In Barker v. Barker, 2022 ONCA 567, a unanimous three-judge panel of Ontario’s top court largely upheld the findings of a trial judge who awarded general and punitive damages ranging from $1,000 and $2.7 million to 28 patients psychologically and physically abused after involuntary admission to the Oak Ridge maximum security facility in Penetanguishene, Ont., between 1966 and 1983.
“This is a monumental victory for the 28 individual plaintiffs, but it’s also an extremely important judgment for all people with lived experience of mental health issues,” said Toronto lawyer Anita Szigeti, the president of the Law and Mental Disorder Association.
Anita Szigeti, Law and Mental Disorder Association
“On a macro level, what the decision does is to recognize that when physicians acting within publicly funded institutions stray from the obligations they clearly owe to patients, over whom they have complete control, they are going to face consequences, and potential damages,” she added.
According to the Appeal Court ruling, the 28 plaintiffs arrived at Oak Ridge via a variety of avenues, including committal under the Mental Health Act, warrants of remand from courts or penitentiaries, or after they were found “not guilty by reason of insanity,” the term formerly used to describe defendants found not criminally responsible.
At the heart of the matter was the facility’s Social Therapy Unit (STU) — a community treatment model that gave patients a say in their individual and group health decisions, and three of its programs in particular: DDT, an experimental drug therapy that saw patients subjected to hallucinogens including LSD; The Capsule, in which groups of naked patients were locked in a constantly lit windowless room for up 11 days at a time; and MAPP, a severe disciplinary program implemented by fellow patients that a defence expert said was designed to create symptoms of psychological distress in participants.
The case has a long history, initially making its way to the courts in 2000 as a proposed class action, before its reconstitution as an individual action when certification was denied, by 28 plaintiffs against the province and physicians Elliott Barker and Gary Maier — former clinical directors of the STU.
It eventually reached trial in 2019, proceeding across 10 weeks in two parts: the first dealing with liability and causation, before a second dealing with quantification of damages.
In their judgment, Ontario Appeal Court Justices William Hourigan, Gary Trotter and Benjamin Zarnett upheld the trial judge’s conclusion that both Ontario and the physicians were liable for breach of fiduciary duty to all the respondents, except for one who never actually took part in any of the STU programs.
In doing so, the judges rejected the province’s limitations defence, as well as its claim that the Mental Health Act imposed no duty on it to any of the respondents. Imposing such a duty, Ontario argued, would conflict with its duty to keep the public safe from dangerous offenders.
“Put simply, a statutory obligation of a psychiatric facility of observation, care, and treatment of a patient suffering from a mental disorder is one that necessarily implies that in the exercise of the psychiatric facility’s power and responsibility in connection therewith, it will act solely in the patient’s best interests. There would be little meaning to the concept of ‘observation, care and treatment’ of a person with a mental disorder in a medical facility were it otherwise,” the decision reads.
However, the Appeal Court concluded that the trial judge did err in finding that the physicians were liable to all the plaintiffs in assault, but upheld his finding that the requirements of battery were established by the nine patients directly administered drugs by the doctors as part of the DDT program.
The panel also reduced the damages payable to some plaintiffs, but upheld punitive damages awards made to 14 former patients.
Frank McLaughlin, a partner at McCarthy Tétrault LLP, said that his clients, the defendant physicians Barker and Maier, are still considering proceeding with an appeal.
“Under the circumstances, we decline to make any comment on the decision at this time,” he added.
Maher Abdurahman, a spokesperson for Ontario’s Ministry of the Attorney General, also declined an opportunity to comment.
Joel Rochon, the managing partner of class action firm Rochon Genova LLP, and one of the lawyers for the plaintiffs, called the Appeal Court decision a “historic victory for justice.”
“These individuals who suffered so profoundly as vulnerable teenagers and young men have found justice. It has been a decades- long battle through the courts,” he said. “Their claims for abuse and torture by the Ontario government and its doctors have finally been vindicated.”
“Despite the considerable progress we have made in terms of mental health in Canada, this case highlights the need to remain vigilant and treat all victims of mental health, regardless of their past circumstances, with care and dignity — abuse and even torture can never be tolerated and will be sanctioned,” Rochon added.
Szegeti said she was “frankly shocked” by some of the arguments advanced by Ontario as it denied owing any duty to detained psychiatric patients.
“They seemed to be throwing spaghetti against the wall to see what would stick. Thankfully, it seems none of it did,” she said. “The upshot, I’d suggest, is that people detained by the state in psychiatric hospitals can now point to this judgment as an affirmation that such a duty is owed to act solely in the best interest of the patient. That is going to have ongoing ramifications and provide ongoing benefits for people similarly situated.”