Barker v. Barker, 2017 ONSC 3397 (CanLII)

On the defendant’s summary judgment motion over the limitation period in this class action the plaintiff was granted partial judgment for breach of fiduciary duty.

Date Heard: May 16-17, 2017 | Full Decision [PDF]

Between 1966 and 1983 the defendants physicians Drs. Barker and Maier oversaw the Social Therapy Unit at the Oak Ridge Mental Health Centre and designed and administered various “programs” to residents of the facility. The plaintiffs – former patients – alleged that these ‘MAPP’, ‘DDT’ and ‘Capsule’ programs amounted to “degrading and abusive human experimentation that could not be justified on medical or scientific grounds,” and commenced a proposed class action in 2000, mainly framing the action in the tort of battery and breach of fiduciary duty.

Over the next 16 years, plaintiffs were added and removed, and the action was reconstituted as a multi-plaintiff action in 2006 after the motion for certification failed, with amended pleadings being exchanged over the next number of years.

At each stage, the defendants raised their position on limitation period, but the matter was never definitively determined, prompting the defendants to bring the present motion “to resolve once and for all the issue of whether the claims of the 31 co-Plaintiffs in the multi-plaintiff proceeding are statute-barred.”

The Plaintiffs plead that the “treatment” that they were subjected to constituted the tort of battery, was conducted without their consent (informed or otherwise) and amounted to a breach of the doctors’ fiduciary duty to their patients.

All of the events giving rise to the Plaintiffs claims occurred in the 1960s, 1970s and 1980s. Under the transition provisions in s. 24(3) of the Limitations Act, 2002, if the former limitation period expired before January 1, 2004, the claims were statute-barred.

The Defendants’ position, therefore, was that the action was statute barred under the Medical Act, the Health Disciplines Act, 1974 the Mental Hospitals Act, the Limitations Act, the Mental Health Act, 1967 and the Public Authorities Protection Act, as well as being subject to the doctrine of laches.

While the Plaintiffs variously argued that their action was not statute-barred on the basis of discoverability, mental incapacity and continuance of injury, Justice Perrell did not address any of these arguments, preferring instead to frame the analysis under the doctrine of fiduciary duty.

His Honour summarized the Defendant physicians’ argument on fiduciary duty as follows:

[114] The Defendants make the categorical argument that a breach of fiduciary duty claim against a physician or a medical institution is encompassed by what is a statute-barred claim for: (1) negligence or malpractice by reason of professional services (Medical Act or Health Disciplines Act); (2) anything done or omitted to be done in pursuance of the Mental Health Act; (3) an act done in pursuance or execution or intended execution of any duty or authority under the Mental Hospitals Act; (4) assault, battery, wounding or imprisonment (Limitations Act); (5) an action for negligence (action on the case, Limitations Act); (6) an act done in pursuance or execution or intended execution of any statutory or other public duty or authority (Public Authorities Protection Act), or (7) an act in respect of any alleged neglect or default in the execution of any statutory or other public duty or authority (Public Authorities Protection Act).

[115] It is only a slight oversimplification to say that the Defendants’ argument is that if there is a physician-patient relationship, then any wrongdoing by the physician associated with professional services or medical treatment causing harm to the patient, including a breach of fiduciary duty is categorically a subset of the malpractice or other tort claims and, therefore, subject to the limitation periods that would be applicable to those tort claims.

After reviewing the Supreme Court’s characterization of a physician’s fiduciary duty to his or her patient in leading cases like McInerney v. MacDonald, [1992] 2 S.C.R. 138 and Norberg v. Wynrib, [1992] 2 S.C.R. 226, Justice Perrell rejected the Defendants’ argument that a doctor’s breach of fiduciary duty was merely a subset of malpractice:

[116] In my opinion, the case at bar is an example of a case where the Defendants’ breach of fiduciary duty is not subsumed by the tort claims be they claims for assault, battery, wounding, negligence, malpractice by reason of a professional service, or for acts or omissions in pursuance of duties or authority under the Mental Health Act, the Mental Hospitals Act, or the Public Authorities Protection Act. In the immediate case, there is a genuine and discrete breach of fiduciary duty claim, which, as it happens, up until the coming in force of the Limitations Act, 2002, in 2004, did not have any limitation period. Thus, subject to the doctrine of laches, which I would not apply because of, among other things, the egregiousness of the breach of fiduciary duty, the Plaintiffs’ breach of fiduciary duty claim is not statute-barred.

In concluding as he did, Justice Perrell was particularly persuaded by Justice McLachlin’s findings in Norberg that there can be a free-standing claim for breach of fiduciary duty not tied to any tortious medical care:

95. But the most significant consequence of applying the doctrine of fiduciary obligation to a person in the position of Dr. Wynrib is this. Tort and contract can provide a remedy for a physician’s failure to provide adequate treatment. But only with considerable difficulty can they be bent to accommodate the wrong of a physician’s abusing his or her position to obtain sexual favours from his or her patient. The law has never recognized consensual sexual relations as capable of giving rise to an obligation in tort or in contract. My colleagues, with respect, strain to conclude the contrary. La Forest J. does so by using the contractual doctrine of relief from unconscionable transactions to negate the consent which the plaintiff, as found by the trial judge, undoubtedly gave. The problems inherent in this approach have already been noted. Sopinka J., at p. 317, finds himself tacking damages for the sexual encounters onto the breach of the duty to treat on the ground that “[t]he sexual acts were causally connected to the failure to treat and must form part of the damage suffered by the appellant”. But can damages flow from acts the law finds lawful simply on the ground they are “connected” to damages for an actionable wrong? And what of the patient whose medical needs are fully met but who is sexually exploited? On Sopinka J.’s reasoning she has no cause of action. These examples underline the importance of treating the consequences of this relationship on the footing of what it is — a fiduciary relationship — rather than forcing it into the ill-fitting molds of contract and tort. Contrary to the conclusion of the court below, characterizing the duty as fiduciary does add something; indeed, without doing so the wrong done to the plaintiff can neither be fully comprehended in law nor adequately compensated in damages.

His Honour found that regardless of the fact that the Defendants might have been acting in good faith, “that does not negate the circumstance that it is a breach of a physician’s ethical duty to physically and mentally torture his patients even if the physician’s decisions are based on what the medical profession at the time counts for treatment for the mentally ill.”

Justice Perrell rejected the defence of laches on the basis that the Defendants were unable to demonstrate that the Plaintiffs had either (a) acquiesced in the defendant’s conduct; or (b) caused the defendant to alter his or her position in reasonable reliance on the plaintiff’s acceptance of the status quo.

After dismissing the Defendants’ motion for judgment, His Honour found that the Plaintiffs’ failure to bring a cross-motion for judgment did not preclude him from pro-actively granting the Plaintiffs partial summary judgment of their claim for breach of fiduciary duty. Based on the uncontested evidence before him on the nature of the “programs,” and the treatment to which the Plaintiffs had been subjected under the Defendants’ care, Justice Perrell found that the Defendants had indeed breached the fiduciary duty they had owed to their former patients. The breach having been judicially determined, the Plaintiffs are now only required to bring a trial or further motion to prove injury, causation and quantification of damages.

Read the full decision [PDF]
Jillian Evans
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