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CITATION: Barker V. Barker, 2020 ONSC 3746 COURT FILE NO.: 00-CV-199551 DATE: 20200625

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CITATION: Barker V. Barker, 2020 ONSC 3746 COURT FILE NO.: 00-CV-199551 DATE: 20200625 CITATION: Barker v. Barker, 2020 ONSC 3746 COURT FILE NO.: 00-CV-199551 DATE: 20200625 ONTARIO SUPERIOR COURT OF JUSTICE ) BETWEEN: ) ) REGINALD BARKER, JEAN-PAUL ) Joel Rochon, Peter Jervis, Golnaz BELEC, ERIC BETHUNE (formerly Jean- ) Nayerahmadi, and Adam Babiak, for the Jacque Berthiaume), JOSEPH BONNER, ) Plaintiffs WILLIAM BRENNAN by the Estate Trustee ) MAXWELL BRENNAN, STEPHEN ) CARSON, ROY DALE, MAURICE ) DESROCHERS by the Estate Trustee ) William Black, Sam Rogers, Meghan Bridges, LORRAINE DESROCHERS, DONALD ) and Bonnie Greenaway, for the Defendants, EVERINGHAM, JOHN FINLAYSON, ) Elliot Thompson Barker and Gary J. Maier TERRY GHETTI, BRUCE HAMILL, ) ELDON HARDY, WILLIAM ) HAWBOLDT by the Estate Trustee ) BARBARA BROCKLEY, DANNY A. ) Sarah Blake, Ann Christian-Brown, and JOANISSE, RUSS JOHNSON, STANLEY ) Meagan Williams, for the Defendant, Her KIERSTEAD, DENIS LEPAGE, ) Majesty the Queen in Right of Ontario 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 ) HEARD: April 29-May 7, May 16-23, May ) 22-June7, June 17-20, Oct. 3-23, Dec. 2-6, ) 2019, Jan. 27-31, 2020 ) Page: 2 E.M. MORGAN J. I. Introduction to the claim II. The impugned programs a) History and theory of the STU b) Defense Disruptive Therapy c) LSD d) Total Encounter Capsule e) Motivation, Attitude, and Participation Program III. Informed consent IV. Research and experimentation V. Confinement and restraint VI. Plaintiffs’ histories and individual causation a) Reginald Barker i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm b) Jean-Paul Belec i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm c) Eric Bethune i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm d) Joseph Bonner i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm e) William Brennan i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm f) Stephen Carson i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm g) Roy Dale Page: 3 i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm h) Maurice Desrochers i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm i) Donald Everingham i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm j) John Finlayson i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm k) Terry Ghetti i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm l) Bruce Hamill i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm m) Eldon Hardy i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm n) William Hawbolt i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm o) Danny Joanisse i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm p) Russ Johnson Page: 4 i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm q) Stanley Kierstead i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm r) Denis LePage i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm s) Christian Magee i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm t) Douglas McCaul i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm u) Brian McInnes i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm v) Allen McMann i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm w) Leeford Miller i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm x) James Motherall i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm y) Michael Pinet Page: 5 i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm z) Edwin Sevels i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm aa) Samuel Shepherd i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm bb) Shauna Taylor i) Pre-Oak Ridge and index offense ii) Experience in the STU iii) Post-Oak Ridge experience iv) Causation and harm VII. Causes of action a) The Doctors’ breach of fiduciary duties b) The Doctors’ intentional torts c) The Crown’s breach of fiduciary duties d) The Crown’s knowing assistance and vicarious liability VIII. Liabilities and immunities of the Crown IX. Limitations and laches X. Summary of findings and disposition I. Introduction to the claim [1] The Plaintiffs were patients at the maximum-security Oak Ridge Division of the Mental Health Centre in Penetanguishene, Ontario (“Oak Ridge”), at various times between 1966 and 1983. Oak Ridge was (and its successor still is) a hospital facility for which the provincial Crown is by statute fully responsible. [2] All of the Plaintiffs were involuntarily admitted to Oak Ridge. Some of those admissions came as a result of Warrants of Remand from the courts, penitentiaries, and reformatories, others pursuant to Warrants of the Lieutenant Governor after having been found not guilty by reason of insanity (in the terminology of that era), and still others were involuntarily committed under the version of the Mental Health Act applicable at the time. [3] The action began its legal life in 2000 as a proposed class action, but has since been reconstituted as an individual action by the 28 named Plaintiffs. In a 2003 ruling that denied certification, Cullity J. identified the three programs at which the claim is specifically aimed: a mind-altering drug regime called Defence Disruptive Therapy (“DDT”), an isolation cell for group Page: 6 encounters, including hallucinogenic drug encounters, called the Total Encounter Capsule (the “Capsule”), and a strict physical disciplinary regime called the Motivation, Attitude, Participation Program (“MAPP”): Joanisse v Barker, 2003 CanLII 25791, at para 3. All three programs were carried out in the Social Therapy Unit (“STU”), a self-contained unit housed within Oak Ridge, primarily although not entirely run by either or both of the personal Defendants, Dr. Elliott Barker and Dr. Gary Maier (together, the “Doctors”). [4] In 2018, the Court of Appeal reversed a summary judgment that had been granted to the Plaintiffs and remitted this action for trial: Barker v Barker, 2018 ONCA 255. The Court indicated that the matter was to proceed by “trial or summary trial as deemed appropriate to the Regional Senior Judge for the assignment of a trial judge”: Ibid., at para 26. As I indicated in my first trial management conference with counsel, in assigning a trial judge Morawetz RSJ (as he then was) did not pre-determine the trial procedures; rather, he noted the age of the case and emphasized the need to proceed with as little further delay as possible. He accurately stated that, “[a]ll parties recognize that this proceeding should be expedited.”: Barker v Barker, 2018 ONSC 3998, at para 4, quoting Morawetz RSJ endorsement. [5] In an effort to expedite matters, the trial has proceeded as a hybrid summary and full trial. Each of the Plaintiffs has testified and been fully cross-examined in court. In addition, each has submitted an affidavit and/or agreed statement of fact which has served as part of their evidence in chief. While the initial plan for the trial was to have the affidavits and agreed statements entirely replace examination-in-chief for each of the Plaintiffs, it quickly became evident that testifying as to their own personal experience of Oak Ridge and the STU programs was an important part of the trial process that could not be entirely replicated by written evidence. Accordingly, each of the Plaintiffs had an opportunity to testify at some length in chief before being cross-examined in full. [6] Similarly, each of the expert witnesses – 2 on behalf of the Plaintiffs and 7 on behalf of the Defendants – have testified and been fully cross-examined in court. By agreement of the parties, each has submitted his or her expert report and any supplementary or reply reports into evidence and those reports represent part of their evidence in chief.
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