Court File and Parties

Court File No.: 00-CV-199551 Date: 2023-08-14 Superior Court of Justice - Ontario

Re: REGINALD BARKER, JEAN-PAUL BELEC, ERIC BETHUNE (formerly Jean-Jacque Berthiaume), JOSEPH BONNER, WILLIAM BRENNAN by the Estate Trustee MAXWELL BRENNAN, STEPHEN CARSON, ROY DALE, MAURICE DESROCHERS by the Estate Trustee LORRAINE DESROCHERS, DONALD EVERINGHAM, JOHN FINLAYSON, TERRY GHETTI, BRUCE HAMILL, ELDON HARDY, WILLIAM HAWBOLDT by the Estate Trustee BARBARA BROCKLEY, DANNY A. JOANISSE, RUSS JOHNSON, STANLEY KIERSTEAD, DENIS LEPAGE, CHRISTIAN MAGEE, DOUGLAS McCAUL, BRIAN FLOYD McINNES, ALLEN McMANN, LEEFORD MILLER, JAMES MOTHERALL by the Estate Trustees DEBORAH KAREN MOROZ and JANE ALEXIS MARION, MICHAEL ROGER PINET, EDWIN SEVELS, SAMUEL FREDERICK CHARLES SHEPHERD and SHAUNA TAYLOR (formerly Vance H. Egglestone), Plaintiffs

– AND –

ELLIOTT THOMPSON BARKER, GARY J. MAIER and HIS MAJESTY THE KING IN RIGHT OF ONTARIO, Defendants

Before: E.M. Morgan, J.

Counsel: Joel Rochon, Peter Jervis, Golnaz Nayerahmadi, Matthew Taylor, for the Plaintiffs Sam Rogers, for the Defendants, Barker and Maier Stacey Hsu and Bhavini Lekhi, for the Defendant, Ontario

Heard: August 14, 2023

Approval for Release of Costs

[1] Counsel for the Plaintiffs have filed a Motion Record at this case conference seeking an Order permitting Rochon Genova LLP to retain the costs awarded to the Plaintiffs. This includes costs awarded by this Court and the Court of Appeal for Ontario, as well as the costs agreed to by the parties for the Defendants’ unsuccessful applications for leave to appeal to the Supreme Court of Canada. It also includes post-judgment interest on these cost awards.

[2] Plaintiffs’ counsel point out that these costs have been awarded and are being included as part of the amount that Plaintiffs’ counsel are charging as a contingency fee authorized under the Contingency Fee Retainer Agreements signed by the Plaintiffs.

[3] The total amount of costs awarded to the Plaintiffs and sought to be released comes to $5,673,459.42, plus any interests accrued to the date of the funds’ release. This will bring Rochon Genova LLP’s overall compensation for this action to a total of $7,414,251.

[4] Defendants’ counsel advise that they take no position on this request by Plaintiffs’ counsel, on the understanding that it does not impact on them. It does not appear to me to impact on either set of Defendants. The costs in issue have already been paid by the Defendants pursuant to previous orders; the only issue here is the release of those funds to Plaintiffs’ counsel.

[5] Plaintiffs’ counsel submit that the requirements of the Solicitors Act have been satisfied. In the Contingency Fee Retainer Agreements, the Plaintiffs each consented to the retention of costs by Rochon Genova LLP. These costs are in addition to the contingency fee Rochon Genova LLP is entitled to under those Agreements. Further, counsel advise that 26 of the 27 successful Plaintiffs have executed a consent confirming their agreement to Rochon Genova LLP retaining the costs awarded, in addition to the Contingency fee Rochon Genova LLP is entitled to under their Retainer Agreement.

[6] Plaintiffs’ counsel also point out, accurately, that there are exceptional circumstances in this case that warrant the retention of costs by Rochon Genova LLP. These include the high risk assumed by Rochon Genova LLP and the substantial time and resources expended to prosecute this action over the course of more than two decades.

[7] It also must be taken into account that the claims advanced in the action were both novel and complex, including (but not limited to) the claim that Ontario and the Defendant physicians owed, and breached, fiduciary duties to involuntary psychiatric patients left in their care. The complexity of the case is demonstrated by the fact that it was in mid-stream, pursuant to a ruling by the Court of Appeal, reconstituted from a class action to a mass tort action prior to embarking on a lengthy process of discovery and, finally, trial.

[8] In fact, the action entailed as protracted a procedural history as I have ever seen, spanning approximately 23 years and involving at least 36 decisions rendered by all levels of Court, including three decisions by the Court of Appeal for Ontario and a decision by the Supreme Court of Canada denying the Defendants’ applications for leave to appeal. The Defendants mounted a thorough and, given the nature of the claim, appropriately aggressive defense throughout the action, including during the 72-day trial before this Court. Plaintiffs’ counsel were ultimately successful, but that success consumed considerable time and resources.

[9] Finally, any consideration of costs and the efforts expended by Plaintiffs’ counsel must take into account the circumstances of the Plaintiffs, most of whom were institutionalized throughout the action. This necessitated considerable time spent by lawyers and by Rochon Genova LLP support staff in attending to various client management issues, particularly ongoing discovery obligations and, of course, trial preparation and attendance.

[10] In my view, the Contingency Fee Retainer Agreements executed by the Plaintiffs are fair and reasonable given the complexity and risks of the litigation. Rochon Genova LLP performed admirably in a difficult action. In the result, the Plaintiffs were well represented and Plaintiffs’ counsel has contributed to the law on fiduciary duties and other important legal issues.

[11] The amount sought complies with section 28.1(8) of the Solicitors Act. As Justice Perell observed in Oakley & Oakley Professional Corporation v. Aitken, 2011 ONSC 5613, at para 16, “the policy concerns that underlie s. 28.1 (8) of the Act is that lawyers’ fees should not be excessive and that there should be no ‘double-dipping.’” There is nothing excessive or improper about the request being made here. Rochon Genova LLP has fairly earned the costs that it seeks to retain and the contingency fee it is charging.

[12] There shall be an Order to go as submitted by Plaintiffs’ counsel and revised by me today.

Morgan J. Date: August 14, 2023