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CIVIL PROCEDURE - Parties - Class or representative actions - Procedure

Thursday, July 06, 2017 @ 8:14 AM  


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Cross-motions for summary judgment in a proposed class action. The two representative plaintiffs were involuntary patients detained in the Oak Ridge Division at the Penetanguishene Mental Health Centre operated by the defendant, the Province of Ontario. Between 1966 and 1983, the two defendant physicians, Barker and Maier, oversaw the Social Therapy Unit at Oak Ridge. The 31 putative class members underwent programs designed by Barker for the Unit. The plaintiffs alleged class members were subjected to punitive, degrading and abusive human experimentation under the auspices of research. In 2000, the plaintiffs sued the defendants for breach of fiduciary duty. They also sued the physician defendants for assault and battery, and the Crown for negligent failure to supervise the physicians. In 2006, the action was reconstituted from a class proceeding to a multi-plaintiff action. The defendants sought summary judgment on the basis the causes of action were statute-barred. The Court indicated that, following consideration of the limitations defence, it would proceed by granting a notional cross-motion by the plaintiffs for partial summary judgment of their claim for breach of fiduciary duty.

HELD: Defendants' motion dismissed and plaintiffs' motion allowed in part. The commencement of a proposed class action in 2000 suspended unexpired limitation periods for putative class members. In 2000, there was no limitation period for a breach of fiduciary duty claim. The plaintiffs' claim for breach of fiduciary duty was extant and not statute-barred when the action was commenced. The claim was separate and apart from the statute-barred claims for battery or negligence. The reconstitution of the proposed class action as a multi-plaintiff action in 2006 did not affect the fiduciary duty claim. The plaintiffs suffered from serious mental illness and were among the most vulnerable members of society. There was no substantive or technical defence to the fiduciary duty claim. The programs designed by Barker and implemented at Oak Ridge were torture, and a degradation of human dignity. A physician's torture of a patient was an inexcusable breach of fiduciary duty. The Court ordered a trial or additional summary judgment motions to prove victimization, harm, causation of harm and to quantify the individual plaintiffs' damages, if any.

Barker v. Barker, [2017] O.J. No. 2808, Ontario Superior Court of Justice, P.M. Perell J., June 1, 2017. Digest No. TLD-July32017008