



COURT OF APPEAL FOR ONTARIO

CITATION: Barker v. Barker, 2018 ONCA 255

DATE: 20180320

DOCKET: C63938 and C63967

Simmons and Pepall JJ.A. and Fragomeni J. (
ad
    hoc
)

BETWEEN

Reginald Barker, Jean-Paul Belec, Eric Bethune
    (formerly Jean-Jacque Berthiaume), Joseph Bonner, William Brennan, Stephen
    Carson, Roy Dale, Maurice Desrochers by the Estate Trustee Lorraine Desrochers,
    Donald Everingham, John Finlayson, Robert Frost, Terry Ghetti, Robert Haberle,
    Bruce Hamill, Eldon Hardy, William Hawboldt, Danny A. Joanisse, Russ Johnson,
    Stanley Kierstead, Denis LePage, Christian Magee, Douglas McCaul, William A.
    McDougall, Brian Floyd McInnes, Allen McMann, Leeford Miller, James Motherall,
    Michael Roger Pinet, Edwin Sevels, Samuel Frederick Charles Shepherd and Shauna
    Taylor (formerly Vance H. Egglestone)

Plaintiffs (Respondents)

and

Elliott
    Thompson Barker, Gary J. Maier and

Her Majesty the Queen in
    Right of Ontario

Defendants (Appellants)

William D. Black and Sam Rogers, for the appellants
    Elliot Thompson Barker and Gary J. Maier

Sara Blake and Meagan Williams, for the appellant Her
    Majesty the Queen in Right of Ontario

Joel P. Rochon, Peter R. Jervis and Golnaz Nayerahmadi,
    for the respondents

Heard: March 13, 2018

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated June 1, 2017, with reasons reported at 2017
    ONSC 3397, 39 C.C.L.T. (4th) 89, and from the costs order, dated July 18, 2017,
    with reasons reported at 2017 ONSC 4350, 39 C.C.L.T. (4th) 140.

REASONS FOR DECISION

[1]

The appellants, Elliott Thompson Barker, Gary J.
    Maier and Her Majesty the Queen in Right of Ontario (the Crown), appeal from
    the June 1, 2017 order of the motions judge in which he:

a.

dismissed the appellants motions seeking to have the respondents
    action dismissed as statute-barred or barred by the doctrine of laches;

b.

granted the respondents partial summary judgment for breach of
    fiduciary duty; and

c.

ordered a trial or additional summary judgment motions to prove
    victimization, harm, causation of harm and quantification of damages.

The appellants also seek leave to
    appeal the motions judges costs order in favour of the respondents in the
    amount of $282,504.34.

[2]

The respondents were patients committed to the
    Oak Ridge Division of the Mental Health Centre in Penetanguishene, Ontario, at
    various times between 1966 and 1983.  They were subjected to intensive therapy
    programmes designed in part by the appellant Dr. Barker for Oak Ridges Social
    Therapy Unit which he and the appellant Dr. Maier oversaw.

[3]

In 2000, one of the respondents commenced a
    proposed class action.  The claims included breach of fiduciary duty, battery,
    negligence and contravention of common law principles and international law
    norms relating to the use of torture and cruel, inhumane or degrading treatment
    and punishment.  The respondents have also alleged there was a lack of informed
    consent.

[4]

The pleading asserts that patients at Oak Ridge
    were forced to participate in experiments that involved both psychological and
    physical torture. Examples include: forcing a patient to sit in a space of
    approximately three square feet in which he would be allowed to move only four
    times during a four hour session; placing patients nude in a soundproof,
    windowless, continuously ventilated room, eight feet by ten feet, often cuffed
    to one another for periods
of
up to two weeks;
    and administering to patients combinations of hallucinogenic, delirium-producing,
    psychosis-producing or mind-altering drugs.

[5]

Certification of the class proceeding was denied
    in 2003 and, after an unsuccessful appeal, a motion was granted in 2006 to
    allow the action to continue as a multi-party proceeding.

[6]

The procedure underlying this appeal was
    unconventional. Although the issue of limitation periods had frequently been
    raised in the past, it had not been resolved.  Indeed as far back as 2001,
    Cumming J. had indicated that the limitation issue should be dealt with on a
    proper record.

[7]

On April 14 and May 6, 2016, the appellant
    physicians and the Crown brought motions for summary judgment asking that the
    action be dismissed on the basis that there was no genuine issue requiring a
    trial as the action was statute-barred due to the expiry of the applicable
    limitation period or alternatively, laches.  In support of their motions they
    relied on the pleadings and proceedings, a yet to be sworn affidavit of a law clerk,
    and the transcripts of the respondents examinations for discovery.

[8]

By endorsement dated May 10, 2016, the motions
    judge, who was managing the action, established a schedule for delivery of the
    appellants summary judgment material and a cross-motion to be brought by the
    respondents for summary judgment.

[9]

The motions judge amended the scheduling
    direction on October 28, 2016 to provide for, among other things, the extension
    of the date for delivery of the respondents cross-motion to November 28, 2016.
     The respondents never brought any such cross-motion for summary judgment, but
    did serve a motion record for summary trial on February 28, 2017.  That motion
    for summary trial was not before the motions judge and is not the subject matter
    of this appeal.

[10]

On December 5, 2016, the motions judge granted a
    further direction.  He scheduled the appellants summary judgment motions and
    stated that the record for the motions was now frozen.  He then wrote: The
    motion will be argued on the
assumption
that the
    defendants liability is established and the legal issue to be determined is
    whether any statutory limitation periods bar the plaintiffs claims (emphasis
    in original).  No one sought to attempt to appeal this direction.

[11]

The motions judge subsequently heard the appellants
    summary judgment motions.  In his written reasons for decision he noted that
    during the course of argument, he had advised the parties that he was of the
    view that there were four ways of deciding the motions.  He identified them as
    follows:

1)

grant the motions and dismiss the action;

2)

adjourn the motions for additional evidence on issues for which
    there were genuine issues requiring a trial, but which might be resolved by
    further summary judgment motion(s);

3)

dismiss the motions and reserve the limitations issue to trial; or

4)

dismiss the motions but grant a notional cross-motion by the
    respondents for partial summary judgment dismissing the limitations defence and
    ordering the action to proceed for a determination of the respondents claims.

[12]

However, while writing his reasons, the motions
    judge decided to resolve the motions on a fifth basis: he would grant a
    notional cross-motion by the respondents for a partial summary judgment of
    their claim for breach of fiduciary duty and order a trial or additional
    summary judgment motions to prove victimization, harm and causation of harm,
    and to quantify the individual respondents damages, if any.  He went on to
    conclude that the
Class Proceedings Act, 1992
, S.O. 1992, c. 6,
    suspended the running of any not already expired limitation periods.  When the
    proposed class action was commenced in 2000, the respondents claim for breach
    of fiduciary duty was extant and not subject to any limitation period at that
    time and thereafter.  There was no defence to the breach of fiduciary duty
    claim because the programmes designed by Dr. Barker and implemented by the physicians
    and other employees at Oak Ridge were torture and a degradation of human
    dignity.  It was an inexcusable breach of fiduciary duty for a physician to
    torture a patient.  The motions judge was also not persuaded that the equitable
    defence of laches should operate to bar the respondents claim for breach of
    fiduciary duty.

[13]

The parties were unable to agree on the content
    of the order and attended before the motions judge to settle the order.  The
    preamble to the signed order commences with: These motions for summary
    judgment, made by the Defendants for an order dismissing the action as
    statute-barred.  It lists the materials before the court as consisting of the
    pleadings, the Supplementary Motion Record of the Defendants, the Exhibits to
    the Transcripts of the Cross-Examination of Drs. Barker and Maier and a third
    staff member, facta, briefs of authorities, and certain earlier decisions in
    the action.

[14]

The Supplementary Motion Record only contained
    the appellants notices of motion and the parties pleadings.  The Exhibits
    referred to in the order were served in February 2017, after the motions judge
    froze the record, as part of the respondents motion for summary trial, which
    was not proceeding before him.

[15]

The appellants submit that they were denied
    procedural fairness and that partial summary judgment for breach of fiduciary
    duty ought not to have been granted to the respondents by the motions judge.

[16]

We agree.

[17]

In December, the motions judge had directed that
    the appellants motions proceed on the basis that liability was assumed.  Given
    this direction, the appellants could not have reasonably expected that partial
    summary judgment for breach of fiduciary duty would be granted.  At no time had
    the appellants conceded liability.  The appellants statements of defence
    disputed the allegations of what occurred and the nature of the respondents
    experience at Oak Ridge and the motions judge erred in concluding otherwise.  Moreover,
    the parties had not placed the evidentiary foundation for such an order before
    the motions judge.  Nor, based on the procedure established by the motions
    judge, would they have expected that they would be denied the opportunity to
    advance argument on whether any fiduciary duty was owed and if so, whether it
    was breached.

[18]

In addition, at the hearing of the motions themselves,
    the motions judge had outlined for the parties the potential avenues for
    disposition of the motions.  However, his fifth alternative of devising a
    notional cross-motion for partial summary judgment by the respondents for their
    claim of breach of fiduciary duty, which was never raised with the parties,
    amounted to a denial of procedural fairness.  The relief granted was
    inconsistent with the December direction and also denied the appellants the
    opportunity to file evidence and make submissions on the issue.

[19]

We therefore set aside paragraphs 2 and 3 of the
    June 1, 2017 order.

[20]

The appellants also submit that the motions
    judge erred in dismissing their motions and in concluding that the respondents
    claims were not statute-barred.  In oral submissions before this court, they
    submitted that, before the motions judge, they had proceeded to argue the
    motions as Rule 21 motions.

[21]

We cannot accept this submission.  First, it
    would appear from the directions, the appellants motions for summary judgment,
    the motions judges reasons and the order itself that the motions judge was
    responding to a motion for summary judgment, not a Rule 21 motion.  Indeed, the
    notices of motion, originally prepared prior to the December direction, were
    re-served and relied upon by the appellants for the purposes of the motions
    heard by the motions judge.  In their notices of motion, the appellants stated
    that the motions were for [s]ummary judgment dismissing this action as against
    the defendant physicians [and as against the Crown] on the basis there is no
    genuine issue requiring a trial as the action against them [and the Crown] is statute-barred
    or, in the alternative, is barred by the doctrine of laches.

[22]

As such, it was incumbent on the appellants as
    moving parties to show that there was no genuine issue requiring a trial.  We
    are not persuaded that the appellants met this burden.  The application of the
    limitation periods and the laches doctrine advanced by the appellants requires
    a characterization of the conduct of the appellants and the relationship
    between the parties.  The parties proceeded on the assumption that the
    appellants liability was established.  The respondents pleading included very
    serious allegations of torture and degradation of human dignity.   The motions
    judge, who has case managed the action for several years, concluded that the
    limitation period statutes do not encompass an action based on breach of
    fiduciary duty where the act of professional practice or experimentation is
    torture.  Indeed, when pressed in oral argument, counsel for the appellant
    physicians did not preclude the possibility that allegations of torture would
    not be captured by limitation statutes.

[23]

Based on the December procedure adopted by the
    parties and the court, the appellants failed to show that there was no genuine
    issue requiring a trial on the breach of fiduciary duty limitation and laches
    issues.  These issues do not simply engage questions of law; rather, they
    require factual determinations, on a proper record, on the nature and
    characterization of the appellants conduct and the relationship between the
    parties.

[24]

As for the causes of action other than breach of
    fiduciary duty (battery, negligence and breaches of common law and
    international norms), the appellants argue that it is implicit in the motions
    judges reasons that he decided the limitations issues in their favour.  In any
    event, they submit the record discloses such limitation periods have expired. 
    We note, however, that paragraphs 29 and 30 of the motions judges reasons make
    it clear he did not fully analyze the respondents arguments in this regard,
    including arguments concerning the retroactive application of s. 16(1)(h.2) of
    the
Limitations Act, 2002
, S.O. 2002, c. 24, Sch. B, mental incapacity,
    and the doctrine of discoverability.  Further, given the state of the record
    before us, we are of the view that the applicable limitations periods, if any, for
    the other causes of action are best dealt with at trial, along with the
    applicable limitation period, if any, for the breach of fiduciary duty claim.

[25]

Finally, while the Crown now relies on the
Proceedings
    Against the Crown Act
, R.S.O. 1990, c. P.27, its summary judgment motion
    was premised on assumed liability and expiry of applicable limitation periods.
    Moreover, the facta filed before the motions judge make no reference to that
    Act.  In the circumstances, we decline to consider this issue.

[26]

In summary, the motions judges order is varied
    to delete paragraphs two and three and the action is remitted for trial or
    summary trial as deemed appropriate to the Regional Senior Judge for the assignment
    of a trial judge.

[27]

This leaves the issue of costs.  As mentioned,
    the motions judge awarded the respondents costs of $282,504.34 on a partial
    indemnity scale.  This award included amounts for steps not directly related to
    the motions that were heard.  In our view, an award of $100,000 is fair and
    reasonable in the circumstances.  In this regard, we note that the appellant physicians
    took the position before the motions judge that their costs amounted to
    $65,836.  We substitute $100,000 for the amount awarded by the motions judge
    together with interest at the rate he awarded.

[28]

With respect to costs of the appeal, the parties
    agreed that the successful party should receive costs fixed in the amount of
    $25,000 all inclusive on a partial indemnity basis.  Although we have varied
    the motions judges order to delete paragraphs two and three, the respondents
    were substantially successful on appeal.  We therefore order costs to the
    respondents on a partial indemnity basis in the amount of $25,000 all inclusive.

Janet Simmons J.A.

S.E. Pepall J.A.

Fragomeni J. (
ad hoc
)


