More than half a million dollars in costs awarded to victims of abuse in mental health institution

Mixed findings in trial, but overall decision was in favour of plaintiffs: Ontario Court of Appeal

More than half a million dollars in costs awarded to victims of abuse in mental health institution

In a case assessing costs against two physicians and the Ontario government in a lawsuit over abuse in a mental health institution, the court found that, while the trial led to mixed success, it was appropriate to consider the victory the plaintiffs achieved overall rather than on an issue-by-issue basis.

Between 1966 and 1983, the 28 respondents were involuntarily admitted to the maximum-security Oak Ridge division of the Mental Health Centre in Penetanguishene, ON, and were held in its social therapy unit (STU).

They sued the Ontario government, which administered the Oak Ridge division, as well as two doctors who served as the STU’s clinical directors at the time. They asked for damages for breach of fiduciary duty, assault, battery, and intentional infliction of emotional distress in connection with three of the STU’s programs: the total encounter capsule, defence disruptive therapy, and the motivation, attitude, participation program (MAPP).

The Ontario Superior Court of Justice dismissed the claims for intentional infliction of emotional distress. However, the trial judge found that the province and the physicians were liable for the following:

  • breach of fiduciary duty, including through subjecting the respondents to harmful procedures without a reasonable prospect of benefit and without informed consent
  • assault through the MAPP’s design, administration, and implementation
  • battery via the three STU programs’ non-consensual, non-trivial invasion of bodily integrity.

The judge separately assessed the respondents’ claims for damages and awarded amounts ranging from under $10,000 to over $2 million. The province and the doctors appealed, while the respondents cross-appealed.

In Barker v. Barker, 2022 ONCA 567, the Ontario Court of Appeal allowed the appeals and partly allowed the cross-appeal. It affirmed the trial judge’s decision holding the appellants liable for breach of fiduciary duty to all respondents except one appellant, and the findings on battery relating to nine respondents. It reversed the judge’s findings on assault, reduced the damages awards for two respondents, and overturned one damages award in the amount of $1,000.

The parties could not agree on costs. The respondents sought $480,250 for fees and $36,303.35 for disbursements, both inclusive of harmonized sales tax. The appellants challenged this quantum of costs and requested to vary the costs that the judge awarded.

Respondents awarded full costs

In Barker v. Barker, 2022 ONCA 652, the appellate court awarded the respondents the costs of the appeals and cross-appeal in the all-inclusive sum of $516,553.35. It refused to vary the costs awarded by the trial judge.

The appellate court held that the respondents were entitled to the full amount of the appeal costs they claimed. The court accepted that there was mixed success but saw no basis to reduce the costs claimed for two reasons.

First, the trial judgment stayed mostly intact and second,the amount requested was reasonable, the appellate court found. The physicians incurred actual fees of $539,340, while the province’s actual fees amounted to $270,713.50. These amounts reflected the litigation’s complex nature, the court said – the case involved a 71-day trial with many legal and factual issues and an award of damages of $9.6 million in total and costs of $4.9 million.

On the trial costs, the appellants asked for a reduction of $462,392.85 based on the fact that the judgment against one appellant was overturned.

Disagreeing, the appellate court concluded that setting aside a $1,000 judgment did not justify making the adjustment in costs that the appellants wanted. It was neither realistic nor equitable to try to extricate the costs corresponding to one appellates’s claim out of several from the global costs award, given that it was a minor part of the proceedings, the court said.

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