense committed by a Plaintiff is found to have been caused by the actionable conduct of a Defendant; nevertheless, at the quantification of damages stage the ex turpi principle comes into play with a view to “preserving the administration of justice from the taint that would result from the approval of a transaction that a court ought not to countenance”: Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 SCR 226, 316.

97Ex turpi causa is therefore treated by the Supreme Court of Canada as a post-liability/post-causation policy. In the context of the present trial, it is appropriate to address it in the damages phase. This timing of the issue creates no prejudice to the Plaintiffs. The issue is one of legal argument, and references evidence already in the record. Counsel for the Defendants made submissions on the ex turpi case law in their Responding factum, and counsel for the Plaintiffs made fulsome submissions on the issue in their Reply factum. Both sides made oral submissions on the issue at the trial as part of their closing submissions.

98The Supreme Court’s most recent explanation of the ex turpi rule is found in British Columbia v. Zastowny, 2008 SCC 4, [2008] 1 SCR 27. The plaintiff in that case had been sexually abused while in provincial custody, which caused him upon release to perpetrate a series of offenses resulting in his subsequent incarceration. Justice Rothstein explained, at para 20, that ex turpi causa “allows for segregation between claims for personal injury and claims that would constitute profit from illegal or immoral conduct or the evasion of or a rebate of a penalty provided by the criminal law.” He went on to reason, at para 22:

In my view, therefore, the ex turpi doctrine bars Zastowny from recovering damages for time spent in prison because such an award would introduce an inconsistency in the fabric of law… When a person receives a criminal sanction, he or she is subject to a criminal penalty as well as the civil consequences that are the natural result of the criminal sanction. The consequences of imprisonment include wage loss… In my view, therefore, the ex turpi doctrine bars [the plaintiff] from recovering damages for time spent in prison because such an award would introduce an inconsistency in the fabric of law.

99Counsel for the Doctors submit that this reasoning, which was applied to subsequent incarcerations, applies equally to prohibit damages being awarded to a Plaintiff for time spent involuntarily institutionalized pursuant to an NCR verdict or a determination that the Plaintiff is not fit to stand trial. Counsel for the Plaintiffs objects to what they view as this extension of the ex turpi principle, making the self-evident point that the presumption of innocence means that an NCR or similar verdict does not connote guilt.

100During final submissions, I asked Plaintiffs’ counsel if they had a case that illustrates that damages can be awarded for wrongdoing that ultimately prompts violent conduct such as a killing or a sexual assault where the individual is institutionalized in the aftermath of committing the violence. Plaintiffs’ counsel could not come up with a case. That does not surprise me. Whether the verdict is guilty and the result is incarceration or the verdict is NCR and the result is involuntary institutionalization, it is hard to imagine a circumstance where a court would award damages for the act of killing or sexually assaulting. I found that the STU programs may, for some of the Plaintiffs, have been a catalyst to violence; but paying compensation to the perpetrator of violence for that very act of violence seems antithetical to the law.

101In responding to the Plaintiffs’ claims, the Doctors’ counsel rely on the House of Lords’ judgment in Gray v. Thames Trains, 2009 UKHL 33, in which the claimant suffered psychiatric harm in a railroad accident caused by the defendant and as a result later killed a person unrelated to the accident. As is done in the British system (but not in the Canadian), he was both convicted of the criminal offense and then detained in a hospital pursuant to an order under the Mental Health Act (UK). The claimant sought compensation in damages the period while institutionalized in the mental hospital. The House of Lords held that awarding general and income loss damages for the period of institutionalization would be contrary to public policy and prohibited by the ex turpi causa principle.

102Counsel for the Plaintiffs take issue with the reliance on British case law, since in cases such as Gray, the accused was found guilty in a criminal court before being institutionalized due to his diminished responsibility. It is their view that the ex turpi rule only prevents compensation being paid for time lost while serving a prison sentence pursuant to a criminal conviction, and does not apply to time spent institutionalized in a mental hospital without having been convicted of an offense.

103Plaintiffs’ counsel submit that since a finding of NCR (or the old NGRI) does not connote a criminal conviction, there is no inconsistency in the law involved in compensating a person for institutionalized time – including in a maximum-security hospital. They say, along with Lord Bingham in Gray, at para 15, that “the hospital order should be treated as being a consequence of the defendants’ mental condition and not of the defendant’s criminal act”.

104In other words, Plaintiffs’ counsel argues that the ex turpi rule prevents a person from being declared guilty and collecting compensation for the same act, but it does not prevent a person from being institutionalized and collecting compensation for the non-culpable act that led to his admission to the institution. Counsel for the Defendants, by contrast, do not see the criminal verdict as being the point of inconsistency with the damages claim. Rather, they see the discretion of the Review Board in holding or releasing the Plaintiffs to be the point of inconsistency with a damages claim.

105Defendants’ counsel contend that compensating a Plaintiff for time spent under the jurisdiction of the Review Board is inherently inconsistent with the Review Board’s statutorily authorized authority to keep that person institutionalized at its own discretion. For this proposition, they rely on Rothstein J. in Zastowny, at para 33:

As explained by counsel for the Province, there are other difficulties with the notion of compensating for ‘extra time’. Parole boards are assigned exclusive jurisdiction to make parole decisions. Such discretionary decisions are contextual, involving a balancing of factors including public safety, the interests of victims and rehabilitation and reintegration interests of the offender. A trial court hearing an action for negligence would not be in possession of all the material before the parole board. It would be in the position of ‘second guessing’ what the decision of the parole board would have been had the board attributed some or all of the offender’s conduct while incarcerated before parole eligibility to someone else and on that basis granted parole. It is not for a trial court in a negligence action to review the merits of a discretionary decision of a parole board.

106What is true of a parole board is equally true of the Review Board – exclusive jurisdiction to make release decisions, and a balancing of factors including public safety, rehabilitation, and reintegration into society. A trial court assessing damages for institutionalized time would be in the position of “second guessing” decisions of the Review Board. The Defendants’ wrongdoing may have caused some of the Plaintiffs lengthy institutional time in the sense that it was the cause (or a cause) of their recidivism. However, as in Zastowny and Gray, the Plaintiffs have not challenged the orders that institutionalized them and subjected them to the Review Board’s jurisdiction.

107Without the ex turpi causa principle being applied to such cases, there would be an unavoidable inconsistency in the law. The civil court would either be second guessing the Review Board, as Justice Rothstein suggested, or it would be sitting in judgment of the Review Board’s decisions to maintain the Plaintiff in an institutional setting when that decision is within the Review Board’s sole discretion. As the Supreme Court of Canada has put it, “such an

award would be, as McLachlin J. described in Hall v. Hebert, at p. 178, ‘giving with one hand what it takes away with the other’”: Zastowny, at para 24.

f) Income loss

108It is self-evident, but bears repeating, that when it comes to damages for lost income, “the amount for which the [Defendants are] liable is dependent on [a Plaintiff’s] likely path had he not been abused”: K.M. v. Marson, 2018 ONSC 612. The burden is on the Plaintiffs to prove their damages, although the onus is a somewhat relaxed version of the usual balance of probabilities. The Court of Appeal instructed in Schrump v. Koot (1977), 1977 1332 (ON CA), 18 OR (2d) 337, at para 20 quoting Kovats v. Ogilvie, 1970 760 (BC CA), [1971] 1 WWR 561, 564 (BCCA), that, “One can decide on a balance of probabilities that something in the future is a possibility, and in appropriate circumstances that possibility can be taken into account in assessing damages; in such a case it is not essential, before damages can be assessed for the thing, to decide on a balance of probabilities that the thing in future is a probability.” This has been characterized as a “substantial possibilities” test: Basandra v. Sforza, 2016 ONCA 251, at para 24.

109Although damages for what-could-have-been is inevitably a somewhat speculative question, it must be based on cogent expert evidence and, in addition, “[t]he Plaintiff has an onus to prove the facts upon which damages are estimated”: Borrelli v. Chan, 2018 ONSC 1429. On that basis, the Plaintiffs must then establish their income losses on the basis of a “real and substantial possibility”: McLeod v. Marshall, 2019 ONCA 842, at para 18.

110Since this is an individual action by 28 Plaintiffs, and not a common issues trial in a class action, damages must, of course, be individualized based on evidence about each Plaintiff’s personal history. Accordingly, any damages award must take account of their particular employment and educational history as well as any pre-existing conditions that may have affected their income-earning potential in the hypothetical world that would have existed for them but for the STU programs. To take an obvious example, a person whose education ended at a pre-high school level due to a variety of factors personal to them might, of course, have eventually achieved post-graduate education, but there is a real risk that they would not have achieved any further level of education. That risk, and the employment trajectory that it suggests, will factor into any damages assessment. “The Defendant need not put the plaintiff in a position better than his or her original position”: Athey v. Leonati, [1996] 3 SCR 45, at para. 35 [emphasis in the original].

111The fact finding in Barker Trial I with respect to each Plaintiff’s pre-Oak Ridge life therefore plays an important role in the quantification of their individual income losses. As the Supreme Court has said, “The Defendant is liable for the additional damage but not the pre-existing damage”: Athley, at para 35. Moreover, the award must take into account the risk of any such pre-existing condition being projected into future income. “[I]f there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future…then this can be taken into account in reducing the overall award”: Ibid.

112Related to the principle that future income loss must be calculated with a view to the individual Plaintiff’s history and pre-existing conditions is the what are generally called ‘contingencies’ – i.e. the prospect that the full potential loss might not have panned out under the circumstances. In Andrews, at 253, the Supreme Court indicated that “[i]t is a general practice to take account of contingencies which might have affected future earnings, such as unemployment, illness, accidents and business depression.” The Court of Appeal has further elaborated on this concept and identified it as a part of damages calculation in Graham v. Rourke (1990), 1990 7005 (ON CA), 75 OR (2d) 622 [citations omitted]:

A plaintiff who establishes a real and substantial risk of future pecuniary loss is not necessarily entitled to the full measure of that potential loss. Compensation for future loss is not an all-or-nothing proposition. Entitlement to compensation will depend in part on the degree of risk established. The greater the risk of loss, the greater will be the compensation. The measure of compensation for future economic loss will also depend on the possibility, if any, that a plaintiff would have suffered some or all of those projected losses even if the wrong done to her had not occurred. The greater this possibility, the lower the award for future pecuniary loss.

Factors affecting the degree of risk of future economic loss and the possibility that all or part of those losses may have occurred apart from the wrong which is the subject of the litigation are referred to as contingencies.

113Thus, “trial judges are entitled to adjust an award for future loss of income to account for general contingencies – whether upwards or downwards”: Butler v. Royal Victoria Hospital, 2018 ONCA 409, at para. 11. As acknowledged by the Plaintiffs’ damages expert, Ian Wollach, in cross-examination, this is a matter not of definitive expertise but rather of discretion for the trial judge. The same holds true for specific contingencies. As the Court of Appeal explained it in Graham, the latter are based on evidence particular to a Plaintiff while the former are based more on society-wide aspects of the human condition:

[C]ontingencies can be placed into two categories: general contingencies which as a matter of human experience are likely to be the common future of all of us, e.g., promotions or sickness; and “specific” contingencies, which are peculiar to a particular plaintiff, e.g., a particularly marketable skill or a poor work record. The former type of contingency is not readily susceptible to evidentiary proof and may be considered in the absence of such evidence…

If a plaintiff or defendant relies on a specific contingency, positive or negative, that party must be able to point to evidence which supports an allowance for that contingency. The evidence will not prove that the potential contingency will happen or that it would have happened had the tortious event not occurred, but the evidence must be capable of supporting the conclusion that the occurrence of the contingency is a realistic as opposed to a speculative possibility.

114The Court of Appeal has thus provided guidance that while the trial court can take into general contingencies as a matter of common knowledge and common sense, specific contingencies cannot be so generalized. So, for example, an across-the-board deduction for all Plaintiffs to account for all specific contingencies is not an acceptable way to proceed in assessing lost income; rather “some degree of specificity, supported by evidence, ought to be forthcoming at trial”: Andrews, at 253. In Lewis v. Todd, 1980 20 (SCC), [1980] 2 SCR 694, 716, the Supreme Court elaborated that in considering specific contingencies, “[a]trial judge should consider whether…there are any features of which no account was taken in the actuarial tables either because the factor is entirely personal to the individual or, because the ‘average’ is not adapted for the category or class to which the person belongs”.

115In Graham, the Court of Appeal overturned a trial judge’s award of income loss damages because the award was based on the judge’s favorable view of the claimant’s credibility rather than on actual evidence of the claimant’s employment and medical history. Contrary to the claimant’s confidence in what would have been his successful employment trajectory, the Court in Graham found that the medical evidence “paints the picture of a person who was, in 1984 [i.e. pre-incident], because of her back problems operating on the edge of disaster.” The record, as Doherty JA described it, contained “evidence that there was the possibility that, entirely apart from that accident, her back would not have withstood the bumps and strains which are part of everyone's existence.”

116The Court in Graham went on to factor these medical specifics into the claimant’s employment history, stating that her “personal work history should also have been considered when assessing her future pecuniary loss. Although many aspects of that work history were positive, she had, because of her back ailments, been able to work in only two of the ten years preceding the accident.”

117The same logic that applies to the claimant’s back ailment in Graham would apply to the Plaintiffs’ psychiatric ailments in the case at bar. Having been to Oak Ridge, each had a specific medical and behavioural history and psychiatric diagnosis that is in the evidentiary record and for which findings were made in Barker Trial I. This evidence is important in assessing each Plaintiff’s damages, since “[a]s a general rule, we take account of contingencies that might affect future earnings. This is so despite the fact that these contingencies are already implicitly contained in an assessment of the projected average level of earnings of the person wronged”: Beldycki Estate v. Jaipargas, 2012 ONCA 537, at para 78.

118Broad, unsupported deductions for specific contingencies that come from a damages expert’s own intuitions about the employment prospects of a person with a specific medical diagnosis or disability have been found to be unacceptable; rather, specific evidence about the individual’s condition and its potential impact on employment is necessary: K.M. v. Marson, 2018 ONSC 3493, at para. 650. This generally means that an accounting or other damages expert must be supported not only by medical evidence but by vocational expert evidence where a medical or psychiatric condition translates into a specific contingency for the purposes of a damages calculation: see Sherman v. Guckelsberger, 2008 68165, at para. 90 (SCJ); Onley v. Town of Whitby, 2020 ONSC 20, at paras. 313-314, 319.

119In Ratych v. Bloomer, 1990 97 (SCC), [1990] 1 SCR 940, Justice McLachlin (as she then was) stated that “the general principles underlying our system of tort law suggest that the damages awarded to the plaintiff should be confined to his or her actual loss, as closely as that can be calculated.” She then went on to reason that “as a general rule, wage benefits paid while a plaintiff is unable to work must be brought into account and deducted from the claim for lost earnings.”

120Social assistance, disability payments of various forms, unemployment insurance, etc. are therefore deductible from a damages award as they represent income replacement. The same holds true for workers’ compensation benefits received by a Plaintiff: Jensen v. Schaeffler Canada, 2011 ONSC 1342, at para. 4. The same principle, with some exceptions discussed below, extends to Ontario Disability Support Program (“ODSP”) payments: Silvera v. Olympia Jewellry Corporation, 2015 ONSC 3760, at paras. 169-170, which a number of Plaintiffs received.

121The onus is on each Plaintiff to establish, if possible, that any such income replacement payments were received in some context where by policy they are not deductible. In M.B. v. British Columbia, 2003 SCC 53, [2003] 2 SCR 477, at para 33, McLachlin CJ indicated as a follow-up that this is not the case with ordinary forms of social assistance payments:

Nothing has been put forward to displace the common sense proposition that social assistance benefits are a form of wage replacement. It follows that the only way in which they can be nondeductible at common law is if they fit within the charitable benefits exception, or if this Court carves out a new exception. Otherwise, retention of them would amount to double recovery. Social assistance does not fit within the charitable benefits exception.

122The one exception to this rule is where a Plaintiff has a statutory right of subrogation to the award: Persad v. Silva, 2016 ONSC 6883, at paras. 2-9. Sections 8(1) and (2) of the Ontario Disability Support Program Act, 1997, SO 1997, c. 25, provides that as a condition of eligibility, the Ministry, in its discretion, may require that the recipient of ODSP payments sign a form in which they agree to reimburse the program for the amount of any award they may receive that could be considered income, if they receive the award while they are still receiving ODSP payments. This includes the possibility of recovery awarded in a legal claim, Moss v. Hutchison (2007), 2007 14934 (ON SC), 85 O.R. (3d) 604, at paras. 9-10 (SCJ), and encompasses both income loss awards as well as general damages, although damages up to $100,000 that are awarded for pain and suffering are exempted: O. Reg. 222/98, ss. 28(1)(14), 28(3).

123Accordingly, there are conceivably instances where ODSP payments received by a person awarded damages would not have to be deducted from the award. However, evidence of the reimbursement requirement, such as a signed form or assignment agreement with the Ministry of Health that requires reimbursement, must be produced: Moss v. Hutchinson, (2007), 2007 14934 (ON SC), 85 OR (3d) 604, at para 10 (SCJ). This is only logical as the reimbursement requirement is at the discretion of the Ministry, and the terms of an agreement to repay the ODSP payments can vary. In Aminullah v. Fouroughy, 2004 15884, at para 8 (SCJ), the Court clarified that “[s]hould the paying agencies not require repayment of the sums received, those amounts should be deducted from the liability of the defendants.”

124Although a number of the Plaintiffs have indicated that they receive ODSP payments, none of them have provided evidence of an agreement to reimburse pursuant to s. 8 of the ODSP Act. Without such evidence, I must treat the ODSP payments are to be treated like any other social assistance payments and deducted from the amount of an award.

III. Plaintiffs’ individual claims

125Counsel for the Plaintiffs submit that a holistic approach is required for determining the quantum of any given Plaintiff’s loss. “Damages are assessed and not calculated. Since it is impossible to calculate the exact amount of money that will be needed in the future.” Townsend v. Kroppmanns, 2004 SCC 10, [2004] 1 SCR 315, at para 19. Further, as my colleague Penny J. has pointed out, “While expert evidence is admissible and may be useful, assessment of damages is ultimately a task for the court and not for accountants or other mathematical and statistical experts”: Borrelli v. Chan, 2018 ONSC 142, at para 943.

126Since mathematical precision is not possible, it is for the Court to base its assessment on what is reasonable given the personal situation and case history of each Plaintiff. “Ultimately, the court must base its decision on what is reasonable in all of the circumstances. Projections, calculations and formulas are only useful to the extent that they help determine what is fair and reasonable”: Parypa v. Wickware, 1999 BCCA 88, at para 70.

127What follows is a Plaintiff-by-Plaintiff damages assessment, applying to each Plaintiff’s specific circumstances and experiences the principles of law set out in parts I and II above. A trial judge has significant discretion in assessing general damages, although the amount is considered an error in principle “if the award is completely out of line and truly excessive (or inordinately low, as the case may be)”: Lumsden v. Manitoba(2009), 2009 MBCA 18, 236 Man R (2d) 130, at para 72 (Man CA). Accordingly, the goal of the analyses below is to extract from each Plaintiff’s case history the matters that best characterize his or her experience, and to weigh the particular factual context against other cases that are on some useful level truly comparable.

128In Barker Trial I, I reviewed the evidence with respect to the salient points in each of the Plaintiff’s pre-Oak Ridge history, their experiences in the STU programs, their post-Oak Ridge life, and the specific harms that the STU programs caused them. The present assessment takes all of that into account for each Plaintiff. Each of the following assessments will, for the sake of readability, summarize my findings with respect to the particular Plaintiff, but the summary is not to be understood as replacing the entire case history and findings in the first phase of the trial. The damages assessments that follow can be read as if they incorporate all of the Barker Trial I findings in respect of each individual Plaintiff’s case, whether I repeat them below or not.

a) Reginald Barker

129I indicated in Barker Trial I, at para 176, that Reginald Barker died while the first phase of the trial was still under reserve, but that I expected an Order to Continue on behalf of his estate representative to be forthcoming. I will assess damages for Mr. Barker as though the Order had been obtained, on the understanding that Mr. Barker’s claim will be stayed if an Order to Continue is not obtained by the time judgment is issued.

130The discussion of Mr. Barker’s case history is found in Barker Trial I, at paras 176-215.

131Counsel for the Plaintiffs have put forward a claim for general damages and punitive damages in respect of Mr. Barker. They have not advanced a claim for compensation for lost income.

i) Liability and causation findings

132I concluded in Barker Trial I, at para 1328, that Drs. Barker and Maier and the Crown are liable for having caused Mr. Barker substantial long-term harm and moderate short-term harm.

133To summarize my findings, Mr. Barker entered Oak Ridge as a 22-year old man in 1968, having had a sexual relationship with his mother and experiencing violent sexual fantasies. Pre-Oak Ridge psychiatric reports indicate that he related having audio hallucinations urging him to commit various offenses, up to sexual assault and killing women. He committed a number of sexual assaults against both children and adults, and his index offense leading to his institutionalization at Oak Ridge was murder of a woman whose death he had fantasized would resolve his lingering resentment toward his mother.

134Mr. Barker was in all three of the impugned STU programs. His experience in MAPP involved two occasions for a total of sixteen days and was painful and stressful. However, it was his experiences in the Capsule, one session of which was particularly traumatic, and with the DDT program, to which he was exposed for a protracted period of over 70 days, that were especially harmful. In particular, his experience with having been administered Scopolamine was extremely difficult and induced a psychotic episode which he feared repeating. He testified that his psychiatric condition upon discharge from Oak Ridge was a more extreme version of what it was when he first entered, and that he continued to have fantasies of sexual assault and murder that were even more violent than those leading up to his index offense.

135After his discharge from Oak Ridge, Mr. Barker spent the rest of his life in one mental institution or another. He expressed a dislike of group therapy stemming from his Oak Ridge years, and was resistant to therapy as documented by Dr. Bradford. The dislike of group therapy, however, is not necessarily related to the three STU programs in issue. That is, group therapy sessions were a mainstay of the psychiatric care at Oak Ridge separate and apart from the Capsule, DDT, and MAPP. They may or may not have been effective as therapy, and they may or may not have been socially and psychologically unpleasant; but they are not in issue in this claim. Mr. Barker can be compensated for the harm he suffered in the three impugned programs, but he cannot be compensated here for other aspects of his experience at Oak Ridge.

136Mr. Barker continued for years to experience hallucinatory episodes, which he attributed to his one LSD session in the STU although that attribution was never confirmed or commented upon by Dr. Bradford who examined and reported on Mr. Barker for the Review Board. Right up to the year of his death, the Review Board considered him a threat to public safety and required him to be kept in a custodial psychiatric facility. He did, however, manage to maintain a stable relationship with a spouse for the last several decades of his life.

137My conclusions with respect to the harm suffered by Mr. Barker are set out in Barker Trial I, at paras. 214-15:

As a totality, Mr. Barker’s post-Oak Ridge records indicate that while many of his mental health issues are a continuation of what he suffered prior to his admission, the STU experience – and in particular the DDT sessions – added substantially to his suffering. It is not just that those therapies failed to improve his mental health in any way; they gave him new types of stress and pain from which he never fully recovered.

In the short term, Mr. Barker’s experience at Oak Ridge in the DDT program, and especially with the Scopolamine treatments, caused him great harm in the form of extreme anxiety, trauma, and indignity, and produced no beneficial effect. Over the longer term, the STU programs have caused him harm in the form of LSD flashbacks, continued anger and sleeplessness, the sense of loss of control over his faculties. Drs. Barker and Maier were both directly involved in his treatments.

ii) General damages

138Plaintiffs’ counsel submit that Mr. Barker should be awarded $750,000, but they cite no comparable case in a Canadian court. They do point out, however, that governments have made high payments on an ex gratia basis in several instances where individuals were tortured and wrongfully imprisoned in foreign countries and Canada was complicit in their ordeal. As already indicated in these reasons, ex gratia payments are made on a variety of considerations that go beyond the recipient’s legal rights, including factors on which a court cannot and should not base its award such as the political context of the claim.

139While it is true that Mr. Barker suffered moderate harm during and in the immediate aftermath of his experience in the STU programs, and continued to suffer at a substantial rate in the long term, the harm he experienced amplified his pre-existing psychiatric condition. It did not change the trajectory of his life. He came to Oak Ridge as a disturbed and dangerous individual who was an admitted killer and sexual predator of women and children, and he continued for the rest of his life to be a danger to the public and to those around him. That does not mean that he did not suffer due to the programs, but that suffering, terrible as it was, did not change the course of his life.

140Counsel for the Defendants submit that Mr. Barker should be awarded $68,000 in general damages, which is similar to what the claimant was awarded in Weafer, supra. As previously described, in that case the claimant experienced a drug overdose and at the hands of his physician in a hospital that resulted in a nightmarish, near-death episode. He experienced vivid hallucinations, thought that he saw God, and had to be resuscitated by hospital staff. His pre-existing depression was thereafter far more extreme.

141In Weafer, the B.C. Supreme Court found the case comparable to that of Carpenter v. Whistler Air Services Ltd., 2004 BCSC 1510, where the claimant who had been in a near-fatal airplane crash sought compensation for depression, severe anxiety, impaired cognition, and PTSD. That series of symptoms is not far from Mr. Barker’s short-term anxiety attacks, LSD flashbacks and other hallucinations, sleeplessness and uncontrollable anger.

142While the claimant in Weafer had to be resuscitated from near death, and so suffered even worse than Mr. Barker in the short term, he does not appear to have sustained the level of long-term pain and anguish that Mr. Barker endured as a result of the STU experiences. Perhaps more importantly, the claimant in Weafer suffered due to an accident, not due to a set of harmful programs approved by a Crown-run institution in which he was an involuntary patient. The context adds insult to Mr. Barker’s injuries, to use the colloquial expression for increased pain and suffering. Mr. Barker had a right to expect that he would be taken care of at Oak Ridge, and that he would not be subject to an approved set of programs that exacerbated his pain. I would therefore increase the amount awarded to him by just under double what the Weafer court awarded.

143Mr. Barker is awarded $120,000 in general damages as against Drs. Barker and Maier and the Crown.

iii) Punitive damages

144Counsel for the Plaintiffs has put forward a claim for $1.5 million in punitive damages. That size claim would place him at or near the top of any punitive damages award ever issued in Canada. As previously indicated, the Supreme Court of Canada in Whiten, at para 4, held that any punitive damages award must be proportionate to the size of the compensatory claim in the same case. It must also be roughly in line with other comparable cases.

145In doing so, they make reference to the one traumatic Scopolamine treatment that Mr. Barker underwent, but beyond that their argument rests on matters that are shared by all of the Plaintiffs. That is, they base the punitive damages claim on the design of the STU programs and the oversight, or lack thereof, of the programs, and the ineffectiveness of the programs in addressing the Plaintiffs’ therapeutic needs.

146Mr. Barker testified that until today he holds positive feelings toward Dr. Barker, who he described as non-coercive and sympathetic to him. In Mr. Barker’s words, he has “no beef” with Dr. Barker. Although Dr. Barker admitted Mr. Barker to Oak Ridge and supervised some of his course of treatment there, there is no evidence in the record to indicate any malicious, oppressive, or high-handed conduct by Dr. Barker toward Mr. Barker. It was Dr. Barker that administered the Scopolamine that Mr. Barker complains of most, but even that did not deter him from acknowledging that Dr. Barker never coerced him into taking anything he did not want to take and testifying as to the supportive rapport that Dr. Barker shared with him.

147Mr. Barker further testified that he did have “a beef” with Dr. Maier, who he characterized as an authority figure with whom he felt he had to “curry favor”: Barker Trial I, at para 194. It was Dr. Maier who supervised Mr. Barker’s most traumatic session in the Capsule, which led to a psychological breakdown, and it was Dr. Maier who sent Mr. Barker to MAPP on two occasions for being hostile to other patients. Mr. Barker’s Clinical Records also reveal that Dr. Maier refused to prescribe valium or other relaxant when it was requested by Mr. Barker.

148The evidence with respect to Mr. Barker indicates that while Dr. Barker and Dr. Maier administered the same programs, the former was supportive and considerate of Mr. Barker’s frame of mind while the latter was distant and oblivious to Mr. Barker’s frame of mind. He testified that Dr. Maier had announced to him and other patients that LSD was the “cure for psychopathy”, and that for that reason he was convinced that what turned out to be the harmful drug treatments might be good for him. Although there is no corroborating evidence as to Dr. Maier’s announcement about LSD, and there is therefore no finding that it in fact occurred, the narration by Mr. Barker indicates the antipathy he felt toward Dr. Maier.

149That said, Mr. Barker volunteered for the LSD treatments of his own volition. In Barker Trial I, at para 192, I found that: “Mr. Barker was well versed with the literature provided to him by Dr. Maier on the theories of LSD. In the process, he indicated that he could have refused LSD had he not wanted it.” The evidence indicates that Dr. Maier was perhaps callous in his ability to disregard many of the feelings of the patients in his care, but that his interest in curing them, or in improving their conditions, was genuine.

150It is understandable that the Plaintiffs would seek to punish not just the Doctors but the institution that breached the fiduciary duties owed to them as involuntary mental patients. The Doctors and the institution, however, did not exhibit what one would expect from punishable – as opposed to compensable – behaviour, in the sense that there was no effort to hide the impugned programs. The Doctors wrote and published about the programs in medical journals, the administrator of Penetanguishene invited the press to investigate and film DDT and other STU sessions, the provincial government had the Ombudsman’s office investigate the STU on more than one occasion. Just as the withholding of information can lead to a punitive damages award, Gerula v. Flores, 1995 1096 (Ont CA), transparency tends to undermine the case for punitive damages: Whiten, at para 113.

151Mr. Barker understood that Dr. Maier was truly interested in finding a “cure for psychopathy”, even though it ultimately became obvious to Mr. Barker that the use of psychedelic drugs in pursuit of that goal was futile and harmful. Dr. Maier’s motivation, however, was not malicious; it was, in a misguided way, therapeutic. Dr. Maier is shown in the evidence as offering what he believed was the only potential “cure” for anti-social personality disorders, which otherwise he saw as untreatable.

152Mr. Barker is not awarded any punitive damages against any of the Defendants.

b) Jean-Paul Belec

153The discussion of Jean-Paul Belec’s case history is found in Barker Trial I, at paras 217-263.

154Counsel for the Plaintiffs have put forward a claim for general damages and punitive damages in respect of Mr. Belec. They have not advanced a claim for compensation for lost income.

i) Liability and causation findings

155I concluded in Barker Trial I, at para 1328, that Dr. Barker, Dr. Maier, and the Crown are liable for having caused Mr. Belec moderate long-term harm and substantial short-term harm.

156To summarize my findings, Mr. Belec entered Oak Ridge as a 21-year old man in 1972 and remained there until 1979. He has over the years been in a number of different mental health institutions as well as in prison, where he remains until now.

157I found in Barker Trial I that Mr. Belec had fantasized about killing someone since he was a teenager. He finally acted out those fantasies when he perpetrated his index offence of killing an elderly man on a street corner in Toronto after consuming a large quantity of alcohol. This was the latest in a string of offenses he committed prior to his admission to Oak Ridge. He testified that on entering Oak Ridge, he had no sense of remorse “for murdering an individual for no reason than feeling like doing so”.

158Mr. Belec was subjected to all three of the STU programs. He was in MAPP on at least two occasions, and a painful “T-strap” was applied to him during one of those sessions. He was also placed in double cuffs on a number of occasions as a result of having engaged in violence or making violent threats toward another patient. He was considered a volatile patient with dangerous urges, and was generally treated as a high risk to those around him. He was also placed in the Capsule on 11 occasions, which he found to be both uncomfortable and demeaning. In addition, he received numerous drug treatments as part of the DDT program. These sessions included Dexamyl-Tofranil, Dexedrine, Sodium amytal, Scopolamine, and an alcohol treatment. He also underwent one LSD session, and reported that in the aftermath of this session he felt “inner turmoil”, depression, and was “more confused than ever”.

159In the years following his release from Oak Ridge, Mr. Belec engaged in a number of violent offenses, including attempted murder and a hostage taking; in addition, he was found to have a number of dangerous weapons in his possession. A 1992 Review Board decision found him to be a “seriously disturbed individual with considerable potential for dangerous and unpredictable behaviour”: Barker Trial I, at para 242, quoting Re Belec, File No. 4594-233/92, p. 6 (Ont Rev Bd). This description of Mr. Belec has never really changed.

160In Barker Trial I, at para 260, I expressed the view that “Mr. Belec’s recidivism as a criminal probably has more to do with his pre-existing psychiatric disorders than it does with the several years of hardship he underwent at Oak Ridge.” That said, my conclusion with respect to Mr. Belec, at paras 261-3, was that although the trajectory of his violence and of his life did not change after Oak Ridge, he suffered greatly in the STU programs:

It is obvious to me that Mr. Belec suffered substantial psychic pain during and after Oak Ridge, especially as a result of the DDT program and the LSD component thereof. With all of his reading about this drug in the 1970 pop culture books with which he was provided by Dr. Maier, nothing could have prepared him for a mentally disorienting, identity losing, suicide provoking experience that his LSD treatments turned out to be.

The Oak Ridge experiences with DDT, Capsule, and MAPP may not have been the ultimate cause of the Personality Disorder, Mixed Type with Antisocial, Schizotypal, Narcissistic and Borderline features with which he has been diagnosed. But they sure hurt.

The STU experiences caused Mr. Belec acute psychological pain, indignity, and harm in the short term. They also caused him more protracted, if somewhat subdued pain in the long term. Drs. Barker and Maier were directly involved in his treatments.

ii) General damages

161Plaintiffs’ counsel seeks a general damages award for Mr. Belec in the amount of $750,000, but again they reference no cases that they say are comparable. They contend that this amount reflects the level of contemporary damages beyond the Andrews cap in cases of aggravated and repeated sexual assault, damage to human dignity, and wrongful institutionalization. As previously explained, two of those three categories are not relevant to Mr. Belec, who although he had a history of family violence was not a sexual assault victim, and who was not institutionalized wrongfully but rather was institutionalized pursuant to a valid and unchallenged NCR verdict. Furthermore, I have seen no indication that general damages at the level sought by Plaintiffs’ counsel on Mr. Belec’s behalf actually do reflect contemporary damages awards.

162Defendants’ counsel compare Mr. Belec’s case to two other cases of prison inmates suffering violent incidents while incarcerated, both of whom were awarded general damages in the vicinity of $40,000. In Eng v. Canada, 1997 CarswellNat 510 (Fed Ct), an inmate in a federal penitentiary incurred severe injuries in an assault, resulting in his hospitalization for a number of months followed by a year of painful injuries. He also had a projected spell of anxiety, headaches, and sleeplessness. The trial judge found no liability, but indicated that for this level of injury he would have awarded general damages in the amount of $25,000 (roughly $38,000 adjusted for inflation).

163Counsel for the Defendants also compares Mr. Belec’s case to that of Row v. The Queen, 2006 BCSC 199, where the claimant was an inmate in a provincial jail when he was attacked by another inmate. The assault caused him serious physical and psychological disorders, including PTSD. The B.C. court awarded him $35,000 in general damages ($44,000 adjusted for inflation) for injuries described as follows, at para 49:

His skull was fractured in the right posterior frontal region, leaving a 2 by 4 centimetre permanent depression in his head. He had a laceration to the back of his head, requiring 21 stitches. His lips were severely cut, requiring 17 stitches. A cut to his right hand required seven stitches. The assault caused him to develop severe headaches that he continues to experience every few weeks, lasting about two to four hours. He has suffered a decrease in mental awareness, although a CT scan does not show any significant brain damage. Finally, a neuro-psychologist, Dr. Kaushansky, diagnosed him with a post-traumatic stress disorder flowing from the assault, which contributes to his symptoms of paranoia and depression.

164Although Mr. Belec found the STU programs psychologically debilitating and degrading, he did not suffer injuries at the severity level of the Row case in the short term. However, his suicidality and his pre-existing volatility and vulnerability caused him to endure considerably worse than either the paranoia and depression described in Row or the headaches, anxiety and sleeplessness described in Eng. Importantly, the claimants in Row and Eng were victimized by other inmates and the respective authorities failed to protect them from those inmates. By contrast, Mr. Belec was victimized by Drs. Barker and Maier and the government-run institution itself in running the STU programs.

165There is a qualitative difference between unplanned harm such as in Row and Eng and planned harm such as befell Mr. Belec when he was placed in a government program specifically designed and implemented to break him down. I would therefore award Mr. Belec just over double what the Row court awarded for non-pecuniary loss.

166Mr. Belec is awarded $100,000 in general damages as against Drs. Barker and Maier and the Crown.

iii) Punitive damages

167Plaintiffs’ counsel seek $1,250,000 in punitive damages for Mr. Belec. Again, this would be an extraordinarily high punitive damages award in comparison with other Canadian cases. It would also be out of proportion to the compensatory award for Mr. Belec.

168While it is true that the experience of the STU programs was painful and degrading for Mr. Belec, that suffering is for the most part already addressed in the compensatory award which doubles that of the nearest comparable case.

169Mr. Belec is particularly resentful of the security measures taken against him at Oak Ridge, including T-strapping him and double cuffing him to other patients. Likewise, he understandably felt that MAPP was unduly harsh and punitive and resented being sent there. The Clinical records show that on all of these occasions Mr. Belec had acted or threatened to act with violence toward other inmates and/or staff.

170Drs. Barker and Maier put Mr. Belec through numerous DDT sessions with different drugs in the hopes of finding one that would address his obviously dangerous and violent tendencies. Mr. Belec testified that some of these sessions were not truly voluntary since he was enticed to participate in them in return for a good review by the Doctors, while others such as the LSD session were described by Mr. Belec as truly voluntary. Mr. Belec testified that he read and understood the literature that Dr. Maier provided to him in respect of LSD experiences.

171In all, Mr. Belec was a patient who suffered and who inflicted suffering on others. To take the examples of the two MAPP sessions, the Clinical Records show that the first of those resulted from a threat by Mr. Belec to kill one of the staff doctors because he had suggested the Bible as reading material. The second came on the heels of the hospital staff finding that Mr. Belec had taken the screws out of a mop wringer handle to use as a weapon because he said he wanted to kill someone. In testimony at the first stage of the trial, Mr. Belec conceded that before, during, and after his STU time, he had “difficulty checking his homicidal feelings”: Barker Trial I, at para 226.

172The treatment that Mr. Belec received from Drs. Barker and Maier in his STU years was misguided from a medical point of view, but was in general not malicious. However, the one alcohol treatment that he received was patently unadvisable given that Mr. Belec had an alcohol problem prior to Oak Ridge. While Dr. Maier, in ordering an alcohol “treatment”, may have thought of it as one more chemically-driven session aimed at getting Mr. Belec to open up, the harm of forcing feeding alcohol to an alcoholic could not have escaped him. Dr. Maier was a physician, and as such had a duty to, first of all, do no harm. The alcohol treatment had to have been seen as contrary to that rule, and if not it was a case of wilful blindness.

173All of the STU programs were open to media and ombudsman’s office scrutiny, debated in scholarly journals, and approved by the administration who had oversight of the Doctors that ran it. Most importantly in Mr. Belec’s case, it was hoped to be therapeutic and, where necessary, was safety-driven. Under the circumstances, the one part of Mr. Belec’s STU experience that demands more than just a compensatory award is the alcohol that was administered to him. That prescription by Dr. Maier was reckless in the extreme.

174Mr. Belec is awarded $100,000 in punitive damages, divided 50% as against Dr. Maier and 50% as against the Crown.

c) Eric Bethune

175The discussion of Eric Bethune’s case history is found in Barker Trial I, at paras 264-294.

176Counsel for the Plaintiffs have put forward a claim for general damages, punitive damages, and income loss in respect of Mr. Bethune.

i) Liability and causation findings

177I concluded in Barker Trial I, at para 1328, that Dr. Barker and the Crown are liable for having caused Mr. Bethune moderate long-term harm and substantial short-term harm.

178To summarize my findings, Mr. Bethune entered Oak Ridge as a 19-year old in 1967, having sexually assaulted a woman at knifepoint. He remained there for just over two years. He spent his childhood moving from one foster home to another and was in and out of youth detention centres. His highest formal education is grade 5, which he achieved at the age of 15: Ibid., at para 265.

179Although Mr. Bethune was over 18 when he committed his index offence, he was still a teenager and had been identified by psychiatrists as a troubled youth suffering fits of rage and suicidal thoughts when he was 16 years old. At the age of 17 he was diagnosed with depression and a personality disorder. His pre-Oak Ridge medical records from Philippe Pinel Institute in Montreal state that he exhibited “a profound obsessional neurosis accompanied with character and behaviour disorders and associated with paranoid elements”, and specifically warned that “a severe character neurosis has long developed which might deteriorate, if this patient is not suitably helped”: Ibid., at para 267.

180Accordingly, although Mr. Bethune was not technically a young offender when he committed his index offense and was admitted to Oak Ridge, his condition as a disturbed and vulnerable adolescent was known and was part of the medical history that accompanied him there. Indeed, he was reported to be a volatile and hostile patient at the Whitby Psychiatric Hospital just prior to his admission to Oak Ridge, and it was this inability to control himself that resulted in his referral to Oak Ridge.

181Since his discharge from Oak Ridge in 1969, Mr. Bethune has never been under psychiatric care. He did, however, commit a number of subsequent offences through the 1980s and early 1990s, including sexual assault, theft, and criminal harassment. In recent decades he has achieved a stable family life and is in a long-term marriage. He has apparently started various educational programs, has never completed a college or university degree, but did complete a course for immigration consultant although he has not succeeded in being licensed for that profession. Mr. Bethune speaks four languages: English, French, Dutch, and German: Ibid., at para 283.

182Mr. Bethune continued to display volatility during his stay at Oak Ridge. His Clinical Records there show that on numerous occasions he had to be sedated, prescribed with tranquilizers, and kept in isolation or under watch. He was placed in the DDT program and, although not given LSD, was administered a variety of stimulants and mind-altering drugs including Scopolamine, Methadrine, and Dexadrine.

183The drug sessions were done in combination with extended sleep deprivation, which Mr. Bethune described as producing serious anxiety. The drugs were also used together with Defendants’ expert witness, Dr. Stephen Hucker, called “confrontational therapy”, in which other Oak Ridge patients labelled “teachers” abusively confronted him about personal matters. Mr. Bethune testified that he continues to have nightmares in which he relives these difficult experiences: Ibid., at para 279.

184I concluded my review of Mr. Bethune’s case history in Barker Trial I, at paras 292-4, as follows:

While the evidence only supports Mr. Bethune having been in one of the 3 impugned STU programs, that was enough to cause him substantial short term harm and at least some long term harm. The combination of drugs that he was administered, together with sleep deprivation and frequently being placed in restraints while undergoing these experiences, caused him substantial pain and anguish at the time and have left their mark on him until today. While the DDT program did not cause the criminality that he has occasionally displayed subsequent to his Oak Ridge days – that tendency was present in his personality prior to his admission to Oak Ridge – it did make his ability to achieve a stable life that much more difficult.

Mr. Bethune is fortunate to have a supportive marital relationship and a relatively stable home life in which to recover from his Oak Ridge experiences. But it has taken him the better part of 4 or 5 decades to attain his presently more sanguine state of mind. After all, Dr. Barker went out of his way to break down Mr. Bethune’s mental defences, and by all accounts he succeeded. There is no indication in the record that those mental defences were built back up, and as a consequence Mr. Bethune was left in a mentally fragile state and prone to re-living the worst of the DDT episodes. That he has made something of his life in recent years is in spite of, not as a result of, the drug treatments he underwent at Oak Ridge.

The Oak Ridge experience caused Mr. Bethune substantial short-term harm and lingering, although far more mild, long-term harm. Dr. Barker was directly involved in his treatments.

ii) General damages

185Plaintiffs’ counsel seek a general damages award for Mr. Bethune in the amount of $750,000, emphasizing the descriptions of harm that I reviewed in Barker Trial I but citing no specifically comparable cases with this level of general damages. They submit that the analytic framework set out in Blackwater, supra, for historic wrongdoing applies to Mr. Bethune’s case. As previously indicated, this approach takes into account the Plaintiff’s specific circumstances including age and vulnerability, the nature of the wrongdoing, the Defendants’ relationship to the Plaintiff, and the consequences of the wrongdoing for the Plaintiff.

186Defendants’ counsel submit that Mr. Bethune should be awarded general damages in the amount of $62,000. They compare his claim to the level of damages in Mitchell v. Block, supra, where, as described earlier in these reasons, the claimant suffered psychological and physical injuries due as an adverse reaction to a drug prescribed by a psychiatrist. In that case, the plaintiff developed seizures and Stevens-Johnson Syndrome, which necessitated extensive skin grafts and prompted her physicians to inform her that she would likely die as a result of the drug. Much as with the Plaintiffs did in the case at bar, she claimed she did not give her informed consent to take the drug.

187With respect, I do not understand how Plaintiffs’ counsel came up with their requested damages amount. The Blackwater case itself entailed young students who were sexually abused in residential schools with life altering consequences, suffering what Chief Justice McLachlin described, at para 89, as “dreadful physiological and psychological effect on the victim”. It resulted in a compensatory award of $125,000 in general damages and $20,000 in aggravated damages (which, updated to the end of 2020 using Bank of Canada inflation rates, would be in the range of $185,300). The claim put forward here appears to be simply off the scale of all previous cases.

188That said, the amount put forward by Defendants’ counsel does not adequately account for what transpired with Mr. Bethune in his late teenage years. He was forced to relive from his teenage years into his current advanced age a series of nightmarish drug experiences in a hostile surrounding, and has the ongoing indignity of knowing that this was done not as an accident but with the intention of breaking down what psychological defenses he had as a depressive, suicidal and volatile young man. Although he did not come close to dying like the claimant in Mitchell did, the impact of this experience on him as an adolescent has lingered for the rest of his life.

189The vulnerability of Mr. Bethune as a youthful patient in the STU was never taken into account by Dr. Barker or Oak Ridge as an institution. That is not a factor that had to be considered in Mitchell but that does need to be considered here. I would therefore award Mr. Bethune more than double what the Mitchell court awarded for non-pecuniary loss.

190Mr. Bethune is awarded $200,000 in general damages as against Dr. Barker and the Crown.

iii) Punitive damages

191In Mr. Bethune’s case, Dr. Barker, through sheer callous indifference, put a depressed and suicidal teenager through a drug-addled ordeal that he could not handle, with lasting effects. In Barker Trial I, at paras 287-9, I summarized some of the Defendants’ own expert witnesses’ reflections on this experience:

Dr. Hucker examined Mr. Bethune’s records and agrees that the combination of Scopolamine and Mehedrine could be dangerous. In his cross-examination, Dr. Hucker conceded that there probably was no informed consent about these drugs, and that the records indicate that these drugs were by and large recommended by other patients, not by doctors.

Plaintiffs’ counsel also called Dr. Hucker’s attention to Mr. Bethune’s Treatment Records of May 1968, which recorded multiple days in sequence in which he was administered Methedrene, Scopolamine, Dexedrine, and Dexamyl, all of which caused sleep deprivation for 4 consecutive days, followed by another treatment for 3 consecutive days, and then repeated again. Dr. Hucker explained that the overall intention was to induce the disorientation that comes from protracted sleep deprivation, and agreed that in this context the drugs that Mr. Bethune was given amounted to ‘quite a nasty combination’.

Indeed, Dr. Hucker opined that with sleep deprivation, Scopolamine and Methedren would be very anxiety producing. In his words, ‘You become psychotic after a few days’. He then confirmed that a patient would have long term memories of this experience. In a moment of understatement, Dr. Hucker testified: ‘It would be something they weren’t likely to forget.’

192As Dr. Hucker points out, the Oak Ridge medical records demonstrate that Dr. Barker deferred to the recommendations of other mental patients in prescribing the sequence of DDT treatments for Mr. Bethune. As untrained laypersons, those patients might not have known the difference between a mature adult and a vulnerable 19 year-old, but Dr. Barker was not an untrained layperson. He was the responsible medical professional at a government hospital, where he was given a free hand to run his therapies.

193Dr. Barker’s treatment of Mr. Bethune can only be understood as a matter of either malicious curiosity at how far a young mind can be pushed, or reckless indifference as to that question. Either way, it was callous and high-handed treatment of a very vulnerable patient. I specifically found, at para 293, that, “Dr. Barker went out of his way to break down Mr. Bethune’s mental defences, and by all accounts he succeeded.”

194This attitude is to be condemned in an emphatic way. As trier, I “have it in [my] power to give damages for more than the injury received. Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself”: Whiten, at para 40, quoting Wilkes v. Wood (1763), 98 ER 489, at 489-99 (KB).

195While specific deterrence is not an issue here since Dr. Barker is retired and the STU programs were cancelled nearly four decades ago, the law has an interest in condemning this conduct and generally deterring its repetition. Preventing others treating young and vulnerable patients in this callous and high-handed way can best be accomplished by imposing punitive damages in the present circumstances. Although this appears to be a windfall to Mr. Bethune, it should rather be conceived of as an award that falls to him as “public interest enforcer” for important legal values: Whiten, at para 40. As the Supreme Court has observed, courts in common law jurisdictions “have accepted general deterrence, not retributive punishment, as the dominant purpose behind punitive damage awards in a number of important decisions”: Whiten, at para 44, quoting B. Feldthusen, “Punitive Damages: Hard Choices and High Stakes”, [1998] NZ L Rev 741, at 742.

196Plaintiffs’ counsel seeks $1,250,000 in punitive damages on Mr. Bethune’s behalf. That would make him the highest recipient of punitive damages in Canadian history. No reason has been given for putting Mr. Bethune, or any of the Plaintiffs here, in that unique category.

197While the STU programs were a cruel product of remarkably bad science, and were generally painful and induced suffering, they were entirely ruinous to the individuals, and were certainly not widespread across the country and culturally genocidal the way that residential schools were: Truth and Reconciliation Commission of Canada, Final Report, TRC Findings, “What We Have Learned: Principles of Truth and Reconciliation”, at p. 25. In my view, awarding punitive damages at the level sought by Plaintiffs’ counsel would do just what the Supreme Court warned trial courts not to do – i.e. it would “exceed the bounds of rationality” and “overshoot the purpose”: Whiten, at para 128.

198In Howe v. Marchi, 2017 BCSC 1806, at para 516, the B.C. court, referring to the Whiten principles, stated that, “punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant”. The case involved what the trial judge called “reprehensible conduct” by a driver who, while his driver’s license was suspended, struck the plaintiff causing serious injury, fled the scene, and falsely testified that he did not drive at all until cross-examination when he was shown photographs of himself from a surveillance camera pulling into a Home Depot parking lot shortly after the accident: Ibid, at paras 54-64, 518.

199The court in Howe awarded $100,000 in punitive damages, which appears to be the highest punitive damages award in a personal injuries case in Canada: Murray Stieber, Andrea LeDrew, Christian Breukelman, “Punitive Damages” (2017), at: <Punitive Damages | Stieber Berlach LLP (sblegal.ca)>. The defendant’s conduct there was, of course, illegal, while Dr. Barker’s conduct toward Mr. Bethune was irresponsible but government sanctioned. However, given Dr. Barker’s fiduciary capacity toward Mr. Bethune, the imperative of denunciation is even greater.

200Mr. Bethune is awarded $150,000 in punitive damages, divided 50% as against Dr. Barker and 50% as against the Crown.

iv) Income loss

201Plaintiffs’ counsel state in their written submissions that, “But for the impugned programs, Mr. Bethune would have completed his studies at the University of British Columbia and maintained employment commensurate with that level of education.” Other than Mr. Bethune testifying that he feels that way, there is nothing in the evidence to suggest that is the case.

202Mr. Bethune had a sporadic and unstable education and employment history prior to his admission to Oak Ridge, and continued to have a sporadic and unstable education and employment history after Oak Ridge. He had a criminal record prior to Oak Ridge and continued to commit the same level of crimes for the first two decades after Oak Ridge. While the STU programs clearly caused him pain and suffering, they do not appear to have had a strong influence on his income earning trajectory.

203In his affidavit filed in his first week of trial, Mr. Bethune deposed that he only reached a grade 5 education and had trouble in school. When he testified at trial, however, he denied this was the case even when his own sworn affidavit was put to him. In his affidavit he also stated that he left school and could only manage to be employed for short stints due to his psychiatric illness, which he deposed included depression, suicidal thoughts, and behavioural issues. Again, when testifying at the hearing he denied these statements in his own affidavit.

204The affidavit was supported by contemporaneous medical records written by psychiatrists and other professionals who had no reason to record anything inaccurately. There is no credibility to Mr. Bethune’s denials. It was apparent to me that between swearing his affidavit and giving his viva voce testimony, he had re-thought his strategy and, as a consequence, had “re-thought” the truth. The fact is that Mr. Bethune reached grade 5 at the age of 17 and then dropped out of school. In 1966, as an 18 year-old the year before his index offense and admission to Oak Ridge, his Service Canada record shows that he held no less than 9 low paying jobs.

205Mr. Bethune spent two years in Oak Ridge and then another two years in prison after being convicted of indecent assault and break and enter. He was released in 1971, and for the next seven years there is no documentary evidence of what he was doing. Testifying at the second phase of the trial, Mr. Bethune said that he had managed to complete his grade 12 education in Quebec and then study for two years at Sacramento College – the name which he consistently used to refer to what in their written submissions Plaintiffs’ counsel identify as the California State University, Sacramento. He also testified that he was admitted to and enrolled in the University of British Columbia during that time, but that he did not end up studying there due to continued suffering from the STU programs he had been in.

206Neither a Quebec high school transcript of diploma, nor a transcript of courses or grades from Sacramento College, nor an acceptance letter from U.B.C. has been produced to support this testimony. Given Mr. Bethune’s non-credible testimony at the first stage of the trial, this account is also difficult to believe. When cross-examined as to his post-college plans after leaving Sacramento, he said that he could not recall any specific plans. The fact that he did not seem to know the actual name of the institution at which he studied and could not recall what he was going to do after finishing does not inspire confidence in the truth of this narrative. Mr. Bethune may well have been in California or elsewhere outside of Canada, as there is no record of his employment anywhere in Canada during those years, but whether he was actually studying remains in question.

207Mr. Bethune appears to have started working again in 1978. During that year he held a series of rather low paying jobs at Canadian Pacific Railway Company, Fred Asher Stores for Men Ltd., and Twelve Caesar’s Restaurant Ltd. The highest paying of these was Fred Asher’s, where he earned a total of $1,551 at Fred Asher Stores. The following year, 1979, he worked at Consumers Distribution where he earned a total of $492 for the entire year. In 1980, he held five different positions before obtaining a steady, part-time job at the BC Liquor board in 1980. He managed to hold onto that position until 1985, when he was convicted of sexual assault with a weapon. Mr. Bethune testified that he was not fired but rather that he voluntarily quit his job at BC Liquor in 1985, but if that is true it is only in the most technical sense. He was that year convicted of sexual assault and incarcerated for three years.

208From 1997 to 2007, Mr. Bethune ran his own moving company. He had two relatively good years in this business, grossing over $70,000 per annum in each of those years. Ultimately, however, he closed the business down. He testified that in the long run it was not financially successful as the market was too competitive and he was overspending on advertising. He did not indicate in his testimony that the failure of the business was due to anything other than the same market and competitive forces with which all business grapple; nevertheless, Plaintiffs’ counsel submit that had he not been in the STU programs some 36 year previously, he might have maintained full time work either in the business or elsewhere for longer.

209Mr. Bethune confirmed in his testimony that he did nt work during the years of his incarceration as well as from 1971 to 1978, in 2000, and from 2002 to 2005, and attributed his difficulties in the workplace to his criminal record and his lack of education. He did complete a course in immigration consulting from a private college in Vancouver, but he did not manage to get licensed to practice due, he testified, to his criminal past. As already indicated, Mr. Bethune’s criminal offenses are not attributable to his STU experience.

210The Plaintiff’s financial expert, Ian Wollach, put forward two potential scenarios for calculating Mr. Bethune’s income loss: a) Mr. Bethune would have started working full time at minimum wage from January 1, 1972; and b) Mr. Bethune would have completed a Bachelor’s degree at U.B.C. and earned the full time salary of a university graduate from January 1, 1980. Neither one is realistic or supported by the evidence.

211There is no credible evidence that Mr. Bethune was ever academically prepared for higher education, or for completing a four-year Bachelor’s degree. I do not believe that he ever attended university, and I am also doubtful that he completed high school. Having only achieved a grade 5 education in his youth, Mr. Bethune would have had a lot to make up for and there would have to have been some documentary record of that further education. Its absence, and Mr. Bethune’s tendency to obfuscate his educational past, suggests that he achieved no further education other than the immigration consultant course several decades post-Oak Ridge.

212There is also no evidence to support the proposition that Mr. Bethune could have worked full time, even at minimum wage. His employment was sporadic prior to Oak Ridge and his employment was sporadic in the same way after Oak Ridge. His criminal record was an impediment to his employability, as was his pre-existing psychiatric condition. He testified as to both of those impediments himself. Since the STU experience did have a long lasting effect on him, it also contributed to his inability to obtain and keep full time employment, but the impact of his pre-existing condition and criminal record would have to heavily discount his lost income claim.

213The damages expert for the Defendants, Larry Andrade of Deloitte & Touche, presents an alternative scenario that is much more closely based on the evidence in the record. He premises his figures on the opinion of Josh Campbell, an occupational therapy and vocational assessment expert produced by the Defendants. Mr. Campbell opined that Mr. Bethune’s work history is consistent with statistics about persons with a criminal history and with mental health disorders, and indicates in his report that Mr. Bethune would likely have experienced significant employment difficulties separate and apart from his STU experiences. Using Stats Can wage data for persons with similar issues, Mr. Campbell concluded that a deduction of between 43% to 68% should be applied to a full-time minimum wage scenario in order to account for the statistically diminished earning potential.

214Mr. Campbell is the only expert to have given evidence on the employability of a person in Mr. Bethune’s position. By contrast, Mr. Wollach, who is a well qualified accounting and financial expert but not a vocational expert, expressed no view on the limitations of a criminal record or mental health condition. Rather, he assumed that using full-time minimum wage as the norm would account for all such discounts. I have no way of knowing whether that assumption is correct, and Mr. Wollach has no way of assuring me of its correctness. I accept Mr. Campbell’s view that there needs to be a discount off of full-time minimum wage to account for Mr. Bethune’s situation. Since Mr. Bethune had enough psychological stability to maintain a long-term marital relationship, I conclude that but for the STU he would have had a reasonable capacity for stable employment as well. I will therefore use Mr. Campbell’s smaller 43% discount rather than his larger 68% scenario.

215Mr. Andrade has calculated the income that Mr. Bethune would have earned as a full-time minimum wage earner from January 1, 1971 and applied the requisite 43% discount. He has then deducted the earnings that Mr. Bethune did make, together with the social assistance he received: see In M.B. v. British Columbia, supra. From this he has taken a 43% discount, for a total loss of just over $33,000. I accept these calculations.

216Mr. Bethune is awarded $33,000 in compensation for loss of income, as against Dr. Barker and the Crown.

d) Joseph Bonner

217The discussion of Joseph Bonner’s case history is found in Barker Trial I, at paras 295-325.

218Counsel for the Plaintiffs have put forward a claim for general damages and punitive damages in respect of Mr. Bonner.

i) Liability and causation findings

219I concluded in Barker Trial I, at para 1328, that Dr. Barker and the Crown are liable for having caused Mr. Bonner moderate long-term harm and substantial short-term harm.

220To summarize my findings, Mr. Bonner entered Oak Ridge as a 17-year old in 1971, and remained there for nine months. He was not there having been charged with a criminal offense, but rather was involuntarily admitted under the Mental Health Act, 1967 after telling a psychiatrist at the Queen Street Mental Health Centre that he had thoughts of committing suicide by drug overdose: Ibid., at paras 296-99.

221Although Mr. Bonner’s time at Oak Ridge was spent in the STU, he had only one two-week long DDT session and one three-day session in the Capsule. Other than that, he spent six of his nine months, intermittently, in solitary confinement. He is the only one of the Plaintiffs for whom solitary confinement is pleaded as a stand-alone ground of liability. His Clinical Records record that he was released from Oak Ridge in December 1971 “against medical advice”. This turned out to be particularly poor medical advice; since being released from his Oak Ridge ordeal of extended solitary confinement, Mr. Bonner has lived a stable family life and a successful economic life: Ibid., at paras 300, 304, 310.

222Mr. Bonner was a youth when he was a patient of Dr. Barker’s at Oak Ridge, and was treated with a reckless and harmful form of neglect. He let other mental patients decide to send Mr. Bonner to solitary confinement. I specifically found that “Mr. Bonner was often sent to isolation not because it was thought to medically benefit him, but on the whim of another patient who had been empowered by the doctors to do so”: Ibid., at para 314. There is no doubt, however, that although the decision was made by other patients, it was Dr. Barker who was responsible for this treatment of Mr. Bonner. Dr. Maier conceded the point in his cross examination, quoted in Barker Trial I, at para 315:

Q. And of course, the ultimate decision to send him to confinement, was that made by the patient teacher, was that made by one of the other patients or was that made by the psychiatrist?

A. It would have been made – there would have been a chain of command with the recommendation that he stay in confinement and ultimately Dr. Barker who would have been – who was the psychiatrist would of approved it.

223The Defendants concede that in a penitentiary setting, solitary confinement of extended, months-long duration has been found to be harmful: see Canadian Civil Liberties Association v. The Queen (2017), 2017 ONSC 7491, 140 OR (3d) 342 (SCJ); Reddock v. Canada (Attorney General), 2019 ONSC 5053. Indeed, one of their own experts, Dr. Gary Chaimowitz, is the leading expert on the psychiatric harm caused by solitary confinement. At the first phase of the trial, they argued that confinement in a mental hospital setting such as Oak Ridge is qualitatively different than in a penitentiary, and that it is helpful rather than harmful. I rejected that argument in Barker Trial I, at paras 318-19, 322:

In his testimony in the present trial, Dr. Chaimowitz argued that while solitary confinement in federal prisons is designed to be punitive, in Oak Ridge it was designed to be therapeutic. Under cross-examination, however, he acknowledged that the two types of confinement were physically very similar. That is, lack of access to the yard or any exercise, which was conceded by Dr. Maier to be the case with confinement at Oak Ridge, is also common to solitary confinement in federal penitentiaries. Likewise, he agreed lack of access to stimuli as described by Mr. Bonner and other patients, and lack of access to treatment, were features of Oak Ridge and are features that cause harm in federal prisons. Dr. Chaimowitz also confirmed that the evidence shows that Drs. Barker and Maier did not visit the Plaintiffs when they were in confinement, which suggests that there was in reality little therapy involved in this arrangement.

The Clinical Records establish beyond any doubt that Mr. Bonner was tormented while in Oak Ridge…

Mr. Bonner testified that although he has had a stable life, he continued to suffer anguished effects of the Oak Ridge experience for years afterwards. That is not surprising. Dr. Chaimowitz testified that “extended stays in solitary confinement for people with mental disorders are inherently harmful.” He explained that this harm has long lasting effects, much like post-traumatic stress.

ii) General damages

224As indicated above, I found in Barker Trial I that Mr. Bonner suffered greatly – that he was “tormented” rather than treated at Oak Ridge. The impact on him was egregious, especially as he was a chronically depressed and suicidal teenager, known to Dr. Barker and the institution to be an underage and immature patient: Ibid., at paras 297-99.

225Plaintiffs’ counsel seek $1,000,000 in general damages for Mr. Bonner. In doing so, they cite a number of ex gratia payments made by the government of Canada in cases such as “Mr. Arar, Mr. Almalki, and Mr. Nureddin, who were tortured with the connivance of the Crown in Syria for a span of time comparable to Mr. Bonner’s”. I have previously in these reasons indicated that the often politicized context of such ex gratia payments makes them unhelpful precedents for a judicial damages assessment.

226More than that, I feel compelled to point out that terrible as Oak Ridge in the 1970s may have been, it was a transparent program where not only the media but the provincial ombudsman and the patients’ own families were free to visit, understand, and publicize the custodial conditions and the programs there. As Defendants’ counsel point out, it is important to keep perspective on the fact that solitary confinement was a well-known and standard practice in Canadian prisons in the 1970s, and it was not until more recent years that it has been identified as a human rights violation. That is not to say that I accept that medical professionals and a mental health institution were therefore justified in imposing this practice on a vulnerable youth such as Mr. Bonner, but it was not a clandestine form of torture of the kind to which Plaintiffs’ counsel compares it.

227The record shows, and I found in Barker Trial I, at para 309, that it was Mr. Bonner’s mother that in December 1971 visited Oak Ridge and then wrote to its administrator, Dr. Boyd, requesting that her son be released. Dr. Boyd and Dr. Barker then discussed Mr. Bonner’s situation and recommended that he stay for further therapy; ultimately, however, they agreed to release him, noting in his Clinical Record that he was being released against medical advice.

228In the Report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, vol. I (2006), at pp. 229-338 (the “Arar Report”), Commissioner Dennis O’Connor describes the black hole of information surrounding the whereabouts and treatment of Mr. Arar while imprisoned in Syria. He also goes into some detail about the nature of the abuses practiced by the Syrian regime.

229The Arar Report chronicles how it took the Department of Foreign Affairs many weeks to even confirm that Mr. Arar was in Syria at all, let alone to know where and under what conditions he was being held or to arrange a consular meeting with him. Commissioner O’Connor goes on to find that Amnesty International and other human rights sources had reported on Syria’s practices of arbitrary arrest and imprisonment, physical torture in an effort to extract confessions and information from detainees, prolonged incommunicado detention, and inhumane prison conditions. Without meaning to sound jaded about Plaintiffs’ counsel’s argument, nothing in the Arar Report comes close to suggesting that Mr. Arar’s mother would have been able to successfully request his release.

230Defendants’ counsel submit that Mr. Bonner deserves no more than $1,000 in general damages. They compare his case to Abbott v. Canada, 1993 CarswellNat 455 (Fed Ct), where an inmate serving a penitentiary sentence for a break and enter claimed damages as a result of having spent 100 days in solitary confinement following a prison altercation. As the Court described it, at para 167: “Segregation results in an inmate’s liberty being further reduced, as the inmate is locked up for 23 hours of the day, and for the one hour of visiting privileges he has a pair of hand cuffs on his hands. In light of the fact that I have found the plaintiff’s third period of segregation to have been unjustified in fact and in law, I am of the view that the conditions of segregation in which the plaintiff found himself amounted to cruel and unusual punishment”.

231In the result, the Court in Abbott awarded the claimant $10 ($16 in 2021 dollars) a day for each day he was in solitary. Using this scale, Defendants’ counsel contend that Mr. Bonner’s general damages claim should comes to a total of $2,976. They go on to argue that “Mr. Bonner is not entitled to an award of aggravated damages; his general damages award fully compensates him for the psychological harm and hurt feelings he suffered.”

232Much as Plaintiffs’ counsel’s proposed general damages award overshoots the mark by a significant degree, Defendants’ counsel’s proposed award undershoots it. In the first place, Defendants’ counsel overlook the fact that the Court in Abbott added to the compensatory award $10,000 in “exemplary damages”. That term was defined by the Court, at para 173, as including elements of both punitive and aggravated damages: “Exemplary damages are those which are also called ‘punitive’, ‘aggravated’, ‘retributory’” In keeping with this omnibus definition, the Court examined both the conduct of the defendant and the impact of the wrongful conduct on the claimant. In other words, the extra $10,000 contained something of what one would ordinarily consider to be the aggravated part of a compensatory award.

233Importantly, unlike Mr. Bonner, the claimant in Abbott was described, at para 169, as “a 28 year old inmate” and, essentially, a career criminal who “has been in and out of prisons for various offenses” for more than a decade. The prison authorities acted wrongfully in sending him to solitary, and he was entitled to damages. But there is nothing in the judgment that indicates that he was any more sensitive or vulnerable than any other adult inmate, or that the solitary confinement, unpleasant as it must have been, had any lingering impact. In fact, the only mention of his post-confinement condition was the Court’s observation that when he was removed from confinement “he was able to resume his normal activities, including playing sports”: Ibid., at para 169.

234Mr. Bonner, by contrast, was an abused youth suffering from mental illness. To make him serve six of his nine months in solitary confinement is excessive by any standard. Plaintiffs’ counsel argues that as an underage victim of harsh abuse, the Blackwater principles apply to him, and that those principles yield a far more substantial award than what Defendants’ counsel propose. In Blackwater, the Supreme Court upheld the trial court’s general damages award of $125,000 plus $20,000 in aggravated damages (for a total of $190,790 updated for inflation). It described this award as taking proper account of the wrongful conduct and its “dreadful physiological and psychological effect on the victim”: Blackwater, at para 89.

235Mr. Bonner was in his later teens and so was not as exposed as the young child victims described in Blackwater. On the other hand, he was a depressed and sometimes suicidal teen seeking help in a mental hospital. With these factors in mind, Blackwater is indeed a principled comparator case. I would award Mr. Bonner roughly what the claimant in that case received, updated to 2021 dollars.

236Mr. Bonner is awarded $200,000 in general damages as against Dr. Barker and the Crown.

iii) Punitive damages

237Oak Ridge, under Dr. Barker’s supervision and authority, put Mr. Bonner, a depressed and suicidal teenager, through a protracted ordeal that he was ill-equipped to handle. In Barker Trial I, at para 319, I described it as follows:

In fact, his torment was in a way self-perpetuating, since the more he expressed his anguish the more other non-medically trained patients decided that he should be in confinement. Reading Mr. Bonner’s clinical history for those 8 months in 1971 is to read a tale of neglect and irresponsibility by Dr. Barker, Dr. Boyd, and the entire institution. He was subjected to harmful lengths of confinement for the most petty of reasons and at the whim of other patients, with no hope of freeing himself from that cycle.

238Although his actual experience of solitary confinement was different than Mr. Bethune’s experience with the DDT program, the callous nature of the medical supervision was similar with respect to the two teenage patients. In both cases, Dr. Barker deferred to the decisions of other Oak Ridge patients as to important decisions with serious ramifications for the individual. As laypersons without training in medicine or psychology, those patients might not have distinguished between a mature adult and a vulnerable 17 year-old, but a patient in Mr. Bonner’s position should have been able to rely on the professional judgment of Dr. Barker to “do no harm” as the Hippocratic Oath requires.

239As with Mr. Bethune, Mr. Bonner was entitled to have Dr. Barker act as the responsible medical professional at a government hospital. At Oak Ridge, Dr. Barker was essentially given a free hand to run his therapies, but he ran them in a high-handed way that was indifferent to the vulnerable position of the youngest of his patients. It is not necessary to find that a doctor has acted maliciously in order for punitive damages to be warranted; rather, it is sufficient to find, as I do, that the doctor’s actions were reprehensible or that they offend ordinary standards of decency: Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 SCR 226. The Nova Scotia Court of Appeal has specifically held that this standard applies to a case of recklessly exposing a vulnerable plaintiff to substantial risk of harm without any justification: Roose v. Hollett, 1996 5288.

240Counsel for the Plaintiffs seek the same amount of punitive damages for Mr. Bonner as they do for Mr. Bethune: $1,250,000. For reasons along the same lines that have been elaborated upon for Mr. Bethune above, this figure is out of line with all previous Canadian cases. To repeat one of the fundamental messages of Whiten, at paras 74 and 128, it is important in assessing punitive damages to express the court’s denunciation of the Defendants’ conduct and to foster a deterrence policy, but at the same time not to “overshoot the purpose”. The Court can articulate its disapprobation of the punishing attitude shown to Mr. Bonner, but the way to do that is not to impose a punishing award on the Defendants that is “unwarrantedly high”: Zurich Life Insurance Co. v. Branco, 2015 SKCA 71, at para 122.

241In McIntyre v. Grigg (2006), 2006 37326 (ON CA), 83 OR (3d) 161, the Ontario Court of Appeal reduced a $100,000 punitive damage award to $20,000 against a defendant driver who caused an automobile accident when his blood alcohol level was two to three times over the legal limit. This is not the time or place to debate changing judicial attitudes with respect to drunk driving, but I note that the Court, at para 8, specifically found that the driver was a football player; he was not a professional driver. Furthermore, unlike the Defendants here, who have never faced condemnation in any criminal or regulatory forum, the driver in McIntyre had already been punished in criminal court with respect to his driving offence. Had these factors not been in place the case would have more closely paralleled the case at bar and the trial judge’s punitive damages award may not have been altered.

242As with Mr. Bethune, the imperative to denounce the reprehensible treatment of a young patient by a doctor and a government-run hospital is strong. Mr. Bonner is awarded $100,000 in punitive damages, divided 50% as against Dr. Barker and 50% as against the Crown.

e) William Brennan