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Les allégations

Les allégations

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Court File No.

CV-09-376927CP00 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MARILYN DOLMAGE AS LITIGATION GUARDIAN OF MARIE SLARK and JIM DOLMAGE AS LITIGATION GUARDIAN OF PATRICIA SETH Plaintiffs - and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Defendant Proceeding under the Class Proceedings Act, 1992

PLAINTIFFS’OPENING ARGUMENT
(Common Issues Trial Commencing September 16, 2013)

KOSKIE MINSKY LLP 900-20 Queen Street West Toronto, ON M5H 3R3 Kirk M. Baert LSUC #:30942O Tel: (416) 595-2117 Fax: (416) 204-2889 Celeste Poltak LSUC #:46207A Tel: (416) 595-2701 Fax: (416) 204-2909 David Rosenfeld LSUC #:51143A Tel: (416) 595-2700 Fax: (416) 204-2894 Jody Brown LSUC #:58844D Tel: (416) 595-2709 Fax: (416) 204-2815 Garth Myers LSUC #:62307G Tel: (416) 595-2102 Fax: (416) 204-4924 Lawyers for the Plaintiffs

TO:

ATTORNEY GENERAL FOR ONTARIO Crown Law Office, Civil Law 720 Bay Street, 8th Floor Toronto, ON M5G 2K1 Robert Ratcliffe Tel: 416-326-4128 Fax: 416-326-4181 John Kelly Tel: 212-1161 Fax: 416326-4181 Sonal Gandhi Tel: 416 326-4146 Fax: 416326-4181 Lisa Brost Tel: 416 326-4008 Fax: 416 326-4181 Lawyers for the Defendant

Court File No. CV-09-376927CP00 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MARILYN DOLMAGE AS LITIGATION GUARDIAN OF MARIE SLARK and JIM DOLMAGE AS LITIGATION GUARDIAN OF PATRICIA SETH Plaintiffs - and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO Defendant Proceeding under the Class Proceedings Act, 1992 PLAINTIFFS’OPENING ARGUMENT (Common Issues Trial Commencing September 16, 2013) TABLE OF CONTENTS PAGE PART I - INTRODUCTION & BRIEF FACTUAL OVERVIEW ............................................... 1 PART II - COMMON ISSUES TO BE DETERMINED AT TRIAL ........................................... 6 PART III - THE COMMON ISSUES OF LAW AND FACT ...................................................... 7 Common Issue A: By its operation or management of Huronia from 1945 to 2009, did the defendant breach a duty of care it owed to the Resident Class to protect them from actionable physical or mental harm? ........................................................ 7 (1) (2) (a) Did the Crown owe a duty of care to the Resident Class? ..................................... 7 If the Defendant owed a duty of care to the Resident Class, what was the content of that duty? .............................................................................. 16 Overcrowding of the Institution –the Defendant owed a duty, over the full class period, to provide adequate facilities and to adhere to objectively determined rated bed capacities (BRC) and other prevailing standards (AAMD) so that the resident population would not exceed Huronia’ s capacity. ................................................................ 16 Understaffing of the Institution –the Defendant owed a duty, over the full time frame of the class period, to provide adequate supervision of Residents and to adhere to staffing levels for direct care staff to resident ratios prescribed by the AAMD standards .......................... 21

(b)

- ii -

(c)

Implementation of Appropriate Abuse Prevention Policies – the Crown owed a duty to implement and enforce effective abuse prevention and reporting policies ....................................................................... 25 Did the Crown breach its duties of care? ............................................................ 26 Crown’ s Admissions of General Breaches in its Own Evidence ......................... 26 Specific Breaches of the Crown’ s Duties of Care Owed to the Residents ........................................................................................................... 41 (i) Overcrowding of the Institution - The Crown breached this duty of care by failing to adhere to the AAMD Standards and its own internal facility standards (or Bed Rated Capacity) ......................................................................................... 41

(3) (a) (b)

Failure to Implement or Adhere to Recognized Standards Re Population Levels ....................... 41 Causal Effect of Breach of Duty to Maintain a Reasonable Population Level Overcrowding .................................................................................................................. 43 (ii) Understaffing of the Institution – the Crown breached this duty of care by failing to satisfy and/or implement recognized standard levels of staffing based on the AAMD ratios. ........................................................................................... 45

Failure to Implement or Adhere to Recognized Standards Re Staff to Resident Ratios .................................................................................................................. 45 Causal Effect of Breach of Duty to Maintain Adequate Staff to Resident Ratios – Understaffing ............................................................................................................................ 53 (iii) Implementation of Abuse Prevention and Reporting Policies – the Crown breached this duty of care by failing to implement effective policies which would prevent or minimize abuse, by failing to respond to information that abuse policies were not being adhered to and by failing to sufficiently educate staff on the policies or consequences of non-adherence. ............................................... 56 Crown’ s Acknowledgement of the Standard and Awareness of Breaches .................................. 57 Examples of Evidence of Chronic Abuse, Failure to Report and Employee Code of Silence .................................................................................................................................. 61 Common Issue B: By its operation or management of Huronia from 1945 to 2009, did the defendant breach a fiduciary duty owed to the Resident Class to protect them from actionable physical or mental harm? .................................................. 69 (1) (2) Did the Defendant owe a fiduciary duty to the Resident Class? .......................... 69 If the Crown owed a fiduciary duty to the Resident Class, what was the content of that duty? .............................................................................. 71

- iii -

(a)

Financial Exploitation – the Crown owed a fiduciary duty to the Residents not to use them to its own financial benefit or profit and not to use Residents’funds to offset the institution’ s own needs ......................... 71 Failure to Properly Investigate, Report and Respond to Abuse Allegations –the Defendant owed a fiduciary duty to the Residents to adequately investigate, report and respond to complaints or recommendations concerning abuse of Residents. .............................................. 72 The Reverse Onus of Proving Breach of Fiduciary Duty .................................... 73 Did the Defendant breach its fiduciary duty? ...................................................... 74 Financial Exploitation – the Defendant breached its fiduciary duty by failing to pay Residents market wages (or at all) for their work at Huronia and by misappropriating Residents’ monies to be diverted against the cost of running the institution .............................................. 74

(b)

(c) (3) (a)

Common Issue C: If the answer to either common issues (a) or (b) is “ yes” , can the court make an aggregate assessment of monetary relief as part of the common trial? .................................................................................................................. 81 (1) (2) The Legal Principles Governing Aggregate Awards of Monetary Relief ................................................................................................................. 81 The Decisions in Quebec (Public Curator) v. Sundicat national des employes de l’ hopital St. Ferdinand – Aggregate Damages Awarded for Prejudice To All Hospital Patients (Sustained by the Supreme Court of Canada). ............................................................................... 88 The Decisions in Barrette v. St. Lawrence Cement – Aggregate Damages Awarded For Interference With Use and Enjoyment of Lands Due to Cement Plant Operations .............................................................. 89 The Plaintiffs’Expert Evidence On Ability to Make Aggregate Award of Monetary Relief to All Residents – Presumption of Similar Injuries .................................................................................................. 90 (i) (ii) Emotional and Behavioural Problems ....................................................... 96 Cognitive Impairments ............................................................................. 96

(3)

(4)

(iii) Harm to Relationships and Interpersonal Well Being ................................ 96 (iv) Physical Impairments and Health Issues ................................................... 97 (v) Greater Vocational and Educational Remedial Needs ............................... 97 (vi) Greater Level of Required Supports .......................................................... 97 (vii) Financial Impacts ..................................................................................... 98 (viii) Proposed Methodology for Aggregate Assessment of Monetary Relief ....................................................................................... 98

- iv -

Common Issue D: If the answer to either of common issues (a) or (b) is “ yes” , was the defendant guilty of conduct that justified an award of punitive damages? .................................................................................................................. 99 (1) (2) Legal Principles Governing the Awards and Availability of Punitive Damages .............................................................................................. 99 The Crown’ s Own Admitted Conduct .............................................................. 103

Common Issue E: If the answer to common issue (d) is “ yes” , what amount of punitive damages ought to be ordered and to whom? ..................................................... 105 PART IV - ORDER REQUESTED ......................................................................................... 105 SCHEDULE “ A”- LIST OF AUTHORITIES......................................................................... 106 SCHEDULE “ B”- TEXT OF RELEVANT STATUTES ........................................................ 109

Court File No. CV-09-376927CP00 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MARILYN DOLMAGE AS LITIGATION GUARDIAN OF MARIE SLARK and JIM DOLMAGE AS LITIGATION GUARDIAN OF PATRICIA SETH Plaintiffs - and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO Defendant Proceeding under the Class Proceedings Act, 1992

PLAINTIFFS’OPENING ARGUMENT
(Common Issues Trial Commencing September 16, 2013) “ The fact that a hospital is established and operated by the government does not make it any less 1 important to give first consideration to the patients.” PART I - INTRODUCTION & BRIEF FACTUAL OVERVIEW 1. After 133 years of operation, the Huronia Regional Centre (“ Huronia” ) finally closed its

doors on March 31, 2009. Throughout its tenure as an institution to ostensibly care for individuals with developmental disabilities, Huronia quickly became an unsafe and unhealthy warehouse for some of this province’ s most vulnerable persons. Despite all of the calls for improvement, urgings to adhere to minimal standards of care and public shaming of its failures, for many decades, its residents were left to fend for themselves often without having their most basic of needs met: health and safety.

1

RCR044417/1, Statement by the Honourable M.B. Dymond, Minister of Health, Re: Visits to Provincial Hospitals, Ontario, Legislative Assembly, Official Report of Debates (Hansard), 27th Leg, 4th Sess, (3 May 1966) at 2933 (M.D. Dymond).

-22. The Plaintiffs’case will show a consistent pattern of the Crown’ s knowledge and failures

in acting to secure the most basic of humane environments. While the institution was originally designed to care for, educate and habilitate its residents, the Crown could not even satisfy a “ do no harm” standard of care. Instead, it knowingly perpetuated a substandard institution which became deeply toxic, thereby harming all persons in its care and control. 3. The Crown’ s conduct thereby ensured that when and if a resident was ever discharged,

she was inevitably worse off than the day she arrived as a vulnerable minor. 4. This class proceeding was commenced in 2009 on behalf of former residents of Huronia,

a provincially operated residential facility for persons with developmental disabilities. The Plaintiffs seek damages and declaratory relief against the Crown for harm caused by Ontario’ s exclusive operation and management of Huronia between 1945 and its closure in 2009. 5. On July 30, 2010, Justice Cullity certified the action as a class proceeding on behalf of:

(a) (b)

all persons who resided at Huronia between January 1, 1945 and March 31, 2009 who were alive as of April 21, 2007; and all parents, spouses, children and siblings of persons who resided at Huronia between March 31, 1978 and March 31, 2009, who were alive as of April 21, 2007.2

6. 7.

Leave to appeal the certification order was denied by Herman J. on November 11, 2010. Huronia was founded in 1876 as the Orillia Asylum for Idiots. It was operated under the

Inspector of Asylums, Prisons and Public Charities until 1930. In 1890, it was renamed the Ontario Hospital for Idiots and then the Hospital for the Feeble-Minded in 1911. In 1936, the institution was again renamed as the Ontario Hospital School to reflect its alleged educational component. The evidence will show there was no educational component to Huronia.

2

Certification Order, July 30, 2010, Amended Trial Record, Tab 3; Reasons for Certification, Justice Cullity, July 30, 2010, Amended Trial Record, Tab 4.

-38. It operated under the direction of the Ontario Department of Health until 1972 when the

Department became the Ontario Ministry of Health. Over time, Huronia’ s admission area covered the regions of Halton, Peel, York, Simcoe, Muskoka and Parry Sound.3 After 1974, it operated under the direction of the Ministry of Community and Social Services pursuant to the Developmental Services Act (the “ DSA” ). The institution was closed in March 2009. 9. Every aspect of Huronia residents’lives were dictated, controlled and provided for by the

Crown. It was, in effect, a “ total institution” .4 Individuals at Huronia had no control over any aspect of their lives. The opportunities to make choices or provide any input into their lives were extremely limited, if not non-existent. The vulnerability of these individuals as a result of their placement in the institution was further compounded by virtue of their being disabled:5
These children can be even more vulnerable to abuse than other children. Isolation and powerlessness are more marked in their case, because the disability itself may cause or contribute to those conditions. This the very characteristic that makes institutionalization more necessary for children with disabilities also make them easier targets for abuse once they are there. 6

10.

Residents were repeatedly mistreated and abused at Huronia. This mistreatment and

abuse included: (a) (b) (c) (d) (e)
residents were left to aimlessly walk or crawl around Huronia at times, often without any clothing; residents were often not bathed or cleaned; there was intermittent or inadequate or no attempt to supervise or program residents’activities; residents were organized into work gangs to perform the routine and ordinary tasks of running such an institution; admissions procedures contained no opportunity for pre-admission visits and communications between residents and family members were made difficult if not impossible;

3 4

5 6

Statement of Claim at para. 14, Amended Trial Record, Tab 1. CR031069/1, Memorandum from R.W. Blakeman to R.A. Farmer (3 June 1975); Examination for Discovery of M. Dolmage, November 1, 2011, pp. 8-9, Q. 17 Q. 282. Statement of Claim at para. 17, Amended Trial Record, Tab 1. Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Institutions, (2000), p. 27.

-4(f) (g) (h) (i) (j)
a serious shortage of professional staff, falling far behind, sometimes as much as 30% the appropriate governing industry and professional standards or ratios; a total lack of personal attention or privacy given the institutional structure, facilities and overcrowding; wards and rooms were unnecessarily locked, creating a prison-like environment; the lavatories lacked doors and often toilet seats; and for their physical labour in and around the institution, residents were either paid nothing at all or were paid minimal and completely unrealistic wages in the range of 4 cents to 8 cents per hour.7

11.

The Crown had knowledge of the mistreatment and abuse of residents at Huronia as early

as 1956 and likely earlier. Various reports (official and otherwise) were prepared over the years documenting the abuse and neglect the residents suffered and providing remedial recommendations as more particularized below. 12. Notwithstanding these reports and recommendations, over a period of some years, no

adequate internal safeguards were ever put into place to prevent or report abuse of Huronia residents. No adequate steps were taken to improve the quality of care or living at Huronia. Even when some of the recommendations were followed, the measures implemented were inadequate. The measures taken also failed to meet the standard of care which was applicable in the circumstances.8 13. The consistent and chronic failures of the Crown to ensure the institution adhered to

reasonable population levels and maintained adequate staff to resident ratios further gave rise to an environment chronically amenable to violence, abuse and mistreatment:
By 1945, the administration at Huronia knew or should have known that admitting residents to Huronia would result in developmental harm. They also knew that residents admitted to Huronia were almost certain to experience assault, whether by other residents or staff members, and that they were unwilling or unable to reasonably protect residents against these assaults. By the early 1970’ s, practice standards in the field made it clear that residents who carried out work in the institution that contributed economic benefit to the institution should be fairly compensated and were entitled to the same compensation

7 8

Statement of Claim at paras. 46-4, Amended Trial Record, Tab 1; Anticipated Evidence of Marilyn Dolmage. Statement of Claim at paras. 43-45, Amended Trial Record, Tab 1.

-5and benefit as other workers. Administrators at Huronia certainly knew or should have known this. By the early 1970’ s, if not well before, the administration was aware that conditions at Huronia were so unsanitary, any resident who was admitted would be exposed to Hepatitis, parasite and other infectious diseases. These harms were done knowingly to residents by Huronia and constitute systemic abuse.9

14.

In 1970, parents of a developmentally disabled son wrote to Member of Provincial

Parliament Reid, to bring the true state of Huronia to the Province’ s attention. After visiting Huronia, parents wrote:
… it was as if we had stepped back in time, 70 years or more. I have seen criminals housed in better conditions that these poor creatures. Dormitory conditions for adult inmates were atrocious, bathroom facilities from what we saw of them were Dickensian, corridors and dormitories stunk of human excrement. Even the hospital unit we visited, young children brought tears to our eyes at the general conditions, housing, dress, … . 10

15.

A March 1979 statement by the then Minister of Community and Social Services, the

Honourable Keith Norton, made it clear that Crown recognized that it would have been most effective to address the underlying environmental and systemic causes of abuse rather than merely issuing proclamations prohibiting abuse:11
By that time, if not long before, it should have been clear that a change in direction was needed to protect the resident of Huronia from harm. The Minister [Norton] identified the program and plan to address these issues as ‘ vital’to protecting the residents from harm. However, the policies, procedures and practices following the Minister’ s statement do not reflect any change in the institution’ s efforts to address abuse issues. 12

16.

The Crown itself admits that during most of its history, Huronia was large, overcrowded,

understaffed,13 and suffered from poor conditions.14 The Crown also admits that putting large numbers of often helpless, sometimes violent, frequently incontinent and always vulnerable people of both sexes in immense, aging, understaffed institutions with minimal programmes or activities created an environment propitious for abuse.15 Over the years, the press, parents and

9

Professor R.J. Sobsey, Reply Report to Dr. Martin, May 21, 2013, p. 16. CR082923/1, Letter from concerned parents to Tim Reid, MPP (2 June 1970). 11 CR136836, Statement by the Honourable Keith C. Norton Minister of Community and Social Services Re The Ontario Provincial Police Report on Huronia Regional Centre, Orillia Thursday, March 8, 1979 (8 March 1979). 12 Professor R.J. Sobsey, Reply Report to Dr. Martin, May 21, 2013, p. 26. 13 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 121. 14 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 121. 15 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 43.
10

-6government policymakers themselves noted that Huronia fell short of the prevailing standards, and appealed to government to set things right.16 Nothing was done to rectify the situation. 17. Despite these startling admissions, the Crown says that its conduct is immune from suit:
Institutions might be overcrowded and understaffed, they might have few or no teachers, physiotherapists, occupational therapists, or any other professional personnel; indeed, they might have fallen short on every single standard published by the AAMD or any other professional body from the 1950s to the 1970s, and still have suffered no legal or policy consequences –at least in Ontario and elsewhere in Canada.17

18.

The Crown further asserts that even if it did breach a duty of care, the Resident Class

could not have suffered any damages because, “ any such loss or damages resulted from preexisting physical, emotional and/or psychological problems” .18 In other words, because the Resident Class Members were developmentally challenged, they could not and did not suffer any harm despite the Crown’ s breaches. PART II - COMMON ISSUES TO BE DETERMINED AT TRIAL 19. By order dated July 30, 2010, Justice Cullity certified the action as a class proceeding,

with the follow issues to be determined in common: (a)
by its operation or management of Huronia from 1945 to 2009, did the Defendant breach a duty of care it owed to the Resident Class to protect them from actionable physical or mental harm? by its operation or management of Huronia from 1945 to 2009, did the Defendant breach a fiduciary duty it owed to the Resident Class to protect them from actionable physical or mental harm? if the answer to either of common issues (a) or (b) is “ yes” , can the court make an aggregate assessment of the damages as part of the common issues trial? if the answer to either of common issues (a) or (b) is “ yes” , was the Defendant guilty of conduct that justifies an award of punitive damages?

(b)

(c) (d)

16 17

Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, pp. 121-122. Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945 –2009, May 22, 2013, p. 4. 18 Statement of Defence at para. 84, Amended Trial Record, Tab 2.

-7(e) 20.
if the answer to common issue (d) is “ yes” , what amount of punitive damages ought to be ordered and to whom?

The Plaintiffs will ask this Court to answer common issues (a), (b), (c), (d) in the

affirmative. In addition to compensatory relief, the Plaintiffs will also request an award of $44,000,000.00 in punitive damages payable to the Resident Class with respect to common issue (e). PART III - THE COMMON ISSUES OF LAW AND FACT Common Issue A: By its operation or management of Huronia from 1945 to 2009, did the defendant breach a duty of care it owed to the Resident Class to protect them from actionable physical or mental harm? (1) 21. Did the Crown owe a duty of care to the Resident Class? The uncontested factual basis of the parties’relationship in this class proceeding is that: (a) (b) (c) (d)
the Defendant admits that it wholly owned, operated and managed Huronia;19 the representative Plaintiffs, Patricia Seth and Marie Slark, were admitted to Huronia as minors, at six (6) and seven (7) years old, respectively;20 Huronia was a Schedule 1 Facility, statutorily governed by, and operated pursuant to, the Developmental Services Act;21 and the Defendant retained and authorized servants, agents, representatives and employees to operate Huronia and gave instructions to such persons as to the manner in which the institution was to function and operate.22

22.

Accordingly, the relationship between the Crown and the Resident Class was sufficiently

close and direct to render it fair and reasonable to require the Crown to be mindful of the class’ legitimate interests and to impose an obligation on the Crown to take reasonable care not to harm the Resident Class.

19 20

Statement of Defence at para. 1, Amended Trial Record, Tab 2. Statement of Defence at paras. 43, 53, Amended Trial Record, Tab 2. 21 Statement of Defence at para. 17, Amended Trial Record, Tab 2. 22 Statement of Defence at para. 18, Amended Trial Record, Tab 2.

-823. Based on the proximity analysis set out by the Supreme Court of Canada in Hill v.

Hamilton-Wentworth Regional Police Services Board, there is no doubt that the Crown and the Resident Class were in a sufficiently proximate relationship which was both “ close and direct” :
This factor is not concerned with how intimate the plaintiff and the defendant were or with their physical proximity, so much as with whether the actions of the alleged wrongdoer have a close or direct effect on the victim, such that the wrongdoer ought to have had the victim in mind as a person potentially harmed. 23

24.

Canadian jurisprudence has already recognized an established category giving rise to a

duty of care: authorities which provide for the supervision and protection of minors for whom they are responsible owe such persons the duty of a careful or prudent parent.24 As articulated by the Supreme Court of Canada in K.L.B., while government is not a guarantor against all harm, it is responsible for harm sustained by children in its care when it was reasonably foreseeable that the government’ s acts or omissions would expose the children to harm:
It is reasonably foreseeable that some people, if left in charge of children in difficult or overcrowded circumstances, will use excessive physical and verbal discipline. It is also reasonably foreseeable that some people will take advantage of the complete dependence of children in their care, and will sexually abuse them. To lessen the likelihood that either form of abuse will occur, the government must set up adequate procedures to screen prospective foster parents. And it must monitor homes so that any abuse that does occur 25 can be promptly detected. [emphasis added]

25.

What types of acts or omissions could be reasonably foreseeable to expose individuals in

its care and control to harm? The “ careful parent test” , which imposes the standard of a prudent parent solicitous for the welfare of his or her child, has been judicially interpreted to include the following general duties of care: (a) (b) (c)
the duty to take reasonable steps to prevent foreseeable harm; the duty to investigate transgressions perpetrated against persons in one’ s care; the duty to supervise where a risk of harm is present as a result of the vulnerable state of persons in care;

23 24

Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129 at para. 29. Myers (Next Friend of) v. Peel County Board of Education et al., [1981] 2 S.C.R. 21 at 7; Rumley v. British Columbia, [2001] 3 S.C.R. 184 at para. 18. 25 K.L.B. v. British Columbia, [2003] 2 S.C.R. 403 at para. 15.

-9(d) (e) 26.
the duty to provide a safe and healthy daily living environment; and the duty to reasonably protect its charges from abuse. 26

In this case, it was reasonably foreseeable that abuse and mistreatment of residents would

occur in overcrowded conditions, with inadequate levels of supervisory staff and without adequate training or proper reporting procedures and safeguards. The foreseeability of harm only became more stark and pronounced following the delivery of government commissioned reports, in and after, 1971. Under these circumstances, the Crown was under a duty of care to guard against foreseeable harm and to be “ mindful of the plaintiff’ s legitimate interests in conducting
27 its affairs during the entire class period.”

27.

At its most basic iteration, the Crown owed a duty of care to monitor its own resident

capacity levels to ensure the institution was not overcrowded, to have adequate staff to monitor, supervise and care for the residents and to ensure it had appropriate abuse reporting and investigative procedures in place at all times. 28. From 1945 to 1974 Huronia was regulated pursuant to The Mental Hospitals Act (the

“ MHA” ).28 The MHA lists a number of mandatory duties owed by the Province of Ontario, including, inter alia:
(a) ...[I]t is declared that the powers of the Lieutenant-Governor in Council to make regulations in the manner set out in the said subsection shall extend to and include the following, (i) the appointment of superintendents, inspectors, stewards, assistants, clerks and other officers and employees and prescribing their powers and duties;29

26

Myers (Next Friend of) v. Peel County Board of Education et al., [1981] 2 S.C.R. 21 at 8; Durham v. N. Oxford P.S. Bd. (1960), 23 D.L.R. (2d) 711 (Ont. C.A.) at para. 24; T.W.N.A. v. Clarke (2003), 235 D.L.R. (4th) 13 (B.C.C.A.) at para. 123; F.S.M. v. Clarke, [1999] 11 W.W.R. 301 (B.C. Sup. Ct.) at para. 168; L.R. v. British Columbia (1999), 180 D.L.R. (4th) 639 (B.C.C.A.) at para. 18. 27 Cooper v. Hobart, [2001] 3 S.C.R. 537 at para. 33. 28 The Mental Hospitals Act, S.O. 1937, c. 392 . The Ontario Hospital School, Orillia is listed as an institution to which The Mental Hospitals Act applies in The Mental Hospitals Act, O. Reg. 26/44, s. 1, Schedule B, Tab B(12) of the Plaintiffs’ Factum. 29 The Mental Hospitals Act, S.O. 1937, c. 392, s. 5(2)(d), Schedule B, Tab B(11) of the Plaintiffs’Factum.

- 10 (ii) regulating the inspection, superintendence, government, management, conduct, operation, maintenance, care and use of institutions and equipment;30 regulating the apprehension and admission of persons;31 regulating the care, treatment, maintenance, conduct, discipline, custody, transfer, probation, release, discharge and apprehension of patients;32

(iii) (iv)

(b) The administration of this Act and of every institution established thereunder, is vested in the [Hospitals Division of the Department of Health for Ontario], and the Deputy Minister shall be the chief executive officer of [Hospitals Division of the Department of Health for Ontario] responsible to and subject to the control of the Minister.33 (c) ...[T]he superintendent of an institution shall be in charge of and have control over the institution for which he is appointed, and shall superintend the conduct and management of all its affairs and control all officers, clerks, servants and employees thereof and all the patients therein.34

29.

The MHA was amended from time to time over the course of its existence, but these

central duties remained in place.35 The Regulations governing Huronia pursuant to the MHA prescribed the following duties: (a)
subject to the direction of the Deputy Minister, the superintendent of an institution shall be the sole judge of the accommodation, care and treatment to be provided for any patient...36 subject to direction by the Minister, the superintendent of an institution shall have full control over and the custody and care of the person of every patient in the institution37 the equipment and facilities of the mental health centre that are maintained for giving physical treatment shall be examined regularly and maintained in good repair and record shall be kept of each examination;38

(b)

(c)

30 31

The Mental Hospitals Act, S.O. 1937, c. 392, s. 5(2)(e), Schedule B, Tab B(11) of the Plaintiffs’Factum. The Mental Hospitals Act, S.O. 1937, c. 392, s. 5(2)(f), Schedule B, Tab B(11) of the Plaintiffs’Factum. 32 The Mental Hospitals Act, S.O. 1937, c. 392, s. 5(2)(g), Schedule B, Tab B(11) of the Plaintiffs’Factum. 33 The Mental Hospitals Act, S.O. 1937, c. 392, s. 6(1), Schedule B, Tab B(11) of the Plaintiffs’Factum. 34 The Mental Hospitals Act, S.O. 1937, c. 392, s. 7. This section was repealed in 1967 and substituted with the following: “ ...the officer-in-charge of an institution is in charge of and has control over the institution for which he is appointed, and shall superintend the conduct and management of all its affairs and control all officers, clerks, servants and employees thereof and all the patients therein.” An Act to Amend the Mental Hospitals Act, S.O. 1967, c. 52, s. 4, Schedule B, Tab B(6) of the Plaintiffs’Factum. 35 An Act to Amend The Mental Hospitals Act, S.O. 1938, c. 20; Statute Law Amendment Act, S.O. 1939, c. 47; Statute Law Amendment Act, S.O. 1940, c. 28; An Act to Amend The Mental Hospitals Act, S.O. 1941, c. 29; An Act to Amend The Mental Hospitals Act, S.O. 1943, c. 13. 36 The Mental Hospitals Act, O. Reg. 26/44 s. 3, Schedule B, Tab B(12) of the Plaintiffs’Factum. 37 The Mental Hospitals Act, O. Reg. 9/52, s. 5(1), Schedule B, Tab B(13) of the Plaintiffs’ Factum.

- 11 (d) 30.
the Director shall have on duty at all times sufficient nursing and other staff for the care and treatment of every patient;39

In 1960, the MHA was amended to include the additional duty of classifying institutions

and prescribing their grades and standards.40 In 1963, the MHA was amended to include the additional duty to prescribe the remuneration to be paid or credited to patients employed in rehabilitation centres.41 31. The Developmental Services Act, 1974 (the “ DSA” ) and Regulations thereunder, came

into force on April 1, 1974 and was the governing statute for Huronia from that date to the date of closure. The DSA included the following duties: (a)
The Minister may establish, operate and maintain one or more facilities and may furnish such services and assistance as he considers necessary upon such terms and conditions as he sees fit;42 ...[T]he administrator of every facility established, or operated by the Minister, is vested in the Director;43 The Lieutenant Governor in Council may make regulations, (i) respecting the construction, renovation, alteration and maintenance of any facility or class of facility;44 respecting the management, conduct, operation, use and control of any facility or class of facility;45 prescribing the accommodation, facilities, equipment and services in any facility or class of facility;46 providing for the officers and staff and prescribing their duties and qualifications in any facility or class of facility;47

(b) (c)

(ii)

(iii)

(iv)

38 39

The Mental Hospitals Act, O. Reg. 207/62, s. 4, Schedule B, Tab B(14) of the Plaintiffs’Factum. The Mental Hospitals Act, O. Reg. 207/62, s. 5, Schedule B, Tab B(14) of the Plaintiffs’ Factum. 40 An Act to Amend the Mental Hospitals Act, S.O. 1960, c. 67, s. 1, Schedule B, Tab B(4) of the Plaintiffs’Factum. 41 An Act to Amend the Mental Hospitals Act, S.O. 1962 –1963, c. 81, s. 2, Schedule B, Tab B(5) of the Plaintiffs’Factum. 42 The Developmental Services Act, 1974, S.O. 1974, c. 2, s. 2(1), Schedule B, Tab B(10) of the Plaintiffs’Factum. 43 The Developmental Services Act, 1974, S.O. 1974, c. 2, s. 3(1), Schedule B, Tab B(10) of the Plaintiffs’ Factum. 44 The Developmental Services Act, 1974, S.O. 1974, c. 2, s. 38(b), Schedule B, Tab B(10) of the Plaintiffs’Factum. 45 The Developmental Services Act, 1974, S.O. 1974, c. 2, s. 38(c), Schedule B, Tab B(10) of the Plaintiffs’Factum. 46 The Developmental Services Act, 1974, S.O. 1974, c. 2, s. 38(d), Schedule B, Tab B(10) of the Plaintiffs’Factum. 47 The Developmental Services Act, 1974, S.O. 1974, c. 2, s. 38(e), Schedule B, Tab B(10) of the Plaintiffs’Factum.

- 12 32. Where a statute entrusts the Crown with the full responsibility of overseeing a project or

institution, the Supreme Court of Canada has determined that a non-delegable duty of care exists:
… a party upon whom the law has imposed a strict statutory duty to do a positive act cannot escape liability simply by delegating the work … [where] the Ministry has the management and direction of all matters relating to construction, repair and maintenance of the highways and must direct those operations. … the particular vulnerability of the travelling public should be a significant factor in reaching the conclusion that the respondent cannot escape liability for negligent repair work by delegating it. … the Ministry is in complete control of repair and maintenance and travellers are dependent upon the Ministry for the reasonable performance of the work.48 [emphasis added]

33.

In this case, the terms of the DSA are almost identical to those considered by the

Supreme Court of Canada in Lewis. The pertinent provisions of the DSA also evince a clear intention by the Legislature to impose a positive non-delegable duty on the Crown for the operation, management and control of designated facilities such as Huronia:
Designated Facilities Vest in Director 5. Any premises or part or parts thereof which were designated as a psychiatric facility under the regulations to the Mental Health Act, and which were operated by the Minister of Health and Long-term Care shall, upon being designated as a facility under this Act, be operated and maintained by the Minister and the administration thereof shall, subject to subsection 3(2), vest in the Director.49 [emphasis added]

34.

The statute further specifies minimum statutory requirements for sanitation, staff

supervision, nourishment, sleeping arrangements and the appropriate use of physical restraints (amongst other things). Of particular note, the DSA and its Regulations positively require that there be adequate supervision, at all times, of the safety and security of residents and that all hired staff members possess the appropriate qualifications to perform their requisite duties.50 These minimum statutory standards permit no derogation. This is consistent with the Supreme Court of Canada’ s articulation of the common law standard which “ imposes a heightened degree of attentiveness”on persons exercising a form of control over a child.51

48 49

Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145 at paras. 17, 22 and 33. Developmental Services Act, R.S.O., 1990, c. D. 11, s. 5, Schedule B, Tab B(8) of the Plaintiffs’Factum. 50 Developmental Services Act, R.S.O. 1990, c. D. 11; Developmental Services Act, R.R.O. 1990, Reg. 272, ss. 13.1, 18, Schedule B, Tab B(9) of the Plaintiffs’Factum. 51 K.L.B. v. British Columbia, [2003] 2 S.C.R. 403 at para. 14.

- 13 35. Accordingly, the enabling legislation offers another basis for imposing upon the Crown a

non-delegable duty to ensure that no harm came to the residents through the abuse or negligence of its agents. A non-delegable duty is one not only to take care, but to ensure that care is taken.52 36. Having established a prima facie duty of care was owed by Crown to the Resident Class

(based on the established common law categories and the governing statute itself), the Crown bears the burden of establishing that no such duty ought to be imposed by satisfying the Stage Two inquiry of the Anns v. Merton Borough Council tests, namely:
Do there exist residual policy considerations which justify denying liability in this case?

37.

The Crown has failed to properly plead or particularize any such defence in this action or

proffer an evidentiary basis in support of any alleged policy considerations, despite many requests that it do so. As such, the answer to the Stage Two Anns test must be answered in the negative. 38. The Statement of Defence filed by the Crown merely alleges:
The decisions regarding the funding of HRC, and all institutions like it, were policy decision. These decisions were made, at the highest levels of government, based on an assessment by the Crown of the competing demands for public resources and the government’ s responsibility to taxpayers to work within approved budgets.53

39.

No facts are given. No actual policy is pleaded or referred to. None exists in any event.

No such policy is referred to in the Crown’ s productions, even though there are over 65,000 of them. 40. In any event, where individuals are commended for treatment in a facility like Huronia,

the purpose of that very residency is treatment not mere custodial care or punishment. Accordingly, there is no justification in law, including a lack of resources, to justify failing in this obligation: “ to deprive any citizen of his or her liberty upon the altruistic theory that the confinement is for humane therapeutic reasons and then fail to provide adequate treatment

52 53

Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145 at para. 50. Statement of Defence at para. 61, Amended Trial Record, Tab 2.

- 14 violates the very fundamentals of due process54 … adequate and effective treatment is constitutionally required, because, absent treatment, the hospital is transformed into a
55 penitentiary where one could be held indefinitely for no convicted offense.”

41.

The DSA and its attendant Regulations essentially codify the Wyatt holding above by

statutorily stipulating that in order to provide effective and adequate institutional care, the facility must provide: (a) a human psychological and safe physical environment; (b) qualified staff in numbers sufficient to administer adequate treatment; and (c) individualized treatment plans. 42. Policy defences to negligence actions are fact-driven. No facts are given here. In any

event, even if an alleged ‘ funding’defence was available at law, such defence is fatally flawed, on the facts in this case because the evidence demonstrates that during the 1970’ s, the Crown saw an influx of federal funds which may have only served to decrease the actual costs [of the institution] to the Province:
When more money became available to improve services, it appears that rather than providing those improvements, Ontario chose to decrease their own spending based on maintaining the same level of services, which they knew to be substandard.56

43.

Even the Crown’ s expert admits that shortly after this new influx of Federal funding

arrived in the mid 1970’ s, in 1977, funding was actually being cut by Ontario rather than being used to improve its institutions. As a result, then Minister Norton stated at the time:
We have been totally frustrated in our efforts to achieve the 1964 AAMD Standards and, in fact, are presently losing ground in that regard. This despite the fact that the Social Development Policy Committee have agreed to the use of the AAMD staffing standards and recommended that we be insulated from any further staff reductions.57

44.

The best way for this court to assess the so-called “ policy”or “ funding”defence of the

Crown is to look at the contemporaneous documentation, not what is said 30 to 40 years later. Here, the very Minister in charge was of the view that the Crown was “ losing ground” as

54 55

Wyatt v. Stickney (1971), 325 F. Supp. 781 at 6 (N.D. Ala.). Wyatt v. Stickney (1971), 334 F. Supp. 1341 at 2 (N.D. Ala.). 56 Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, p. 3. 57 Dr. Simmons, Report on the Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, pp. 26 –27.

- 15 opposed to meeting its responsibilities at law, after having “ agreed to the use of the AAMD staffing standards” . 45. Lastly, the Crown cannot advance policy considerations as a defence to a purely

operational decision.58 While the Crown states that the operation and management of HRC was a classic case of governmental policy, that assertion is wholly inconsistent with the breadth of jurisprudence on the policy-operational distinction. 46. Once the Crown decided to take action and provide an institution for the care of

developmentally disable persons, it had a duty of care to act without negligence. Similar to the situation considered by the Supreme Court of Canada in Just v. British Columbia, the Crown made an actual policy decision to establish, operate and manage Huronia. Once it operationalized steps in furtherance of that policy, it owed a duty of care to act reasonably:
“ In short, the public authority had settled on a plan which called upon it to inspect all slopes visually and then conduct further inspections of those slopes where the taking of additional safety measures was warranted. Those matters are all part and parcel of what Mason J. described as "the product of administrative direction, expert or professional opinion, technical standards or general standards of care". They were not decisions that could be designated as policy decisions. Rather they were manifestations of the implementation of the policy decision to inspect and were operational in nature. As such, they were subject to review by the Court to determine whether the respondent had been 59 negligent or had satisfied the appropriate standard of care.”

47.

There can be no better classic example of an operational decision that one which involves

the daily operation, care and management of an institution. 48. On the basis of the applicable statutory regime and the common law, there is no doubt

that the Defendant owed a duty of care to minor vulnerable persons within the exercise of its daily care and control throughout the full frame of the class period.

58 59

Statement of Defence at para. 61, Amended Trial Record, Tab 2. Just v. British Columbia, [1989] 2 S.C.R. 1228 at para. 31.

- 16 (2) If the Defendant owed a duty of care to the Resident Class, what was the content of that duty? (a) Overcrowding of the Institution – the Defendant owed a duty, over the full class period, to provide adequate facilities and to adhere to objectively determined rated bed capacities (BRC) and other prevailing standards (AAMD) so that the resident population would not exceed Huronia’ s capacity. HRC’ s Internal Rated Bed Capacity. The Crown employed a “ Rated Bed Capacity”

49.

(RBC) system between the years of at least 1953 through 2009,60 reflecting its own acknowledgement of a duty to ensure the population levels of HRC were reasonable. Up to 1969, the rated bed capacity was based on intended and expected facility occupancy. After 1969, a more formal rated bed capacity was established.61 The approach to determining RBC was developed on a province-wide basis with guidelines and explanations that were shared with facilities.62 The actual figures were based on the physical space available in various types of program areas, along with the needs of the residents. The RBC for any given year would be determined by the facility administrator and approved by senior ministry officials.63 consistently between 1953 and 2009.64 50. The Applicability of the AAMD Standards. The plaintiffs’experts largely relied on the The

Crown’ s documents reflect that the RBC, in its various formats or iterations, was employed

1964 and 1971 AAMD Standards in forming their respective opinions on the applicable standards of care for the operation of Huronia during the class period. These Standards were deemed the appropriate yardstick by which to measure the institution’ s compliance with “ standards of the day”for the following undisputed reasons: (a)
they were generally and widely-known and accepted in the field both internationally and in Canada;

60

Crown’ s Answers to Undertaking from Examination of B. Low, April 25, 2012 Q#3213; #347, Q#3211, P#1045; CR079154, Memorandum from R.A. Farmer to All Superintendents & Administrators of Mental Retardation Facilities (6 January 1969); CR079156, Survey of Rated Bed Capacity (January 1969). 61 CR079156, Survey of Rated Bed Capacity (January 1969); CR079154, Memorandum from R.A. Farmer to All Superintendents & Administrators of Mental Retardation Facilities (6 January 1969). 62 CR079154, Memorandum from R.A. Farmer to All Superintendents & Administrators of Mental Retardation Facilities (6 January 1969); CR079156, Survey of Rated Bed Capacity (January 1969); CR079158, Survey of Rated Bed Capacity (January 1969). 63 Crown’ s Answers to Undertaking from Examination of B. Low, April 25, 2012 Q#3215. 64 Crown’ s Answers to Undertaking from Examination of B. Low, April 25, 2012 Q#3213.

- 17 (b) (c) (d)
they were known by, relied upon and referred to by Huronia officials and by the Provincial Crown administrators in charge of Huronia; 65 they were written clearly and objectively to allow precise numerical and objective measurement and evaluation; they were used and referred to in an external evaluation of the residential care at Huronia and were extremely employed by both the Williston Report and the Willard Report; 66 and they were developed primarily by institutional administrators and professionals who considered them to be achievable and realistic. 67

(e)

51.

The 1964 Standards were drafted by a “ consensus on standard items by the foremost

professionals and practitioners in the field of mental retardation” : 68
In 1970 over 100 experts and 20 committees made recommendations on the content of the standards. The Accreditation Council began field testing the standards in 1971. By the fall of 1971 over 200 people, including representatives of 45 national organizations, participated in the development of the Standards for Facilities for the Mentally Retarded [1971]69

52.

The standards were realistic and attainable. The primary purpose of the standards was for

the evaluation and accreditation of organizations serving people with mental retardation. This was a reasonable and realistic, but challenging, goal for these institutions. This is evident from

65

At 1975 Cabinet Submission referred to the need to meet 1971 standards. Minimum Staffing Standards for Facilities Listed in Schedule 1 and H of the Developmental Services Act, 1974; CR144360/16, Ontario Cabinet Submission (24 December 1975); Minutes of the Huronia Infection Control Committee in 1975 refer to the AAMD Standards requiring Huronia to eliminate its morgue and use independent community-based facilities; CR180887/2, Infection Control Committee (27 February 1975); The AAMD Standards are also referred to in a number of other institutional and ministerial documents, e.g., CR032762/1 M.R. Facility Services Division Staff Constraints Related to Population Reduction (18 May 1978); CR029503/1, Staff Strength Distribution, Schedule 1 Facilities, December 1978; CR083963/2, Memorandum from R.A. Farmer to Keith C. Norton (22 November 1977); CR029499/1, Hours of Care Definitions; Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 22. 66 CR164363/24, Walter B. Williston, Q.C., Arrangements for the care and supervision of mentally retarded persons in Ontario (1971); Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 22-23 and 27; CR143050/217, Joseph W. Willard, Report on the inquiry into the management and operation of the Huronia Regional Centre, Orillia (1976), Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 28; CR144360/4, Ontario Cabinet Submission, Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, 1974 (24 December 1975). 67 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), at pp. 4 and 22. 68 Dr. Gardner, Reply Report to Dr. Simmons, May 15, 2013, p. 4. 69 Dr. Gardner, Accreditation Council on Facilities for the Mentally Retarded: 1971-1990 Standards Analysis, March 21, 2013, p. 9.

- 18 the “ Preface to the Standards for State Residential Institutions for the Mentally Retarded” . The authors noted (AAMR, 1964,) that: (f) (g) (h) (i)
“ … the standards would be generally attainable in the state institutions of this country in a period of five to ten years; ” “ the guidelines could be instituted without disruption to the economy of any state or its governmental budget:” “ few, if any, of the standards were not already operative in one or more of the institutions in this country so that they had all been tested by experience;”and “ the usefulness of the standards would be enhanced by serving as the basis for ratings by an official accrediting agency.”70

53.

Judicial Application and Reliance Upon AAMD Standards. For example, these standards

were judicially relied upon and applied in in 1972 by Judge Johnson in the Wyatt v. Stickney case. He issued standards for services for people confined in institutions for people with mental disabilities.71 Pursuant to the decision in a similar case, New York Ass’ n For Retarded Children, Inc. v. Rockefeller in 1973, the court determined that:
These conditions are hazardous to the health, safety, and sanity of the residents. They do not conform with the standards published by the American Association on Mental Deficiency in 1964, or with the proposed standards published on March 5, 1973 by the United States Department of Health, Education and Welfare.72

54.

Because the Wyatt case was the first and most important of the right to treatment cases,

the standards were widely cited in later court cases and settlement decrees: (a)
in the Arc of North Dakota v. Olsen73 (1982) the Federal Court ordered the state of North Dakota to create community based residential service that met the Standards of ACF/MR; in Evans v. Washington,74 the Federal Court declared on January 1, 1978 that the residents of Forest Haven (The District of Columbia residential facility) had a

(b)

70 71

Dr. Gardner, Reply Report to Dr. Simmons, May 15, 2013, at p. 8. Wyatt v Stickney (1972), 344 F.Supp 373 at 7-16 (N.D. Ala.). 72 New York State Association for Retarded Children, Inc., et al. and Patricia Parisi, by her mother Lena Stevernagel, et al. v. Nelson A. Rockefeller, Individually and as the Governor of the State of New York, et al. (1973), 357 F. Supp. 752 at 6 (E.D.N.Y). 73 Association for Retarded Citizens of North Dakota v. Olson (1982), 561 F. Supp. 473 at 29 (S.D. N. Dak.). 74 Evans et al. v. Washington et al. (1978), 459 F. Supp. 483 at 2 (D.D.C.).

- 19 constitutional right to habilitative care in an alternative least restrictive environment in accordance with the ACF/MR 1975 Standards;

(c)

in the Lelsz v. Kavanaugh75 implementation agreement signed on October 15, 1987 obliged both parties to achieve compliance with the AAMD Standards for the Austin, Fort Worth, Denton, and San Antonio State Schools (Texas state institutions). 76

55.

As confirmed by both the plaintiffs’Sobsey Reply Report and the Crown’ s Simmons

Report, this American jurisprudence had significance to similarly situated administrators in Canada at the time:
“ Given their close association with U.S. authorities, it was natural that Ontario authorities would keep track of event in the U.S. and draw comparisons to US institutions” ;77 “ These cases [Wyatt/Rockefeller] were understood among professionals and administrators to indicate that institutions could be held responsible for substandard care. … these cases were widely known among professionals in human services for people with developmental disabilities and that these and other related cases were understood to mean that achieving or at least approaching compliance with standards would be viewed as a critical criterion for determining an acceptable level of care” ;78 “ During that period [the 1970’ s], there were scandals, court decisions, funding agency penalties for substandard care, and other events that exposed substandard care, abuse and neglect at numerous large institutions for people with developmental disabilities across North America. These were well known by professionals and administrators throughout 79 North America.”

56.

There is no doubt that the Crown was aware of, or ought to have been aware of the

decisions of the courts in these U.S. cases. They showed the prevailing standards of the day. 57. Defendant’ s Acknowledged AAMD As Minimum Ratios. These formalized standards

provided a clear minimum criteria for acceptable care. For example, the “ administrators at Huronia and in the Ontario Ministries identified the 1964 AAMD Standards as minimal standards for safe and humane custodial care. They also identified the 1971 Standards as

75 76

Lelsz v. Kavanagh (1987), 673 F. Supp. 828 at 2 (D.D. Tex.). Dr. Gardner, Accreditation Council on Facilities for the Mentally Retarded: 1971-1990 Standards Analysis, March 21, 2013, pp. 13-14. 77 Dr. Simmons Report on the Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 24. 78 Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, pp. 11-12. 79 Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, p. 6.

- 20 80 minimum standards to provide a program of rehabilitation in addition to custodial care.” The

1964 Standards also represent the reasonable criteria for assessing whether residential services had the potential to provide safe and humane custodial care at any time during the class period, including the years prior to 1964.81 58. The AAMD Standards For Resident Population Capacities. In addition, the Crown

admits, accepts and acknowledges that the AAMD standards were known to the Crown in the 1970s;82 the AAMD standard was the only standard that was out there in the 1970s;83 the AAMD standards could be seen as a comparator;84 the AAMD standards had relevance;85 and the AAMD standards were important.86 The Crown further admits that any admission to HRC had to have been approved by the administrator.87 59. The 1971 AAMD Standards specifically state that:
1.3.1. No individual whose needs cannot be met by the facility shall be admitted to it. 1.3.1.1. The number admitted as residents to the facility shall not exceed: 1.3.1.1.1. Its rated capacity; 1.3.1.1.2. Its provisions for adequate programming… 88

60.

In 1969, the Department of Health completed a study of rated bed capacities within

psychiatric health hospitals. This study revealed considerable overcrowding in relation to existing space availabilities: “ Generally speaking, the study... revealed true rated capacities

80

Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), p. 5; CR144360/4, Ontario Cabinet Submission, Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, 1974 (24 December 1975); CR044329/1-2, Memorandum from R.A. Farmer to All Facility Administrators/Directors Schedule I Facilities (17 June 1975);Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 29. 81 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), p. 29. 82 Transcript of the examination for discovery of B. Low, February 21, 2012, Q# 392, Line# 14-20. 83 Transcript of the examination for discovery of B. Low, February 21, 2012, Q# 397, Line# 24-2. 84 Transcript of the examination for discovery of B. Low, February 21, 2012, Q# 394, Line# 13. 85 Transcript of the examination for discovery of B. Low, February 21, 2012, Q# 396, Line# 22. 86 Transcript of the examination for discovery of B. Low, February 21, 2012, Q# 397, Line# 2. 87 Transcript of the examination for discovery of B. Low, February 21, 2012, Q# 165, Line# 2; Transcript of the examination for discovery of B. Low, February 22, 2012 2011, Q# 603, Line# 19. 88 Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, pp. 32-33.

34

- 21 approximately 25% less than capacity figures which have been in use and officially accepted for many years.”A similar study was conducted at Huronia, resulting in a drastic reduction in the reported RBC. Simply put, prior to 1971, RBC was based on actual beds set up rather than the adequacy of actual space based on measurements of living quarters.89 61. In 1971, the RBC was finally changed to be based on the standard of 60-80 square feet

per bed, depending on the age of the individual and care required, and 50 square feet per patient for activity space in relation to the ward areas. As a result of this change, the RBC at Huronia suddenly dropped from 1972 beds to 1412 beds. 90 62. Accordingly, it is clear that the RBC at Huronia prior to 1972 had been dangerously

inflated and improper on the basis of the physical space available. Even compliance with the RBC prior to 1972 would have necessarily meant the institution was overcrowded. A 1969 internal document confirms that “ true rated capacities [were] approximately 25% less than capacity figures which have been in use and officially accepted for many years” .91 (b) Understaffing of the Institution –the Defendant owed a duty, over the full time frame of the class period, to provide adequate supervision of Residents and to adhere to staffing levels for direct care staff to resident ratios prescribed by the AAMD standards Defendant’ s Internal Reliance Upon and Knowledge of AAMD Standards. The 1964 and

63.

1971 AAMD standards were widely quoted in Ontario government documents over the ensuing decades [after 1964]. 92 In fact, the 1964 AAMD Standards for direct care staffing “ were adopted by the Mental Retardation Services Branch of the Mental Health Division, Ministry of Health as the standard for Mental Retardation Facilities in 1968” .93 In 1969, an internal memo from Dr.

89

CR079154/1, Memorandum from R.A. Farmer to All Superintendents & Administrators of Mental Retardation Facilities (6 January 1969). 90 Crown’ s Answers to Undertaking from Examination of B. Low, April 25, 2012 Q#3215. 91 CR079154/1, Memorandum from R.A. Farmer to All Superintendents & Administrators of Mental Retardation Facilities (6 January 1969). 92 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 25. 93 CR144360/6, Ontario Cabinet Submission Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975).

- 22 Zarfas stated that Huronia was “ aware that, in relation to A.A.M.D. standards, the Progressive Activity Unity is far below accepted staffing standards” .94 64. The 1971 AAMD Standards were further “ agreed to by members of the Mental Health

Division as a base for allocating human resources” .95 The Crown’ s own Cabinet Submissions in 1975 acknowledge that satisfying the 1971 AAMD Standards was essential to provide programming “ in accordance with the Developmental Services Act 1974” and that “ the recommended minimum staffing standards should not be compromised” , suggesting the only options as “ immediate and full implementation” .96 These AAMD staffing standards were further identified in the same document as being required pursuant to “ Schedule I & II of the Developmental Services Act of 1974," and "vitally important."97 65. The Crown admits in this action that the 1964 and 1971 AAMD standards were widely

quoted in Ontario government documents over the ensuing decades.98 Huronia’ s 1972 “ FiveYear Programme”noted, “ the facility has been understaffed for many years... Staffing continues
99 to be well below AAMD standards in Residential Life, Professional and Service Staff areas.”

The Crown has admitted that the AAMD standards: (a) (b) (c)
were known to the government in the 1970s;100 the AAMD standard was the only standard that was out there in the 1970s;101 the AAMD standards could be seen as a comparator;102 the AAMD standards had relevance;103 and

94 95

CR076244/2, Memorandum from R.J. Wilson to D.E. Zarfas (24 July 1969). CR144360/16, Ontario Cabinet Submission Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975). 96 CR144360/16-17, Ontario Cabinet Submission Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975). 97 CR044190/1, Ontario Cabinet Submission Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975); Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 37. 98 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 25. 99 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 25; CR170936, “ Five-Year Programme presented by Ontario Hospital School Orillia”(6 March 1972). 100 Transcript of the examination for discovery of B. Low, February 21, 2012, Q# 392, Line# 14-20. 101 Transcript of the examination for discovery of B. Low, February 21, 2012, Q# 397, Line# 24-2. 102 Transcript of the examination for discovery of B. Low, February 21, 2012, Q# 394, Line# 13. 103 Transcript of the examination for discovery of B. Low, February 21, 2012, Q# 396, Line# 22.

- 23 (d) 66.
the AAMD standards were important.104

Defendant Accepts 1971 AAMD Standards As Yardstick For Staffing. Administrators at

Huronia and in the Ministry of Community and Social Services clearly identified the 1971 AAMD standards as the standards that they should meet for staffing, actually including a two page photocopied extract of these standards indicating the precise staffing ratios that they should be meeting in their December 24, 1975 cabinet submission.105 67. Cabinet Submissions Admit Breach of Staffing Standards. The same 1975 Cabinet

Submission stated that “ the recommended minimum staffing standards should not be compromised," and suggests the only options are "immediate and full implementation," "implementation over a three-year period," or "implementation over a five-year period." It recommended a three-year implementation to achieve compliance with minimum standards by 1979.106 This is a clear admission of a breach of the duty of care. 68. The same Ministry Cabinet Submission went on to acknowledge and admit that:
“ the present ratio of staff in direct care per resident... is only 2/3 that required under the recommended staffing standards, with the result that programming is inadequate to meet the needs of residents". 107

69.

By 1975, Defendant Aware Of Non-Compliance With 1964 Standards (Let Alone 1971

Standards). The Crown’ s own 1975 comparison of staffing ratios, employing the 1964 AAMD Standards as a guide, revealed that the number of professional staff was 27.6% below the minimum number required. In some categories, the shortages were even more dramatic.

104 105

Transcript of the examination for discovery of B. Low, February 21, 2012, Q# 397, Line# 2. CR044226/19-20, Ontario Cabinet Submission Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975); Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 37. 106 CR144360/9, Ontario Cabinet Submission Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975); Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 6. 107 CR144360/16, Ontario Cabinet Submission Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975); Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 9.

- 24 70. For example, the occupational and physical therapy departments each had only one-

third or less of the required numbers of staff.108 In the 1975 “ Minimum Staffing Standards,”the Ministry of Community and Social Services noted that it based its standards for direct care on the 1971 AAMD standards and its standards for professional staff on the AAMD 1964 and 1971 standards.109 71. By 1977, Defendant Remains in Breach of 1964 Standards. By 1977, the Defendant

continued to employ the AAMD as yardsticks of adequate care, Ontario’ s General Manager for Mental Retardation Facilities reported that HRC was both understaffed: (a) (b) 72.
by 572 staff persons to meet the 1964 (custodial) AAMD standard; and by 2,164 staff persons to meet the 1971 (therapeutic) AAMD standard.110

The General Manager, Dr. Farmer, admitted at the time that Huronia remained below the

minimal AAMD Standards required for custodial care and far below the 1971 AAMD Standards for offering any meaningful programs. 111 73. In 1977, the General Manager of the M.R. Facility Services Division wrote to Minister

Keith Norton that they had been frustrated in their efforts to achieve the 1962 AAMD standards and were “ losing ground” in that regard, despite the fact that the Social Development Policy Committee had agreed to the use of AAMD staffing standards.112 74. Importance of Compliance With Staffing Ratios for Quality of Care. Some of the most

critical of the AAMD Standards were necessary to provide an environment and foundation for humane care. The most important was to ensure adequate staff to resident ratios and that the
108

CR144360/7, Ontario Cabinet Submission Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975); Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, pp. 10-11. 109 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, pp. 25-26; CR044197, Minimum Staffing Standards for Facilities listed in Schedule I of the Developmental Services Act, S.O. 1974, c. 2 (24 December 1975). 110 Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 109. 111 CR083963, Memorandum from R.A. Farmer to The Honourable Keith C. Norton (22 November 1977); Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 10. 112 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, pp. 26-27; CR083963, Memorandum from R.A. Farmer to The Honourable Keith C. Norton (22 November 1977).

- 25 number of residents did not exceed the approved capacity. While these are necessary conditions for humane care, “ meeting these standards is not sufficient to ensure humane and therapeutic care. They simply make it possible” .113 75. Even the Crown admits that AAMD standards were the only staffing ratio standards that

were applicable at the time the Williston Report was released in 1971, and the only standard that was out there that could have been used at that time.114 No other standards have ever been produced, referred to, proven or pleaded by the Crown in this action. (c) Implementation of Appropriate Abuse Prevention Policies – the Crown owed a duty to implement and enforce effective abuse prevention and reporting policies Throughout the entire class period, the following specific approaches to abuse prevention

76.

policies ought to have been in taken: (a)
first, rather than focus solely on prohibiting and punishing abuse, there was a need to eliminate the substandard conditions that contributed to abuse. In the absence of substantial improvements in these conditions, attempts to prohibit abuse were unlikely to produce much improvement;115 second, if there was an awareness that abuse was a persistent and widespread problem at Huronia, there should have been an acknowledgement instead of continually claiming it was a rare occurrence. Acknowledging the extent of the problem would have made an important contribution to dealing with the problem;116 third, there was a need for seven-day-a-week, 24-hour-a-day supervision for staff. Several sources point out that supervisors were only assigned Monday to Friday day shifts, and staff members were unsupervised on evenings, nights, and weekends;117 fourth, there should have been consistent action taken against staff members who attempted to cover-up abuse;118

(b)

(c)

(d)

113

Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), p. 7. 114 Transcript of the examination for discovery of B. Low, February 23, 2012, Q# 1086, Line# 20. 115 Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, p. 15. 116 Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, p. 16. 117 Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, p. 16. 118 Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, p. 16.

- 26 (e) (f)
fifth, external investigators or consultants should have been brought in to assist with the suspected abuse issues;119 sixth, in view of the numerous allegations of abuse from visiting students and residents, Huronia’ s administration should have placed one or more undercover agents among the staff to determine the nature and extent of mistreatment and abuse;120 seventh, each report of unexplained injury and each allegation that could not be conclusively disproven should have had been accompanied by a written record of an action taken to prevent further harm;121 eighth, by 1990, if not before, Huronia should have arranged for training on institutional abuse for its supervisors and administrators provided by external experts;122 ninth, a policy to notify police that a resident had been subject to a criminal act should have been in place throughout the class period. Records first reflect a policy to notify police that a resident has been subject to what appears to be a criminal act in 1976;123 tenth, police involvement should have been mandatory for suspected sexual abuse throughout the class period. In 1974, for the first time, mandatory police involvement was stipulated for sexual abuse.124 Prior to 1978, the involvement of the police was considered discretionary;125 and finally, there should have been an ombudsman in place to address allegations of abuse. No ombudsman to deal with allegations of abuse was ever put in place in response to the Willard Report recommendation for one. 126

(g)

(h)

(i)

(j)

(k)

(3) (a) 77.

Did the Crown breach its duties of care? Crown’ s Admissions of General Breaches in its Own Evidence Since there were no other applicable standards, and the contemporaneous documentation

clearly states that the Crown did not meet these standards, the breach is clear.

119 120

Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, p. 16. Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, p. 17. 121 Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, p. 17. 122 Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, p. 17. 123 Crown’ s Answers to Undertaking from Examination of B. Low, April 25, 2012 Q#3325. 124 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 54; Letter from Mora Skelton, The Ontario Association for the Mentally Retarded, to Dr. D. Zarfas, Children's Psychiatric Research Institute, 11 March 1975. CMHA Archives, D. Zarfas, File 12.1; CR008396/4, Report of the Task Force Dealing With Resident Abuse (27 June 1975). 125 Defendant’ s Answers to Written Interrogatories dated April 2, 2013, Q#349. 126 Transcript of the examination for discovery of B. Low, February 23, 2012, Q# 1060, Line# 7.

17

- 27 78. A critical component of assessing whether a party discharged its duty of care is an

objective examination of what a reasonable and prudent person in the same situation would have (or should have) done. Within this assessment is consideration of the knowledge of each party at the material times:
Knowledge is fundamental to liability for negligence. The very concept of negligence presupposes that the actor either does foresee an unreasonable risk of injury, or could foresee if it he conducted himself as a reasonably prudent person. 127

79.

The evidence before the court is rife with examples and a pattern of the Crown’ s clear

and admitted knowledge at the material times. The Crown’ s own expert evidence reveals numerous admitted and uncontested breaches of its duty of care. For instance, the Crown admits that during most of its history, Huronia was large, overcrowded, understaffed,128 and suffered from poor conditions.129 The Crown further admits that putting large numbers of often helpless, sometimes violent, frequently incontinent and always vulnerable people of both sexes in immense, aging, understaffed institutions with minimal programmes or activities created an environment propitious for abuse.130 The Crown’ s expert, Dr. Simmons, goes further and concludes:
In this sense, Huronia was hardly an exception; rather, it illustrated the rule that all Canadian institutions for developmentally disabled people fell short, sometimes far short, of the standards of the day.131

80.

Over the years, the press, parents and government policymakers themselves noted that

Huronia fell short of the prevailing standards, and appealed to the Crown to set things right.132 Nothing was done to rectify the situation despite these requests. 81. While it appears that the Crown’ s primary defence is that Huronia was no different that

various other similarly situated institutions at the material time,133 the plaintiffs have tendered evidence that Huronia operated at a level far lower than many of its Canadian counterparts.134

127 128

M.M. v. R.F (1997), 52 B.C.L.R. (3d) 127 (B.C.C.A.) at para. 110. Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 121. 129 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 121. 130 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 43. 131 Dr. Simmons, Reply Report on the Huronia Regional Centre, May 22, 2013 p. 5. 132 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, pp. 121-122.

- 28 82. In any event, even without this evidence of the plaintiffs, Canadian and English courts

have rejected such purported “ industry standards”defences:
I do not think this is a sound argument. The practice, on its very fact, is inconsistent with provident precautions against a known risk, and the mere fact that it is usual and long established is not a sufficient justification. It cannot be justified as an excuse simply because in the part by good fortune no harm seems to have happened;135 and … the defendant cannot escape liability by clinging to old or outmoded techniques and practices.136

83.

The Supreme Court of Canada has confirmed that where a professional nevertheless

“ practices in accordance with common professional practice, he will be liable if that practice is wanting. … where the common practice is fraught with danger, a judge or jury may find that the
137 practice is itself negligent.”

84.

The Ontario Court of Appeal has similarly determined that alleged compliance with

“ standard practice”is no defence where “ it was not a safe practice” .138 Having knowledge of the risks and dangers associated with its practice of operating Huronia at the material times, as particularized below, this defence ought to be rejected. 85. In as early as 1954, Huronia superintendent S.J.W. Horne complained that he was

handicapped by the shortage of staff.139 In 1956, the Inspector of Ontario Hospitals reported that the medical staff was far below that accepted as adequate.140 A 1956 Inspector’ s report on Huronia by Inspector F.W. Snedden provided, “ in one of the areas” where “ patients” were confined to single rooms, “ no adequate provision had been made to supply heat.”Dr. Snedden

133 134

Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013. Dr. LaFave, Reply Report to Dr. Simmons, May 18, 2013; Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013. 135 Lloyds Bank Ltd. v. E.B. Savory & Co., [1933] A.C. 201 (H.L.) at 235. 136 B.C Rail v. Canadian Pacific Consulting Services Ltd., [1988] B.C.J. No. 326 (B.C.S.C.) at 13. 137 ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at paras. 42 and 43. 138 Crits and Crits v. Sylvester et al., [1956] O.R. 132 –151 (C.A.) at 12, aff’ d [1956] S.C.R. 991. 139 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, pp. 29-30; CR099896, Ontario, Annual Report of the Ontario Hospital School, Orillia for the Fiscal Year ending March 31, 1945. 140 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 30; CR051328, Ontario, Hospital School Orillia Report of Inspection dated November 29 and 30, 1956 and December 3 and 4, 1956 by F. W. Snedden, M.D., Inspector.

- 29 recommended that the patients be frequently assessed “ so that it is at all possible they may be
141 placed in more desirable accommodation.”

86.

A 1958 brief from the Ontario Association for Retarded Children to the Premier and the

Cabinet noted the “ alarming proportions”of overcrowding at Huronia.142 During the 1960s, there was a “ crippling”shortage of professional staff at Huronia.143 In 1960, Pierre Berton authored an article entitled, "What's Wrong at Orillia-Out of Sight, Out of Mind", in which he described gross failings at Huronia, including extreme overcrowding. Ultimately, Berton's article led to a Parliamentary debate where Huronia was called a "hell-hole” and Huronia's cottages called "buildings for human storage."144 The same year, the Ontario Association for Retarded Children criticized overcrowding at Huronia.145 87. A January 1959 report entitled “ Proposed Revision of Mental Health Program in Ontario”

from Minister Dymond referred to the need to eliminate overcrowding by reducing the population to the “ rated bed capacity” .146 88. According to The Toronto Globe and Mail, after a visit to Huronia, provincial C.C.F.

leader Donald MacDonald asserted, that the institution should not even be called a hospital, but rather “ ’ building for human storage’ .” MacDonald said that the institution looks like a solid
147 mass of beds –with as many as 80 or 90 sleeping... no more than 18 inches separating beds.”

141

Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 70; CR006485/9-10, Ontario, Hospital School Orillia Report of Inspection dated November 29 and 30, 1956 and December 3 and 4, 1956 by F. W. Snedden, M.D., Inspector. 142 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 17; CR111681, Brief to The Honourable Leslie M. Frost and Ministers of the Cabinet, Province of Ontario from the Ontario Association for Retarded Children (December 1958). 143 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 96; CR008396, Report of the Task Force Dealing With Resident Abuse (27 June 1975). 144 Ontario, Legislative Assembly, Official Report of Debates (Hansard), 26th Parl, 1st Sess, No. 14 (12 February 1960) at 346 and 348 (Hon. William Murdoch). 145 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 15. Harvey G. Simmons, From Asylum to Welfare (Toronto: National Institute on Mental Retardation 1982) at 166– 167. 146 CR083924/6, 16, Proposed Revision of Mental Health Program in Ontario (January 1959). 147 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, footnote 59, p. 133. The Toronto Globe and Mail (7 January 1960).

- 30 89. A 1963 report from the Interdepartmental Committee on Mental Retardation noted that

Ontario Hospitals and Ontario Hospital Schools represented 10 percent overcrowding.148 In 1964, Minister of Health Matthew Dymond admitted to overcrowding in Ontario institutions, including Huronia.149 90. In 1966, the “ Report of the Ontario Interdepartmental Committee on Emotionally

Disturbed Children”observed that although the Ontario Crown had the primary responsibility for mental hospitals, mental health clinics and training schools, no serious effort had been made to overcome the acute shortage of professional staff.150 91. A January 6, 1969 memorandum from Dr. Farmer, then Director Hospital Management

Services Branch, at the Ministry of Health, to all Superintendents & Administrators of Mental Retardation Facilities, noted:
“ As you are aware, a detailed study of rated bed capacities has been carried out within psychiatric hospitals identified with the Mental Health Division and has revealed considerable overcrowding in relation to existing space availabilities. Generally speaking, the study in hospitals to date has revealed true rated capacities approximately 25% less than capacity figures which have been in use and officially accepted for many 151 years.”

92.

No clearer admission of a breach could possibly exist. The same breach was admitted

over and over and over again. 93. In a 1969 memo, the executive director of Ontario’ s mental health division observed,

152 “ our facilities are understaffed.” These conditions put a strain on staff. This was noted in a

148

Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 17; CR113618/8, Report of the Interdepartmental Committee on Mental Retardation (August 1963). 149 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 16; CR169582, Statement of Minister of Health Dymond before Legislative Assembly, 1964. 150 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 30; CR113784 Emotionally Disturbed Children in Ontario, A Report to the Minister of Health (March 1966). 151 CR079154/1, Memorandum from R.A.. Farmer to Superintendents & Administrators of Mental Retardation Facilities (6 January 1969). 152 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 30; CR198311, Memorandum from Dr. H. W. Henderson, Executive Director, Mental Health Division to Dr. K. C. Charron, Deputy Minister of Health (21 November 21 1969).

- 31 1969 confidential memo from Executive Director of the Department of Health Mental Health Division concerning allegations of abuse at Huronia reported by Humber College students:
“ Without attempting to excuse or justify mistreatment of our patients... the following facts should be kept in mind: 1. Our facilities are understaff [sic]... 2. Our buildings are overcrowded, in poor condition, with inadequate equipment and facilities to provide a reasonable standard of care, or to develop the required treatment and training programs. These conditions make a difficult task almost impossible for our staff.153

94.

At the end of 1969, Dr. Morton Shulman, MLA, complained in the Ontario Legislature,
“ Everyone in this House is aware of why members are allowed to visit the mental institutions on pre-arranged, white-washed tours-it is because of the glaring inadequacies which were exposed when... I toured a number of mental institutions discovering inadequacies, neglect, abuse, interpatient violence, understaffing and low staff morale” . 154

95.

In June 1970, a parent of a resident of Huronia complained to provincial Member of the

Legislative Assembly Tim Reid that the conditions at Huronia were shocking and dated.155 Reid forwarded this letter to Minister of Health Thomas L. Wells who, on 8 July 1970, replied to Reid that some buildings are old and not well suited to the Huronia program, and the Ministry was concerned about the numbers of ward staff for the large number of patients.156 Further complaints to the MLA were made about the stench and crowding of Huronia.157

“ on entering… you have the feeling that you have been transferred back to an insane asylum in the 18th century and you are overcome by a smell that I can’ t describe. You pass through a door that is quickly locked behind you and are bombarded by the poor creatures that live here… As you get braver and your stomach settles a bit you look around and notice the poor soul asleep on the cold tiles floor and you see some sitting on the floor rocking and still another banging her head on the floor… We desperately need a

153

Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 43; CR198311, Memorandum from H.W. Henderson to K.C. Charron (21 November 1969). 154 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 103; CR081461, Transcript from speech in Legislature (27 November 1969). 155 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 17; CR082923, Letter to Tim Reid, MPP from Concerned Parents Ontario ( 2 June 1970). 156 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 17; CR082920, Letter to Tim Reid from Thomas Wells (8 July 1980). 157 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 17; CR075846, Letter from Jean Kozak to D. Kennedy, MPP (3 December 1970).

- 32 residence in our own area where our children can be treated like human beings and not 158 like animals to live amidst their own droppings.”

96.

In 1971, Dr. P. Lynes, Director of Ontario’ s Professional Services Branch of the

Department of Health warned of the “ danger that the use of seclusion may be viewed as a
159 possible solution to staff shortages.” Later that same year, an internal memorandum from Dr.

Cleary, Chairman Admission & Discharge Committee, Ontario Hospital School, Orillia, to Mr. Wilson, Administrator, and Dr. Zarfas, Director Mental Retardation Branch, acknowledged that:
“ At the last meeting of the Admissions and Discharge Committee on November 2, 1971, there was a motion passed as follows: - “ That we advise Toronto (Mental Retardation Branch Director) that we are unable to provide adequate care for our present population, and that we should not be required to accept new admissions until we reach our revised 160 rated bed capacity.” “ The motion was intended to be a reminder that the Ontario Hospital School Orillia is far above its rated bed capacity and yet we have had to continue to accept more admissions and innovate new programs, two diabolically opposed situations.”161

97.

Yet again, the Crown was admitting that it was unable to adequately care for the

population of Huronia at the material time. 98. In 1971, A.B.R. Lawrence, Minister of Health, wrote to a fellow MLA acknowledging

the overcrowded and understaffed situation at Huronia.162 This precipitated Mr. Lawrence’ s sponsoring of the Walter B. Williston report entitled “ Present Arrangements of the Care and Supervision of Mentally Retarded Persons in Ontario”(the “ Williston Report” ). The Williston Report was released to Lawrence in 1971. The purpose of the Williston Report, as described by Minister Lawrence was “ to inquire into the adequacy of care and supervision of the mentally

158 159

CR075846/1, Letter from Jean Kozak to D. Kennedy, MPP (3 December 1970). Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 71; CR129284, Guidelines for the Use of Seclusion (1971). 160 CR075593, Memorandum from Dr. Cleary to Mr. Wilson Dr. Zarfas (30 November 1971). 161 CR075593, Memorandum from Dr. Cleary to Mr. Wilson Dr. Zarfas (30 November 1971). 162 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 18; CR075600, Letter from A.B.R. Lawrence, Minister to R. D. Kennedy, MPP, (9 December 1971).

- 33 retarded with particular reference to the question of governmental and public responsibilities
163 towards such persons when not subject to direct custodial care by the government.”

99.

Williston confirmed reports of poor conditions in Ontario’ s large institutions including

overcrowding and understaffing.164 The Williston Report ultimately criticized Huronia for its deficient staff to patient ratios, serious overcrowding and isolation, unpaid labour, and hazardous buildings.165 Notably, the Williston Report found that the staffing ratios were already twelve (12) years behind, and that they should be upgraded to the 1971 AAMD ratios.166 However, even if the ratios were raised to the 1971 levels, they would still remain five (5) years out of date, assuming that was done immediately.167 In any event, no matter what standard was used, Ontario did not meet it. 100. A five-year program statement released a few months later noted, "the facility has been

understaffed for many years. . . . Staffing continues to be well below AAMD standards in Residential Life, Professional and Service Staff areas."168 This report noted the “ serious
169 overcrowding... at Orillia...”and “ staffing limitations.” This March 1972 Report of Huronia

highlighted, as one of its objectives, to obtain “ adequate staffing and space by AAMD standards
170 for residential care, social and recreational and training programs.” As a means of achieving

such objective, the report recommended the reduction of resident “ population by 1977-78 to our
171 rated bed capacity of 1425 or lower.” This reduction did not happen.

163

CR001190, Statement by The Honourable A.B.R. Lawrence, Q.C., Minister of Health in Legislature; Plaintiff’ s Request to Admit dated January 16, 2012, Q. 50, Defendant’ s Response to Request to Admit dated January 31, 2012, Q. 50. 164 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 11; CR164363, Walter B. Williston, Q.C., Arrangements for the care and supervision of mentally retarded persons in Ontario (1971). 165 CR164363/99, Walter B. Williston, Q.C., Arrangements for the care and supervision of mentally retarded persons in Ontario (1971). 166 Transcript of the examination for discovery of B. Low, February 23, 2012, Q# 1079, Line# 6. 167 Transcript of the examination for discovery of B. Low, February 23, 2012, Q# 1081, Line# 17. 168 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 134; CR170936, Five Year Programme presented by Ontario Hospital School Orillia (6 March 1972). 169 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 31; CR120591/5, 5-Year Progress Report Mental Health Division, Ontario, Memorandum from. Dr. H. W. Henderson, Executive Director, Mental Health Division to Dr. K.C. Charron, Deputy Minister (25 February 26, 1971). 170 CR170936/7, Five-Year Programme Presented by the Ontario Hospital School Orillia (6 March 1972). 171 CR170936/8, Five-Year Programme Presented by the Ontario Hospital School Orillia (6 March 1972).

- 34 101. In 1972, a Department of Health report noted that Huronia was over-populated by 596

persons.172 A personal letter to then Premier Davis and various members of the Legislature describing a visit to Orillia recounting appalling conditions asserted, "the main problem in Orillia's institution is the lack of staff members."173 An internal 1972 Mental Health Estimates book further confirmed that, at the time:
“ … serious problems of staffing limitations and overcrowding remain with us. These must be overcome before the facilities will be able to provide more humane and safe living conditions.”174

102. 103.

This is yet again another admission of a breach of the applicable standard of care. 1974 MCSS Cabinet Submissions referred to the “ need to reach acceptable staffing and

175 space standards” and a program enrichment “ to bring the quality of care up to AAMD 176 standards by 1978/1979.”

104.

The December 1, 1978 “ Huronia Regional Centre Master Plan”revealed that:
“ It has been well documented in research that one very critical dimension of residential living is the physical environment. It is recognized that no amount of programming will allay the effects of institutionalization unless the residential facility provides an environment which is most appropriate for human growth and development. This automatically excludes the warehousing phenomena which still typifies many of the wards at Huronia Regional Centre. The evidence overwhelmingly reveals that there is a positive effect on all retarded individuals when they are removed from a large ward and 177 placed in a small group of ten or less (5 to either would be preferable.” and recommend that “ the standards of the physical facility should be the same as those regularly applied in society to the same kind of facilities for ordinary citizens.”178

105.

In 1979, the General Manager of the Mental Retardation Facility Services division

advised that a report to the Management Board and Cabinet pointed out that direct care staffing

172

Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 18; CR062530/2, Report to the Department of Health on Long Range Planning for the Ontario Hospital School, Orillia (February 1972). 173 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 134; CR075764, Letter from A. Gelok to W.G. Davis (8 March 1972). 174 CR177335/21, Mental Health Estimates Book (1972). 175 CR079873/1, Cabinet Submission (13 August 1974). 176 CR079873/1, Cabinet Submission (13 August 1974). 177 CR011184/3, Huronia Regional Centre Master Plan (1 December 1978). 178 CR011184/10, Huronia Regional Centre Master Plan (1 December 1978).

- 35 levels had become critical and were less than adequate to provide reasonable care and a safe environment.179 106. In 1984, Clarence Sundram, former chair of the New York State Commission on Quality

of Care for the Mentally Disabled noted understaffing, overcrowding and “ unscheduled absences of direct care staff”will result in anger and frustration for direct care staff. The most available outlet for these feelings are the patients.180 Commenting on the measures to get staff to report on abusive colleagues, a British consultant psychiatrist at Huronia argued that asking staff to report
181 on each other was “ much resented and likely to be ineffective.”

107.

In 1986, a provincial government memo noted staffing levels at ministry-operated

facilities had deteriorated to the point where the situation of understaffing relative to care and program requirements was placing residents and staff at risk.182 108. In as late as 1989, students from Cambrian College alleged inappropriate conduct by

Huronia employees.183 The inappropriate conduct included numerous improprieties concerning dining procedures, residents’personal hygiene, respect and dignity shown to residents, staff not following policies, a lack of resident programming, and a lack of resident supervision.184 In particular, the Cambrian College students identified the following issues, among others: (a)
Dining Procedures: Bird feeding (clients not given time to eat properly), meals thrown in garbage if not consumed fast enough, staff eating clients’ food, residents forced to eat naked, same spoon used to feed a number of residents, meals left until cold before being served to residents, food taken away if certain behaviours displayed, and fluids not provided.

179

Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 33; CR078523, Memorandum from R.A. Farmer to Ellen Mills (10 January 1979). 180 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 44; Clarence J. Sundram, "Obstacles to Reducing Patient Abuse in Public Institutions," Hospital and Community Psychiatry, Vol. 35, no. 3, 1984, p. 239. 181 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 54; CR090353, F. J. S. Esher, "Inside The Ontario Hospital School," Orillia Packet and Times (29 December 1973). 182 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 34; CR195674, Memorandum from Peter H. Barnes to J. Sloan (4 November 1986); CR003969/1, Application and Report to Management Board (February 1985). 183 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 46; CR105407, Memorandum to Michael Ennis from Margaret Gallow (10 November 1989). 184 CR105242, Document entitled Administrative/Care Issues (1989).

- 36 (b)
Personal Hygiene: Clients’ clothing not changed for 2 – 3 days, personal hygiene items shared among residents (deodorant, toothbrush, soap etc.), clients left in soiled and wet diapers for extended periods, clients’made to wear diapers when they do not need them (for staff convenience), no personal care (showering, hair brushing, tooth brushing) to some clients for periods of days, no Kleenex or toilet paper available, and clients not cleaned when soiled. Respect and Dignity: Clients frequently ridiculed and made objects of amusement for staff, clients called obscene or profane names, sworn at, made to recite obscene nursery rhymes, clients threatened with physical harm, clients’ privacy not respected, and clients left nude for long periods in common areas. Policy Issues: Clients are left in restraints for up to 5 hours without being released, and prescribe treatments not provided. Program Issues: Few, if any programs being carried out, lack of programs to deal with specific behaviour problems, and no meaningful interactions. Client Supervision: Clients left unattended while staff sit in staff rooms or watch television, clients left unsupervised on toilets or in bathrooms for long periods, clients locked in common areas with no staff present, and clients left in the care of unqualified personnel while staff get coffee. Organizational Issues: Lack of organized structure for cottage routine, poor housekeeping and cleanliness practices, acceptance of substandard care and areas reflect uncaring attitude throughout the department, and a lack of concern for clients’safety and well-being.185

(c)

(d) (e) (f)

(g)

109.

Because of intimidation, the Cambrian College students ultimately withdrew from their

field placement at Huronia.186 110. By 1989, “ Ontario authorities decided to give up on setting any general standards” .187 In

contrast, by 1981, British Columbia had created its own Guidelines for Facilities for the Mentally Retarded in the Province of B.C. which bore strong similarity to the AAMD Standards.188 Both Manitoba and Saskatchewan acknowledged that they should, or already were, implementing and following the AAMD Standards.189

185 186

CR105242, Document entitled Administrative/Care Issues (1989). CR105427, Letter from Margaret Gallow to Fraser Williams (2 October 1989); CR105428, Letter from Margaret Gallow to Ivy Lapointe (2 October 1989). 187 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 27. 188 Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, p. 12. 189 Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, p. 13.

- 37 111. The 1993 Provincial Summary of Serious Occurrences observed:
“ It is difficult to get all agencies to comply with procedures... There is a need for training of both field staff and agencies regarding procedures. ...there is a lack of clarity around the definition of serious occurrences... confusion... which programs must comply with 190 procedures.”

112.

A 1998 policy paper noted, “ the incidence of abuse and neglect of vulnerable adults in

both institutional facilities and in the community has increased as shown by reported higher
191 levels of physical abuse and psychological abuse of seniors and persons with disabilities.”

Despite continued re-drafting of abuse policy, a June 2001 MCSS memo noted, “ staff not
192 reporting incidents of suspected abuse.”

113.

According to Huronia’ s Administrator writing to the director of Ontario’ s Mental

Retardation Services Branch, “ our solution to this problem must go much deeper than staff discipline” going on to suggest reducing the size of units, implementing “ positive resident programmes,”and improving staffing.193 114. In terms of physical, emotional and sexual abuse of residents, one of the major obstacles

preventing authorities and investigators from getting an accurate picture of that abuse was the “ code of silence”which pervaded institutions throughout North America.194 115. While the “ code of silence” amongst staff “ does not generally extend to... sadistic

behaviour, sexual exploitation or serious injuries to patients... there are powerful factors at

190

Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 59; CR002683, 1993 Provincial Summary of Serious Occurrences (October 1994). 191 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 60; CR001673, Policy Paper Initiative for Vulnerable Adults Strategies to Address Abuse and Neglect (23 April 1998). 192 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 46; CR161504/3, Management Board Secretariat, Internal Audit Division and MCSS, Audit Committee Report (June 2001). 193 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 54; Ontario, Memo from R.J. Wilson, Administrator, Ontario Hospital School, Orillia, "Allegations of Improper Treatment of Residents," to Dr. D. E. Zarfas, Director, Mental Retardation Services Branch, Ministry of Health, 15 August 1973, CMHA Archives, D. Zarfas, File 10-4. 194 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 46; Bogdan, et al. found that attendants had an "us vs. them" view of institutional life. "Attendants share the view that their superiors ...misunderstand the needs of the residents," and assert that "their own proximity to the residents and time spent on the ward provide them with a knowledge of ward life that is inaccessible to others." Robert Bogdan, et al., "Let Them Eat Programs: Attendants' Perspectives and Programming on Wards in State Schools," Journal of Health and Social Behavior, Vol. 15, June 1974, p. 143.

- 38 work... to hinder prompt reporting of severe patient abuse by employees as well as by patients.” These are: the stipulation that immediate dismissal will follow from a finding of abuse; staff perceptions that the discipline process is weighted against direct care staff and is less strict toward administrators; staff fear of retaliation if they report incidents of abuse and, “ [t]he single most important reason... is the ineffectiveness of the disciplinary system in investigations
195 allegations of patient abuse.”

116.

There is ample evidence that a code of silence existed at Huronia.196 As one Humber

College student who signed a letter accusing Crown employees of brutality in the early 1970s noted, “ I was told, my first day on the ward, by the staff to do all, see all and say nothing [underlying in original document]; this was my first indication that I was about to observe
197 brutality.” The Georgian College students in the 1973 case felt “ that they were under

constraints from their own supervisors in the college to not take any action on matters such as
198 this.” Dr. Caron, to whom the abuse was reported, noted that one student alleged that “ when 199 written reports were made... such reports were destroyed.”

117.

Thus, despite explicit policies forbidding the use of violence against class members,

despite the fact that staff signed documents attesting to the fact that they were aware of these policies, staff either ignored, or tried to suppress the information.200

195

Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, pp. 46-47; Sundram, p. 242. An extensive review of the MDC in 1978 listed a series of conditions which mirror those mentioned by Sundram as conducive to abuse: "low staffing . . . not enough support staff . . . frustration at being able to provide only custodial care . . . staff don't get feedback from ideas or recommendations. . . staff have seen little or no results from all the reviews and inspections. . . management has been slack in dealing with 'dead wood'. . . frustration at seeing so few residents re¬entering the community and pressure from. . . waiting list ... [f]rustrations with physical facilities that are old, overcrowded and poorly equipped." Manitoba, Program Analysis and Review Branch, Resources Division, Manitoba Department of Health and Social Development, "Manitoba School Program Review," 1978. 196 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 47. 197 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 47; CR198335, Physical Mistreatment of Residents as described by the students in their own words, undated but clearly referring to the 1973 incident reported to Dr. Caron. 198 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 47; Memo from Milton J. Fisher, Administrator, Whitby Psychiatric Hospital to Dr. G. A. Ives, Director, Psychiatric Services Branch, Ministry of Health, (30 May 1973), CMHA archives. 199 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 47; Memo from Dr. Paul Caron to Dr. D.E. Zarfas, Ministry of Health, (24 May 1973). 200 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 47; According to PD # 17, part O, "Employees who witness incidents of patient abuse and fail to report same promptly to senior supervisory personnel are subject to disciplinary action." The problem of uncooperative staff in institutions was noted in the scholarly literature of the

- 39 118. Minister of Health, Richard Potter, told the legislature in 1973 that, “ members of the staff

are very reluctant in many cases to report other members of the staff in spite of the directives that
201 we have sent out.” However, the Minister took no steps to do anything about the problem.

119.

There may have been a variety of reasons for this: staff members’fears of being shunned

or isolated form the social group, not wanting to be responsible for a fellow staff member losing his or her job, fear of retribution and belief that the investigative system was unfairly weighted against staff.202 In any event, it was the duty of the Crown to look into these problems and fix them. They were not free to ignore these issues. 120. In his 1976 investigation into Huronia, Dr. J. Willard noted that: “ it is not easy for

management to be fully aware of the true state of affairs because a staff person known to report on another staff member may be harassed and blackballed; as a result some staff are reluctant to
203 report incidents.”

121.

Although staff policies required immediate reporting of staff abuse, problems

remained.204 A 1978 memo concerning an investigation into alleged abuse at the Rideau Regional Centre noted the “ Investigation Committee has been unable to determine how the

time, "Program staff, in common with other participants in the organization, have their own turf to protect. They must assume a defensive posture if they are to believe that what they are doing has any value. . . Since they have little to gain by cooperation, they assume they have much to lose in cooperation." See "Management Information— A 'Mini' Symposium," Administration in Mental Health, Fall, 1973, p. 10. 201 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 47; Toronto Star, "Inquiries continue at Orillia Hospital," (11 December 1973). 202 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 48; During hearings over the 1973 incidents at Huronia, the Administrator, R J. Wilson stated, "There has been a reticence with staff to come forward and report such things. It is a sort of peer ostracizing. We've encountered it in the past." Text of hearings, 12 December 1973, CMHA archives, D. Zarf as File 12.1. Attached to Appendix I [no other identification marks on document] containing reports of interviews with Georgian College students is a letter from one student apologizing for "backing down from the statement I gave," because "I have become quite frightened." 14 September 1973, CMHA archives, Zarfas File 12.1 203 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 48; Joseph W. Willard p. 180. Testifying about a 1973 alleged incident of abuse at Huronia, one staff member explained that he acted as he did because, "I was concerned about being blackballed by other staff." Hearing, 12 December 1973 [re: 1973 alleged abuse incident at Huronia] CMHA Archives, D. Zarfas file, 12.1 204 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 48; CR142342, Procedure for the Management of Allegations of Abuse of Residents (March 1977).

- 40 injuries happened and are convinced that all staff were not completely honest in their statements
205 of relating circumstances surrounding these incidents.”

122.

The “ Task Group”on Resident Abuse in 1978 noted that, “ Incidents of resident abuse

may go unreported because staff who are witnesses fear... personal reprisals and/or recrimination... strong peer pressure serves to inhibit and discourage the reporting or ...abuse... There seems to be an attitude that even if a person reports a case of resident abuse, the outcome will be the ultimate re-instatement of the offender, thus making the risk of reporting ‘ all for nothing.” However, the duty of the Crown was to take steps to fix these problems, not to simply catalog them and then ignore them.206 123. Even by 2005, the government continued to issue memos on “ serious occurrences,”with

an Assistant Deputy Minister noting, “ there is a need to implement more timely action with
207 respect to reporting and monitoring serious occurrences.” However, no “ timely action” , or

any other action, was taken.

205

Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 48; Memo from Investigating Committee to Dr. N. Lysander, Administrator, Smiths Falls, MCSS, 24 November 1978. Archives of Ontario, 29-77, Box 20, File: Smiths Falls-Incidents. 206 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 58; CR157915/5, Comments on the Task Force Report on Resident Abuse (18 May 1979). 207 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 46; HRCE037264, Ontario, Memorandum to Regional Directors from Terry McCarthy (29 December 2005).

- 41 (b) Specific Breaches of the Crown’ s Duties of Care Owed to the Residents (i) Overcrowding of the Institution - The Crown breached this duty of care by failing to adhere to the AAMD Standards and its own internal facility standards (or Bed Rated Capacity)

Failure to Implement or Adhere to Recognized Standards Re Population Levels 124. The Crown admits that in January 1960 severe overcrowding and significant fire hazards

were cited, including an incident where a resident suffocated during a fire in one of the buildings.208 125. In particular, Huronia often failed to meet the 1964 AAMD Standards, which were the

base minimums to provide proper custodial care. One of the most critical standards it breached required that “ no individual whose needs cannot be met by the facility shall be admitted to it” .209 This meant that institutions were prohibited from admitting residents beyond their rated capacity. This obligation was repeatedly ignored by the Crown:
“ Although there was frequent discussion of being over its rated capacity and being unable to provide beneficial programs, residents continued to be admitted to the facility. Numerous documents suggest that the institution was not even able to ensure the health and safety of residents. This continual admission of residents made progress toward 210 improving conditions extremely slow and difficult.”

126.

Overcrowding of living units and the institution as a whole was a serious violation of the

standards of care, which persisted at least until the early 1980’ s. For example, “ in the worst years, there were at least 500 more residents than the rated capacity” .211 During most, if not all of the years between 1945 and 2009, Huronia was severely overcrowded with residents well beyond its bed-rated capacity. It also had inadequate staff to provide even minimally safe and healthy

208

Plaintiff’ s Request to Admit dated January 16, 2012, Q. 77, Amended Trial Record, Tab 8; Defendant’ s Response to Request to Admit dated January 31, 2012, Q. 77, Amended Trial Record, Tab 9, “ What’ s Wrong at Orillia – Out of Sight Out of Mind” , Toronto Star, dated January 6, 1960. 209 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, p. 8; 1971 AAMD 1.3.1; CR177191/23, Standards for Residential Facilities for the Mentally Retarded adopted May 5, 1971. 210 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, p. 8. 211 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, p. 12.

- 42 custodial care. Nevertheless, “ admissions continued to occur further stretching overtaxed

resources and pushing back the time when conditions might improve” .212 127. These continued admissions of residents that “ could not be properly cared for was a

major failure that contributed to many other problems and made progress toward meeting other
213 standards much slower and erratic” and directly “ contributed to risk and actual harm to

residents” .214 128. The Crown admits that on April 7, 1971, it was reported that Health Minister Bert

Laurence promised “ top priority” for the overcrowding which had led Huronia residents to be placed in cages and that Huronia was “ behind the times”and would be “ phased out”gradually.215 However, caged cribs were continued to be used until at least 1982 or 1984.216 No proper excuse for this delay has ever been given. 129. Some of Huronia’ s major deficiencies included severe overcrowding, gross

understaffing, and continued admissions of persons for whom no proper service could be provided:217
“ These deficiencies at Huronia were so severe that they would have inevitably resulted in a poor quality of life, illness and injury, failure of residents to meet their full development potential in some cases deaths. The administrators at Huronia and in Ontario’ s Ministries of Health and Community Social Services knew this or certainly should have known this 218 throughout the period of 1945 –2009.”

212

Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, p. 34 213 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, p. 35. 214 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, p. 36. 215 Plaintiff’ s Request to Admit dated January 16, 2012, Q. 54, Amended Trial Record, Tab 8, Defendant’ s Response to Request to Admit dated January 31, 2012, Q. 54, Amended Trial Record, Tab 9, CR185860, Claire Hoy, “ Lawrence: ‘ Crib cage’ problem to get top priority” , Toronto Daily Star (April 7, 1971). 216 Transcript of the examination for discovery of B. Low, April 23, 2012, Q# 2234, Line# 18-5. 217 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, p. 65. 218 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, p. 66.

- 43 130. Even when these failings were brought to the Crown’ s attention by the Williston and

Willard Reports, by April 1979, only 21% of approved recommendations had been implemented.219 Importantly, recommendations that included raising the staff to resident ratios to meet the 1971 minimum AAMD Standards have not been implemented.220 131. Actual Bed Rated Capacities and Population Level. For many years, Huronia exceeded

its very own established BRC, let alone the AAMD Standards. However, it must be noted that from 1953 to 1970, BRC reflected the largest number of beds for in-patients which could be established in the hospital, at any given time.221 In 1971, the rated bed capacity was changed to be based on the standard of 60-80 square feet per bed, depending on the age of the individual and care required, and 50 square feet per patient for activity space in relation to the ward areas.222 As a result, although the size of the facility did not change, the official rated bed capacity of Huronia became drastically reduced. Causal Effect of Breach of Duty to Maintain a Reasonable Population Level Overcrowding 132. An overcrowded institution materially increases and contributes to the rise and spread of

infectious diseases, increased risk of resident abuse and increased usage of unnecessary medications.223 Overall, and over time, overcrowding leads to a diminished level of physical and mental health for persons living in such an environment. The Crown itself admits that nothing positive arose from the overcrowded facilities at Huronia.224 133. Overcrowding more than doubles the risk of child abuse and has been identified as an

important factor predicting violence among residents of a psychiatric unit, and to be a significant factor predicting self-harm among the general population. Some injuries occur

219

Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, p. 66 220 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, p. 67 221 CR068558/13, Manual on Recording and the Preparation of Statistical Reports Ontario Mental Hospitals and Hospital Schools (14 June 1972). 222 Crown’ s Answers to Undertaking from Examination of B. Low, April 25, 2012 Q#3215. 223 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009 (Report 1 of 2), March 22, 2013, pp. 32-34. 224 Transcript of the examination for discovery of B. Low, February 22, 2012, Q# 581, Line# 15.

- 44 as a result of abuse by staff. Others result from assaults committed by one resident against another. With inadequate staffing, it is almost impossible to provide a reasonable level of protection from assaults. Many unexplained injuries occur in overcrowded institutions. 225 134. The combination of severe overcrowding and massive understaffing contributes

directly to illness and injury in a variety of ways. These effects of crowding on communicable diseases have been well established for centuries and were certainly well known throughout the period from 1945 to 2009: 226
“ … it is impossible to maintain adequate sanitation in overcrowded and understaffed institutions. As a result, diseases such as hepatitis, dysentery, tuberculosis, parasitic worms, lice, and insects occur with high frequency and in addition diseases such as influenza that occur regularly in the community spread rapidly among crowded wards. Rates of parasitic and infective diseases have been shown to negatively relate to per capita floor area. Substandard staff-to-resident ratios compound the effects of overcrowding, because staff cannot possibly keep up with the challenges of maintaining a clean environment, or individualize care. Failure to meet other standards also adds to the problems. For example, the lack of adequate numbers of clean towels, sheets, a personal care items adds to the problem. The sharing of razors and piling together of toothbrushes are other substandard practices that spread disease. 227

135.

Available data suggest that 80% or more of residents of Huronia suffered hepatitis B

infections. An internal Huronia document from 1975 reports "cumulative data show an overall incidence of hepatitis B (present or past) of between 70 - 80%." 228 It is unclear exactly how serum hepatitis is spread in institutions but overcrowding and unsanitary conditions have been shown to play important roles. 46 Shared or contaminated personal care items such as razors or toothbrushes have been implicated as potential sources of transmission.229

225

Professor R.J. Sobsey, Opinion Regarding Impact of 2), March 22, 2013, pp. 33-34. 226 Professor R.J. Sobsey, Opinion Regarding Impact of 2), March 22, 2013, p. 32. 227 Professor R.J. Sobsey, Opinion Regarding Impact of 2), March 22, 2013, p. 33. 228 Professor R.J. Sobsey, Opinion Regarding Impact of 2), March 22, 2013, pp. 34-35. 229 Professor R.J. Sobsey, Opinion Regarding Impact of 2), March 22, 2013, p. 37.

of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1

- 45 136. Overcrowding has been shown to contribute to increased rates of a variety of

categories of accidental and intentional injuries: overcrowding more than doubles the risk of child abuse and is a critical factor in predicting violence among residents of a psychiatric unit. (ii) Understaffing of the Institution –the Crown breached this duty of care by failing to satisfy and/or implement recognized standard levels of staffing based on the AAMD ratios.

Failure to Implement or Adhere to Recognized Standards Re Staff to Resident Ratios 137. The Crown itself repeatedly acknowledged this breach on various occasions. In 1969, the

Health Minister indicated that poor care of residents was caused by staff shortages.230 In 1971, after a resident strangled to death trying to escape from a crib cage, the Director of Mental Retardation Services stated that the use of cages was necessary because of inadequate staffing to provide supervision.231 In 1974, Ministry Cabinet Submissions accepted that the “ present ratio of staff in direct care per resident … . is only 2/3 that required under the recommended staffing standards, with the result that programming is inadequate to meet the needs of residents” .232 138. The Crown’ s own internal documents show that as early as 1969, the institution was

aware of its endemic understaffing and the deleterious effects that had on residents. 139. A November 21, 1969 Memorandum from Dr. Henderson, Executive Director Mental

Health Division, to Dr. Charron, Deputy Minister of Health, in response to allegations of mistreatment of resident of Huronia, noted:
“ Without attempting to excuse or justify mistreatment of our patients in any way, the following facts should be kept in mind:

230

CR076003/1, Letter from B. Dymond, Minister of Health to the Honourable Stanley J. Randall, Minister of Trade & Development (7 May 1969). 231 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, p. 9; Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p 39; DOL00002713, William Johnson, “ Woman, 31, strangles in crib bars at Orillia mental Hospital” , The Globe and Mail, (July 21, 1971). 232 CR144360/16, Ontario Cabinet Submission, Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975).

- 46 Our facilities are understaffed. The overall staff-to-patient ratio at Orillia is 1:053. The complement of ward staff in the Activity Unit, which would appear to be the unit to which the students were making reference, is 209 to care for approximately 800 patients. This 209 is the total complement for all 3 shifts, seven days a week. At times there are 2 staff in a ward for 70 patients. The number of staff required for minimum standards of care as set by the American Association for Mental Deficiency, for patients of this level is 364. Our buildings are overcrowded, in poor condition, with inadequate equipment and facilities to provide a reasonable standard of care, or to develop the required treatment and training programs. These conditions make a difficult task almost impossible for our staff.”233

140.

A January 8, 1970 memorandum from Dr. Zarfas, Director Mental Retardation Services

Branch, to Dr. Henderson, Executive Director, Mental Health Division, noted:
“ I am attaching herewith for your information a memorandum from Mr. Wilson outlining the serious situation that exists in regard to maintenance of a safe level of cleanliness at the Ontario Hospital School in Orillia. He is indicating in this memorandum that he just does not have a staff complement to either carry out a program on the wards or to maintain a level of cleanliness within the hospital to deal with outbreaks of infectious diseases such as shigella.” I hate to again nag about the serious situation which we are in now regarding staff shortages, but perhaps this situation can again be brought to the attention of the funding bodies so that they can recognize the seriousness of the situation as it 234 pertains particularly to our larger facilities for the retarded.” [emphasis added]

141.

A December 3, 1971 memorandum from Dr. Zarfas, Director Mental Retardation

Services Branch, to Dr. Henderson, Executive Director Mental Health Division, noted in relation to recent complaints about abuse of residents that “ … it is felt that the over-crowding and understaffing of this facility bears a direct relationship to many of the complaints that have been
235 received.”

Again,

here

is

an

admission

of

a

direct

relationship

between

overcrowding/understaffing and the problems which occurred at Huronia, including abuse.

233

234

235

CR198311/3, Memorandum from Dr. H.W. Henderson, Executive Director, Mental Health Division to Dr. K.C. Charron, Deputy Minister of Health (21 November 1969). CR076178/1, Memorandum from Dr. E. Zarfas, Director, Mental Retardation Services Branch to Dr. H.W. Henderson, Executive Director, Mental Health Division (8 January 1970). CR075601/1, Memorandum from Dr. E. Zarfas, Director, Mental Retardation Services Branch to Dr. H.W. Henderson, Executive Director, Mental Health Division (3 December 1971).

- 47 142. The 1974 proposal to adopt the AAMD staffing standards and for increased funding for

staffing was expressly rejected by Cabinet.236 That same year, in June 1974, the Minister of Community and Social Services received letter advising that residents were still being locked in their wards despite the passage and enactment of the new DSA 1974:
“ During a visit to the Huronia Regional Centre (formerly the Ontario Hospital School, Orillia) on the morning of Wednesday, May 29, 1974, I was shocked to observe at least two completely locked adult wards, “ Pav. II”and “ Huronia Heights” , 237 noting that “ the Developmental Services Act, 1974, under which Ontario mental retardation institutions are now operated, contains no provision for compulsory detention of residents. Consequently, in my opinion, locked wards were outlawed by the new legislation.”238 “ The illegal detention of any person in a democracy is a matter of gravest concern to all persons in that democracy. So also is the threat of detention without due process of law. The issue takes on an especially pressing urgency when the persons detained are mentally handicapped and unable to speak up for themselves. Therefore, as a concerned citizen and advocate for the mentally retarded citizens of this province, I most strongly urge you to take immediate steps to eliminate all vestiges of locked adult wards in mental retardation facilities in Ontario. 239

143.

Even the Crown admits that by 1976, the Willard Report found Huronia’ s staffing ratios

were some twelve (12) years behind and ought to be upgraded to, at least, the 1971 AAMD ratios.240 144. The Crown further admits that its own 1974 Cabinet Submissions entitled “ Minimum

Staffing Standards for Facilities Listed in Schedule I and II of the Developmental Services Act, 1974” identified deficiencies in the present staffing levels of (a) direct care; (b) professional

236

Crown’ s Answers to Undertaking from Examination of B. Low, April 25, 2012 Q#3350; CR044226, Ontario Cabinet Submission, Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975); Plaintiff’ s Request to Admit dated January 16, 2012, Q. 59, Amended Trial Record, Tab 8, Defendant’ s Response to Request to Admit dated January 31, 2012, Q. 59, , Amended Trial Record, Tab 9, Ontario Cabinet Submission, Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975). 237 CR082142/1, Letter from Paul McLaughlin to The Honourable Margaret Birch, Provincial Secretary for Social Development and The Honourable Rene Brunelle, Minister of Community and Social Services (13 June 1974). 238 CR082142/1, Letter from Paul McLaughlin to The Honourable Margaret Birch, Provincial Secretary for Social Development and The Honourable Rene Brunelle, Minister of Community and Social Services (13 June 1974). 239 CR082142/2, Letter from Paul McLaughlin to The Honourable Margaret Birch, Provincial Secretary for Social Development and The Honourable Rene Brunelle, Minister of Community and Social Services (13 June 1974). 240 Transcript of the examination for discovery of B. Low, February 23, 2012, Q# 1079, Line# 6.

- 48 staff; and (c) support services staff241 and a formal recommendation to adopt the AAMD staffing standards. 242 None of these recommendations was ever adopted. 145. The Crown relied on the “ Monograph Supplement to American Journal of Mental

Deficiency, January 1964” to determine the professional staffing deficiencies at Huronia identified in its 1974 Cabinet Submissions. 243 146. By 1977, Dr. Farmer (General Manager, M.R. Facility Service Division) pointed out that

institutions like Huronia were still unable to meet the minimal AAMD Standards required for custodial care and far below the 1971 Standards required for meaningful programs.244 147. A subsequent memorandum to the Minister of Community and Social Service in

November 1977 makes it clear that even the 1964 standards had not been met:
“ We have been totally frustrated in all our efforts to achieve the 1964 A.A.M.D. standards and, in fact, are presently losing ground in that regard. This despite the fact that the Social Development Policy Committee have agreed to the use of the A.A.M.D. staffing standards and recommended that we are insulated from any further staff reductions.245

241

Plaintiff’ s Request to Admit dated January 16, 2012, Q. 60, Amended Trial Record, Tab 8, Defendant’ s Response to Request to Admit dated January 31, 2012, Q. 60, Amended Trial Record, Tab 9, CR122586/4-8, Ontario Cabinet Submission, Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975). 242 Crown’ s Answers to Undertaking from Examination of B. Low, April 25, 2012 Q#3350; CR044226, Ontario Cabinet Submission, Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975). 243 Plaintiff’ s Request to Admit dated January 16, 2012, Q. 62, Amended Trial Record, Tab 8, Defendant’ s Response to Request to Admit dated January 31, 2012, Q. 62, Amended Trial Record, Tab 9, CR122586/7, Ontario Cabinet Submission, Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975). 244 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, p. 10; CR083963, Memorandum from R.A. Farmer to The Honourable Keith C. Norton (22 November 1975). 245 Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, pp. 42-43; CR083963, Memorandum from R.A. Farmer to The Honourable Keith C. Norton (22 November 1975).

- 49 148. Nevertheless, the Ministry instructed HRC to terminate 221 full-time staffers citing

financial issues.246 Not only was the Crown failing to meet the applicable standards, it was falling farther and farther behind with each passing day. 149. In 1980, Dr. Zarfas (Chairman of the Professional Advisory Committee) again pointed

out that Huronia had still not met even the 1964 Standards (let alone 1971) and “ when this is the case, it is likely that staff and residents alike are at some degree of personal risk” .247 150. By 1985, the practice of locking residents inside wards nevertheless till persisted at HRC.

September 1985 Issue Paper, “ Re Child and Family Services Legislation on Locking Prohibition and Secure Isolation” , confirmed that locking procedures were still being used at HRC. 248 A July 1986 workplan for the Director of Clinical Support Services highlighted as one of its objectives “ provide adequate staffing to meet resident needs” . 249 Nothing was done. 151. A 1982 Ombudsman Report concluded that “ there is general agreement from the on-line

staff as well as the administrative staff at Huronia Regional Centre that there is an employee shortage at the Centre and in particular on PAV Four” .250 Nothing was done. 152. As late as 1992, an internal operation review from the Ministry of Community and Social

Services acknowledged that the improvement of staffing ratios to more acceptable standards had to be addressed.251 It never was.

246

Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 43. 247 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, p. 10; CR032989/18, Disturbed Behaviour in Ontario Mental Retardation Facilities, A Report of the Provincial Professional Advisory Committee to The General Manager M.R. Facility Services Division Ministry of Community and Social Services (July 1980). 248 CR082754/5, Issue Paper Re Child and Family Services Legislation on Locking Prohibition and Secure Isolation, Task Force on Locking Prohibition (September 1985). 249 CR097634/1, Resident Health Services Work Plan Format (1986-1987) (24 July 1986). 250 Plaintiff’ s Request to Admit dated January 16, 2012, Q. 90, Amended Trial Record, Tab 8, Defendant’ s Response to Request to Admit dated January 31, 2012, Q. 90, Amended Trial Record, Tab 9. 251 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 34. Two reports, one on the US and the other from Ontario provide staff to resident ratios for the years 1988 (for the US) and 1989 (for Huronia). According to the 1989 Ontario Ministry report, the staff to resident ratio at Huronia in 1989 was 1.68. This would place Huronia fortieth on the ranking of US states, with thirty-nine states (including the District of Columbia) having higher staff to resident ratios for 1988, and eleven states having lower staff to resident ratios than Huronia. For the US figures, see David Braddock, et al., The State of the States in Developmental Disabilities, Brookes Publishing, Baltimore, 1990. For Huronia,

- 50 153. 154. Even by 1993, HRC still remained “ short-staffed” . 252 As the population of Huronia began to drop, this did not eliminate the severe staffing

problems: the proportion of profoundly and severely disabled residents who remained at the institution dramatically rose, placing an increased burden on the remaining staff.253 155. While minor deficiencies in these ratios or staffing levels may still allow for a reasonable

modicum of custodial care, “ more substantial deficiencies (in the order of magnitude of 10% or greater) do not allow for even a reasonable standard of custodial care, contribute to institutional abuse, and put the health and safety of residents in jeopardy” .254 Huronia’ s staffing was 27.6% below the minimal standards for staffing professionals in a Schedule 1 facility (taking all categories of staff into account).255 Ontario’ s own Cabinet submissions show a 35.1% deficiency in direct care staffing.256 This state of affairs is and was directly connected to resultant
257 “ inadequate custodial care, and jeopardy to health, safety and well-being of residents.”

156.

The Crown has admitted the following figures for staffing at Huronia throughout the

class period:258 Year Direct Care Staff Non-Direct Staff 1945 1946 1947 281 234 264 30 128 121 Care

see CR003213/1, Operational Review of MCSS Multi-Year Plan for Individuals with Developmental Disabilities dated November 1992. 252 Transcript of the examination for discovery of B. Low, February 21, 2012, Q# 455, Line# 22. 253 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 34. 254 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, p. 35. 255 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, pp. 52- 53; CR144360/7, Ontario Cabinet Submission, Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975). 256 CR144360/16, Ontario Cabinet Submission, Minimum Staffing Standards for Facilities Listed in Schedule I and II of The Developmental Services Act, S.O. 1974, c. 2 (24 December 1975). 257 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, pp. 38– 39. 258 Crown’ s Answers to Undertaking from Examination of B. Low, April 25, 2012 Q#3273.

- 51 1948 1949 1950 1951 1952 1953 1954 1955 1956 1957 1958 1959 1960 1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 794.2 760.2 772 675 395 249 260 248 319 319 355 377 607 559 375 144 148 146 147 176 158 167 274 202 227 800 923 1,119 1,132 1,161 1,187 1,187 (January 31), 1,167 (April) 1,225 (December 31), 1,201 (Unknown) 1,225 1,634 1,404 557 745 1,464 1,644 1,644 777.8 697.2

- 52 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 459/400 515.2 415.2 363.3 368.4 623.2 497.8 720.2 706.4 655.4 615.4 633.4 649.8 645.4 639 639 650 674 678 644.6 636.2 638.5 631.6 684.8 665 673.8 660.4 664.4 660.2 633.4 569 569 604.1 561.6 555.2 535.4 507.2 414.9 395.1 1,030 352.3 325.6 875 802 129 129 203.2 175.5 644.85 210/153 729 561.2 510.55

- 53 2008 2009 157. 44.4 38.9 44 These types of deficiencies – understaffing and overcrowding – are conditions directly

connected to incubating abuse. While the primary means of eliminating these conditions at the time would have been to implement the AAMD standards of care and arrange for external oversight by seeking accreditation:
“ there was, however, no indication of any effort to do this on the part of the Ministry. In fact, it has been suggested, that in spite of a number of calls for Huronia to meet standards and seek accreditation, by 1989, they simply gave up on implementing any specific standards.… 259 At the same time, the Ministry was acknowledging that the best way to protect residents at Huronia would have been to improve conditions, actual conditions were deteriorating at Ontario’ s Schedule I facilities and the Ministry was being warned by their own staff that ‘ safety of residents will be endangered’as a result of further deterioration of already substandard staff to resident ratios and specifically identified the importance of meeting 260 the minimum AAMD Standards.”

Causal Effect of Breach of Duty to Maintain Adequate Staff to Resident Ratios – Understaffing 158. With inadequate staffing, it is almost impossible to provide a reasonable level of

protection from assaults. Many unexplained injuries occur in overcrowded understaffed institutions. 261 159. Examples of direct causal links between breaches of standards and common harms to all

residents include the following: (a)
severe overcrowding and understaffing contributes directly to illness and injury as it becomes impossible to maintain adequate sanitation, resulting in high

259

Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, pp. 13– 14, also relying on Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 27. 260 Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, p. 14, relying on CR083975/1-2, Developmental Services Group: Major Impacts of 1978/1979 Estimates Constraints (15 November 1977); CR044331, Memorandum from R.A. Farmer to Dr. D. Crittenden, Deputy Minister, Community and Social Services, Re Request for Information on Facility Population and Staffing (14 December 1977). 261 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, pp. 33-34.

- 54 incidents and frequency of diseases like hepatitis, dysentery, tuberculosis, parasites and influenza;

(b) (c)

overcrowding more than doubles the risk of child abuse and inadequate staffing makes it impossible to provide a reasonable level of protection from assaults; understaffing and overcrowding leads to heavy reliance on medications and restraints to control behavior, many of which are known to cause serious health problems; the Hepatitis B rate of infection at Huronia was 35 times higher than the average Ontario sample and 70% higher than the lowest rate reported in similarly situated American institutions, most of these residents having contracted the disease within less than 2 years of admission; communicable diseases were present at Huronia with alarming frequency, well above average rates of infection, and were a source of significant suffering and in all probability, reduced the expectancy of significant numbers of residents; systemic or institutional abuse (as opposed to isolated incidents) is facilitated by institutional characteristics, policies, procedures and practice – overcrowding, understaffing, failures to provide adequate supervision and excessive use of restraints all contribute to an environment of systemic abuse; the failure to provide sufficient staffing levels for meaningful supervision and prevention of violence constitutes neglect or breach of duty of care as there is a direct connection between staffing levels and escalation of harm to residents.262

(d)

(e)

(f)

(g)

160.

Even the Crown’ s own expert evidence admits that placing large numbers of often

helpless and always vulnerable people of both sexes in immense, aging, understaffed institutions with minimal programmes or activities created an environment propitious for abuse.263 161. In particular, examples of events caused as a result of Huronia’ s understaffing include the

following: (a)
in the living unit called “ the Pavilion” , for people assessed as being more severely disabled, groups of up to 50 people were seen in day rooms between meal times where there were no toys or activities for them and the only furniture in such day room were heavy wooden benches;264

262

Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, pp. 32– 44 and 55– 70. 263 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 43. 264 Affidavit of Marilyn Dolmage sworn July 26, 2009, at para. 61; Anticipated evidence of M. Dolmage.

- 55 (b) (c)
residents walked and crawled around in foul smelling day rooms and the residents were often soiled with urine and feces.265 in “ D Cottage” , another residence for men and boys assessed as more severely disabled, the men were fed in one room and immediately taken to an adjacent room after meals where they were sprayed down with hoses to wash them from head to toe;266 many residents routinely had all their teeth removed as a way to avoid one resident hurting;267 some living units had spray tables instead of bathtubs;268 the most disabled residents would be dressed in what were known as “ monkey suits” , a type of one piece clothing that was difficult to remove, while others might be partially or fully naked;269 and
270 in the hospital area, residents could be confined to “ cage cots” which were 271 cribs with bars across the top as well as around the sides.

(d) (e) (f)

(g)

162.

After public attention was focused on this use of cages at Huronia, the facility’ s

Administrator Richard Wilson explained that he did not like the use of these "barred beds" but that they were necessary because there was not adequate staff to provide proper supervision. 272 163. Expert evident has deemed the “ caged cot” practice, which was allowed or mandated by

the Huronia administration, as “ clearly abusive”as a “ significant number of residents were caged for many hours days after day” :
“ The Ministry’ s explanation that these cages were inappropriate but necessary because they were unable to properly supervise the residents clearly suggests they were incapable of fulfilling their duty to provide humane care. The rationale that institutional administrators used to justify the use of crib-cages was directly related to failure to meet standards for staffing. The rationale that the Ministry and Huronia administrator used to justify the inhumane and abusive use of cages was very similar to the rationale used by
265

Affidavit of Marilyn Dolmage sworn July 26, 2009, at para. 61; Examination for Discovery of M. Dolmage, November 1, 2011, pp. 154, 155, Q. 368, 369, 370– 373; Anticipated evidence of M. Dolmage. 266 Affidavit of Marilyn Dolmage sworn July 26, 2009, at para. 62; Examination for Discovery of M. Dolmage, November 1, 2011, p. 48, Q. 108; Anticipated evidence of M. Dolmage. 267 Affidavit of Marilyn Dolmage sworn July 26, 2009, at para. 65; Anticipated evidence of M. Dolmage. 268 Affidavit of Marilyn Dolmage sworn July 26, 2009, at para. 63; Anticipated evidence of M. Dolmage. 269 Affidavit of Marilyn Dolmage sworn July 26, 2009, at para. 63; Examination for Discovery of M. Dolmage, November 1, 2011, p. 50, Q. 118, 119, 120; Anticipated evidence of M. Dolmage. 270 Examination for Discovery of M. Dolmage, November 1, 2011, p. 23, Q. 50, 51, 52; Anticipated evidence of M. Dolmage. 271 Affidavit of Marilyn Dolmage sworn July 26, 2009, at para. 64; Anticipated evidence of M. Dolmage. 272 Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 39; CR090323, “ Ontario's compassion failed” , The Globe and Mail (7 April 1971).

- 56 staff to justify their own abusive actions. It is very possible the statement of the administrators provided a model or template for the rationale provided by abusive 273 staff.”

164.

It is well known that substandard conditions by themselves contribute to abuse.274 Even

the Crown’ s own expert says that by as early as 1969, Ministry staff in both the Ministry of Health and the Ministry of Community and Social Services recognized that understaffing, overcrowding, and inadequate facilities were important contributing factors to the resident abuse problem:275
“ In the absence of substantial improvements in these conditions, attempts to prohibit abuse were unlikely to produce much improvement. … Improving substandard conditions would have made a critical contribution to the elimination of abuse and to better 276 protecting the residents.”

(iii)

Implementation of Abuse Prevention and Reporting Policies – the Crown breached this duty of care by failing to implement effective policies which would prevent or minimize abuse, by failing to respond to information that abuse policies were not being adhered to and by failing to sufficiently educate staff on the policies or consequences of non-adherence.

165.

With respect to physical, sexual and emotional abuse, expert evident shows that “ abuse

and neglect of residents was a significant problem at Huronia throughout the period from 1945 to 2009” , occurring with “ extremely high frequency… the number of instances over the entire period may have been [in the] constant threat” .277 166. Allegations of abuse made by residents were routinely discounted or ignored, hundreds of thousands,” with “ all residents liv[ing] under

investigations were poorly conducted and the general failure to meet standards regarding
278 retention of medical records “ made proper investigation of the allegations impossible.” In

273

Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, pp. 78– 79. 274 Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, pp. 32– 34. 275 Dr. Simmons Report on the Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 43. 276 Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, pp. 15– 16. 277 Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 58. 278 Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, pp. 59– 60.

- 57 some cases, the evidence shows that “ documents were falsified to dismiss allegations of abuse” .279 167. The Crown admits and acknowledges that it had some duty to respond to allegations of

abuse.280 Crown’ s Acknowledgement of the Standard and Awareness of Breaches 168. A February 15, 1965 memo from the Honourable M. B. Dymond, then Minister of

Health, to all superintendents of Ontario Hospital Schools, noted: “ in connection with recent grievances against dismissal for striking patients, information has reached me that some hospital attendants claim that they were told during their training course that there is a place for striking a
281 patient as part of acceptable application of restraint.”

169.

The Crown admits that where an allegation of abuse was made to a staff member at

Huronia, the staff member was not obliged to report abuse the alleged by residents. It would be a judgment call whether to record the allegation in the log and or report it directly to a supervisor.282 This was a very serious breach of the standard of care applicable in the situation. 170. The Crown also admits that documentary records first reflect the policy direction at

Huronia to notify police where a resident has been subjected to what appears to have been a criminal act in a memo dated June 10, 1976.283 Prior to 1978, the involvement of the police in respect of allegations of resident abuse at Huronia was considered discretionary and was based on the findings and decision of the Administrator.284

279

Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 61. 280 Statement of Defence at paras. 25, 71, Amended Trial Record, Tab 2. 281 CR177922/1, Memorandum from The Honourable M. B. Dymond, Minister of Health to All Superintendents Ontario Hospital Schools (15 February 1965). 282 Transcript of the examination for discovery of B. Low, February 22, 2012, Q2 891, Line# 22-25. 283 Crown’ s Answers to Undertaking from Examination of B. Low, April 25, 2012 Q#3325. 284 Crown’ s Answers to Undertaking from Examination of B. Low, February 24, 2012 Q#1801.

- 58 171. By 1976 numerous specific recommendations had been made directly to the Crown to

identify, halt, report and eliminate abuse and to provide an appropriate level of care to Huronia residents.285 The Willard Report included the following recommendations: (a) (b) (c) (d)
that the procedure for dealing with resident abuse provide for an ombudsman function so that an independent review of abuse allegations could be assured; special units for serious behavioural problems at Huronia be designated as psychiatric units; the position of residential counsellors under Directive 17(N) regarding resident abuse be clarified particularly with respect to physical restraints of residents; residential counsellors and their supervisors be given training courses to improve their understanding of residents’rights, abuse, discipline and Huronia’ s policies and procedures; a review of medications dispensed be conducted by a third party outside the MCSS.286

(e)

172.

The Willard Report also recommended the clarification of policies as to when physical

force crosses the threshold from being a positive and reasonable intervention to something that would fall under the terms of directive 17N.287 173. The 1978 proposed set of “ Guideline for the Investigation of Resident Abuse and

288 Suspected Resident Abuse in Schedule 1 Facilities” proposed that a central registry of all cases

of suspected resident should be summarized and kept in a central registry for periodic review and monitoring.289 No such central registry was established.290

285

Plaintiff’ s Request to Admit dated January 16, 2012, Q. 80, Amended Trial Record, Tab 8; Defendant’ s Response to Request to Admit dated January 31, 2012, Q. 80, Amended Trial Record, Tab 9; CR035897/1, Report of the Task Force Dealing with Resident Abuse; CR035896/1, Memorandum to A.P. Gordon, Assistant Deputy Minister from Dr. Donald E. Zarfas, Special Consultant in Mental Retardation (27 June 1975). 286 Plaintiff’ s Request to Admit dated January 16, 2012, Q. 70, Amended Trial Record, Tab 8; Defendant’ s Response to Request to Admit dated January 31, 2012, Q. 70, Amended Trial Record, Tab 9; CR039517/19-21, 29, 31, 61, 66, 88, 102, 103, Inquiry into the Management and Operation of the Huronia Regional Centre, Orillia by Joseph W. Willard (November 1976). 287 Transcript of the examination for discovery of B. Low, February 23, 2012, Q# 1027, Line# 19-1. 288 CR035863, Re: Guidelines for the Investigation of Resident Abuse and Suspected Resident Abuse in Schedule I Facilities (April 1977). 289 Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#348; CR035863, Re: Guidelines for the Investigation of Resident Abuse and Suspected Resident Abuse in Schedule I Facilities (April 1977); CR077712, Memorandum from R.A. Farmer, General Manager M.R. Services Division to Mr. A. Gordon, Deputy Minister (19 April 1978).

- 59 174. The 1978 draft “ Standards for the Use of Behavioural Procedures in Ontario Facilities

For the Developmentally Disabled” , developed by a committee of Chief Psychologists employed at Schedule 1 facilities, required the establishment of an External Audit and Review Committee to provide the facility with and external source of appraisal for more severe treatment procedures.291 175. Despite being required by the draft “ Standards for the Use of Behavioural Procedures in

Ontario Facilities for the Developmentally Disabled” , an External Audit and Review Committee was never adopted by the Crown.292 The External Audit and Review was not included in the final version of the “ Standards for the use of behavioural modification and related behavioural procedures in facilities for the mentally retarded”in June 1978.293 176. Moreover, despite the Willard Report’ s specific recommendation to have an ombudsman
294

in place to deal with allegations of abuse at Huronia, the Crown never appointed any ombudsman for this purpose. This was so even though in a statement by the Honourable James Taylor,

Q.C. dated November 22, 1976, to the Ontario Legislature, in response to the the Willard Report: "I see much merit in the recommendation concerning abuse and staff discipline, particularly in the suggestion that an "ombudsman function be established so that independent review of allegations of abuse will be assured." Notwithstanding this statement, no ombudsman was ever established.

290

Only a summary report was referred to in the final Guidelines, but no Central Registry was created or ongoing monitoring was done. See Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#348 and CR029963, Guideline for the Investigation of Resident Abuse and Suspected Resident Abuse in Schedule 1 Facilities (June 1978). 291 Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#236 and 252; CR033212, Standards for the Use of Behavioural Procedures in Ontario Facilities For the Developmentally Disabled (April 1978). 292 Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#236; CR033212, Standards for the Use of Behavioural Procedures in Ontario Facilities For the Developmentally Disabled (April 1978). 293 Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#255; CR148796, Standards for the use of behavioural modification and related behavioural procedures in facilities for the mentally retarded (June 1978). 294 Transcript of the examination for discovery of B. Low, February 23, 2012, Q# 1060, Line# 7; Transcript of the examination for discovery of B. Low, April 25, 2012, Q# 3282, Line# 23-25.

- 60 177. The Crown admits that the Provincial Auditor in 1990 concluded that the reporting of

resident abuse was questionable.295 178. Despite continued re-drafting of abuse policy, a June 2001 Crown memo still noted,

296 “ staff not reporting incidents of suspected abuse.” Even by 2005, the government continued to

issue memos on “ serious occurrences,” with an Assistant Deputy Minister noting, “ There is a need to implement more timely action with respect to reporting and monitoring serious
297 occurrences.”

179.

As staff were afraid to report abuse despite its apparent frequency, and considering the

fact that complaints by residents were frequently discounted or ignored and given that every aspect of the residents’lives were controlled by staff, “ residents would have been extremely fearful about reporting abuse or doing anything else that might antagonize them” .298 180. Moreover, the discrepancy between the observations of outsiders who often reported

abusive incidents and the observations of Huronia’ s staff or supervisors “ should have made it clear to Huronia and Ministry administrators that their approach to controlling abuse was largely ineffective”because:
“ A system that depended on staff members to report abuse to supervisors and supervisors to report to the administrator and to investigate largely by asking staff members for statements had little chance of making any significant difference. This would have been apparent to any reasonable person. This system may have allowed administrators to say that they were taking a strong stand against abuse, but would have done very 299 little to actually change conditions.” [emphasis added]

295

Plaintiff’ s Request to Admit dated January 16, 2012, Q. 94, Amended Trial Record, Tab 8; Defendant’ s Response to Request to Admit dated January 31, 2012, Q. 94, Amended Trial Record, Tab 9, CR003653/10-11, Notes for Minister Briefing on Developmental Services (14 April 1992). 296 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 46; CR161504/3, Ontario Management Board Secretariat Internal Audit Division Ministry of Community and Social Services Audit Committee Report (June 2001). 297 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 46; HRCE037264, Memo to Regional Directors from Terry McCarthy, Assistant Deputy Minister (29 December 2005). 298 Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 65. 299 Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, pp. 65– 66.

- 61 Examples of Evidence of Chronic Abuse, Failure to Report and Employee Code of Silence 181. In a memorandum dated October 30, 1973, pursuant to a discussion concerning the

problems and procedures with regard to reporting witnesses abuse, B.O. Nirje, Co-ordinator, Training, Retardation Services Branch provided:
With regard to the lines of communication outside the regular vertical for staff who observe or witness abuse, considerable difficulties were encountered during our discussion. The following series of relations and considerations were made: 1. The witness and the culprit know each other and are friends and consequently there will be no report. 2. The witness of the culprit do not know each other that well, but considerations as to the social consequences for both of their families etc. will cause the witness not to dare report.... However, with regard to the last point, I might add that as the supervisor might have the same social or family relations and concerns with regard to the culprit, as the witnesses as mentioned in examples above, nothing might come of it. Experiences so far have shown that this not a very efficient way of reporting. 300

182.

In a decision dated June 19, 1974, after reporting an incident of abuse against another

employee, Mrs. J. Mayes, a counsellor at Huronia stated, “ she had become the object of such illwill from fellow employees that it became necessary to move her to another part of the
301 Centre.”

183.

In a letter dated May 31, 1976 from Wm. B. Blanche, Chief of Police to John J. Murphy,

Crown Attorney, Blanche recounted two incidents in which there was a failure to properly report criminal acts. Blanche stated, “ to further complicate the matters, one of the female counsellors walked by and observed the victim and the alleged assailant having intercourse and took no
302 action in the matter to see if the victim was being raped or whether she was a willing partner.”

184.

Blanche further stated, “ in conclusion, I point out to you that we have not received the

proper cooperation from officials at the Huronia Regional Centre which is needed to carry out
303 serious criminal investigations.”

300

RCR011450, Memorandum from B.O. Nirje, Co-ordinator, Training, Retardation Services Branch to Dr. D. E. Zarfas, Director, Retardation Services Branch (30 October 1973). 301 CR114201, Grievance Decision (19 June 1974). 302 CR009084, Letter from Wm. B. Blanche, Chief of Police to John J. Murphy, Crown Attorney (31 May 1976). 303 CR009084, Letter from Wm. B. Blanche, Chief of Police to John J. Murphy, Crown Attorney (31 May 1976).

- 62 185. In a memorandum dated January 28, 1977 from R. J. Wilson, Director, M.R. Residential

& Consulting Services Branch to D. Abramowitz, Employee Relations, Wilson stated:
“ Frequently staff members who may commit punishable offences are not punished because of inadequate proof of the charges against them. This can come about for a number of reasons, including peer pressure, … There are also a number of long-term employees who can make work so unbearable for a new employee, by excluding them from coffee breaks, and cutting them out from informal conversational communication, and assigning them very menial tasks, etc. that they very effectively silence them should 304 they observe resident abuse.”

186.

In a memorandum from G.D. Verkaik, Manager Regional Laundry & Linen Services to

Mr. C.C. Paylor, Assistant Administrator dated May 20, 1977, Verkaik stated, “ I was told by Harold Bain, Laundry Worker Two, who worked on Saturday May 14, 1977 in the laundry, that about 10:00 hrs. he observed a female resident being slapped different times by a male staff, on the playgrounds of “ O. Cottage” ; other staff were standing around the female resident at the
305 above incident.”

187.

In a letter dated September 9, 1977, Carol Higgins, a summer student, wrote to Mr.

Gregory, stating:
“ I think it’ s good that staff [s]tand up for each other and stick together. However at H.R.C. it seems to be the wrong kind of loyalty. It is loyalty that says “ I won’ t report you for beating up that resident if you don’ t report me for beating up this one.” ... All other staff that I’ ve met either take part in abusing the residents, or, although they don’ t do it themselves, don’ t care enough to report the ones who do, or, are too afraid to do 306 anything. Any staff who reports another will have a miserable time at work.”

188.

In a note to file by Peter Malton, Assistant Administrator, Developmental Services dated

July 6, 1978, Malton described a conversation with Joyce Lee:
“ No one will ever speak up against a fellow employee unless backed into a corner. (Shelia Pue is still suffering ostracism over the Johnston case)... A staff might come speak to me but it would have to be secret, and they probably won’ t because if I heard

304

CR032206, Memorandum from R. J. Wilson, Director, M.R. Residential & Consulting Services Branch to D. Abramowitz, Employee Relations (28 January 1977). 305 CR093819, Memorandum from G.D. Verkaik, Manager Regional Laundry & Linen Services to Mr. C.C. Paylor, Assistant Administrator (20 May 1977). 306 RCR014985, Letter from Carol Higgins to Mr. Gregory (9 September 1977).

- 63 anything I would have to take action... The vociferous residents (Kuruliak, Wilton, etc., who would be expected to complain about such abusive acts) are “ far too frightened of staff to say anything” ... I feel that with no clear evidence and continuing staff refusal to 307 inform on co-workers, that this attempt at corrective action is an appropriate one.”

189.

A report of the Ministry of Community and Social Services Task Group dated November

16, 1978 stated:
“ Incidents of resident abuse may go unreported because staff who are witnesses fear that there may be personal reprisals and/or recrimination. This strong peer pressure serves to inhibit and discourage the reporting of cases of resident abuse, except for staff who have the option of leaving the facility (e.g. many cases of resident abuse are reported by summer students).”

190.

Further, “ there seems to be an attitude that even if a person reports a case of resident

abuse, the outcome will be the ultimate re-instatement of the offender, thus making the risks of reporting “ all for nothing” . The attitude is one of “ why bother” , and hence avoiding any unpleasant consequences. Generally this issue relates to a lack of confidence in senior
308 government authorities to effect fair justice and decisions in the cases of resident abuse.”

191.

Notes dated December 14, 1978 marked “ Confidential”state:
“ Most complaints advise of everyday resident abuse in some form. Most informants fear job and fellow employee reprisals.” ; “ Several staff (not suspects) won’ t talk about anything but acknowledge abuse does occur.” ; and “ Meeting at Holiday Inn, 1976 –Cec Woods, Duncan Fleming (Frank Bishop?) and students – met and resident abuse discussed. Students told to put complaints in writing and forward to College and/or Administrator. Fleming never advised superiors. The journals containing complaints were forwarded to Woods who stated they were inadvertently destroyed. Also the journals from 309 class of 1978 (just returned) also have been destroyed after being previously requested.”

192.

In a memorandum from G.W. Hankin, Detective Inspector, Criminal Investigations

Branch to the Director, Criminal Investigation Branch dated January 30, 1979, Hankin provided notes from interviews of witnesses concerning alleged assault at Huronia:

307 308

CR127648, Note to file by Peter Malton (6 July 1978). CR029229, Report of Ministry of Community and Social Services Task Group (16 November 1978). 309 RCR014954, Confidential, Dec. 14, 1978.

- 64 “ (2) Oksana Daria Chomickyj... Residential Counsellor (2)... stated she has knowledge of and has seen abuses of residents – will not elaborate due to fear of reprisals from fellow workers (4) Carl Milton Edwards, Residential Counsellor (3) -concerned about suspicious injuries to residents; also suspects accident reports falsified in Pavilion (2) – stated he has notified his supervisor, Gail Parsons, who chose to ignore his complaints... (5) Terry Lynn Rodda...Residential Counsellor (2) – claims Supervisor Mike LaFaive covers up abuse, does not want to hear anything. She had complained to him about abuse to no avail... – June 1978 –observed black and blue marks on Scheurman’ s back. She reported same to Michael LeFaive who put it down as accident. She was convinced it was abuse – could not be determined what caused injury... some persons refused to give information for fear of reprisals from other staff members... On September 18, Rosemary Dings advised that on September 14, while at the Holiday Inn, Orillia, she was approached by lee Faux and informed that if she testified in any proceedings against Faux or fellow staff members, she had better run for her life... –most informant (or would be informants) fear 310 job or fellow worker reprisals.”

193. 194.

Nothing appears to have been done about this problem. A report entitled Comments on the Task Force Report on Resident Abuse dated May 18,

1979 states, “ poor reporting record of abuse cases as a result of: the absence of sanctions against not reporting incidents, strong peer pressure and a fear of personal reprisal and/or recrimination (except in the case of staff leaving the facilities, i.e., summer students), a belief among staff that
311 the Ministry lacks the “ power”to take action against abusers.”

195.

In a memorandum to D. Cornish, Administrator from J.D. Fecht, Acting Assistant

Administrator dated October 14, 1986, Cornish stated Terry Cockburn contacted the Service Manager regarding an incident of employee abuse on a resident: “ When the incident was first reported to Ron Hewitt, Terry indicated that he had fears for his safety from the other staff on duty and he wanted to move out of his cottage immediately. He further indicated he will be
312 intimidated by staff on his shift.”

196.

Patricia Pandke stated on January 17, 1989 in the context of reporting ongoing abuse by

Huronia employees: “ my only rationale for not coming forward sooner is and remains to be that I

310 311

RCR014935, Memorandum from G.W. Hankin to Criminal Investigation Branch (30 January 1979). CR157915, Comments on the Task Force Report on Resident Abuse (18 May 1979). 312 CR054813, Memorandum from J.D. Fecht, Acting Assistant Administrator to D. Cornish, Administrator (14 October 1986).

- 65 have a genuine fear of what these people might do to my family and myself in the event that one
313 or all chose to seek revenge.”

197.

In a letter from Margaret Gallow, Administrator to Fraser Wilson, Dean, Applied Arts

Division, Cambrian College dated October 2, 1989, Gallow stated: “ I trust you appreciate that I am deeply concerned with the questions the students raised about our standards of care and about the intimidating actions of our staff towards people who have the same duty to speak out on
314 behalf of our residents.”

198.

In a letter from Margaret Gallow, Administrator, to Ivy Lapoint, Cambrian College

student dated October 2, 1989: “ I was deeply distressed by the concerns you raised about unacceptable standards of care to our residents and shocked to hear that staff had created an
315 environment of intimidation and fear.”

199.

The 1990 Annual Report of the Office of the Provincial Auditor states:
“ However, there were also instances where disciplinary action was not taken against employees failing to report abuse. A 1989 Ministry investigation revealed that three counsellors had failed to report 17 separate incidents of abuse involving physical assault of residents over a one-year period. None of the counsellors were subjected to disciplinary action as required by facility policy... In reviewing reports of Ministry investigations, we also noted circumstances which suggested that some abuse was not reported... Two investigations noted concerns among staff witnesses about possible persecution and harassment from other staff for reporting abuse. Some employees could have been reluctant to report abuse because of concerns for their own safety. Another report noted evidence that employees had not adequately questioned, communicated or followed through on allegations of abuse.316

200.

The only action taken by the Crown to ensure that staff reported allegations of abuse was

Directive 17317 and Personnel Directive 37318 in which it was stated policy that staff would report

313 314

CR054103, Letter from Patricia Pandke, RCII (17 January 1989). CR105427, Letter from Margaret Gallow to Fraser Wilson (2 October 1989). 315 CR105428, Letter from Margaret Gallow to Ivy Lapoint (2 October 1989). 316 CR204007/20, 1990 Annual Report of the Office of the Provincial Auditor (27 November 1990). 317 CR094874, Memorandum to Facility Administrators, Regional Personnel Managers, Facility Personnel Managers from Dorothea Crittenden (21 June 1977). 318 CR135854, Personnel Directive #37, to All Divisions, Branches, and Facilities (1 November 1980).

- 66 any witnessed acts of abuse to resident failing which disciplinary action would be undertaken.319 These proved to be ineffective, which the Crown’ s own evidence supports. 201. For example, the Crown’ s documentary evidence reveals the following pattern of

unreported and uninvestigated incidents of resident abuse at Huronia in light of the pervasive “ code of silence”that that persisted amongst employees:
(a) “ I think it’ s good that staff [s]tand up for each other and stick together. However at H.R.C. it seems to be the wrong kind of loyalty. It is loyalty that says “ I won’ t report you for beating up that resident if you don’ t report me for beating up this one.” ... All other staff that I’ ve met either take part in abusing the residents, or, although they don’ t do it themselves, don’ t care enough to report the ones who do, or, are too afraid to do 320 anything. Any staff who reports another will have a miserable time at work.” (b) “ no one will ever speak up against a fellow employee unless backed into a corner. (Shelia Pue is still suffering ostracism over the Johnston case)... A staff might come speak to me but it would have to be secret, and they probably won’ t because if I heard anything I would have to take action... I feel that with no clear evidence and continuing staff refusal to inform on co-workers, that this attempt at corrective action is 321 an appropriate one.” (c) “ incidents of resident abuse may go unreported because staff who are witnesses fear that there may be personal reprisals and/or recrimination. This strong peer pressure serves to inhibit and discourage the reporting of cases of resident abuse, except for staff who have the option of leaving the facility (e.g. many cases of resident abuse are reported 322 by summer students).” (d) “ most informants fear job and fellow employee reprisals, … Several staff (not 323 suspects) won’ t talk about anything but acknowledge abuse does occur.” (e) “ (2) Oksana Daria Chomickyj... Residential Counsellor (2)... stated she has knowledge of and has seen abuses of residents –will not elaborate due to fear of reprisals 324 from fellow workers” (f) “ poor reporting record of abuse cases as a result of: the absence of sanctions against not reporting incidents, strong peer pressure and a fear of personal reprisal and/or 325 recrimination (except in the case of staff leaving the facilities, i.e., summer students)”

319 320

Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#356. RCR014985, Letter from Carol Higgins to Mr. Gregory (9 September 1977). 321 CR127648, Note to file by Peter Malton (6 July 1978). 322 CR029229, Report of Ministry of Community and Social Services Task Group (16 November 1978). 323 RCR014954, Confidential, Dec. 14, 1978. 324 RCR014935, Memorandum from G.W. Hankin to Criminal Investigation Branch (30 January 1979).

- 67 (g) “ staff will not testify against one another... parents commend staff who ‘ rat’on others are ostracized” .326 (h) “ when the incident was first reported to Ron Hewitt, Terry indicated that he had fears for his safety from the other staff on duty and he wanted to move out of his cottage 327 immediately. He further indicated he will be intimidated by staff on his shift.” (i) “ my only rationale for not coming forward sooner is and remains to be that I have a genuine fear of what these people might do to my family and myself in the event 328 that one or all chose to seek revenge.” (j) “ I trust you appreciate that I am deeply concerned with the questions the students raised about our standards of care and about the intimidating actions of our staff towards 329 people who have the same duty to speak out on behalf of our residents.” (k) “ [Cindy Philion] states that she refused [to report an incident] because from previous personal experience, she and others had reported an incident and [Cindy Philion] felt harassed and reprimanded by management for not bringing the issue forward sooner. [Cindy Philion] also received reprisals from her colleagues. ...Therefore, [Cindy Philion] lacks faith in her immediate supervisors and the system for reporting concerns. [Cindy Philion] states that contrary to [illegible], unless a situation was very detrimental, 330 she would not report the incident.” (l) “ staff have expressed concern to [Linda Lee, Registered Nurse] that they wish to remain anonymous as they are harassed and intimidated by others for raising concerns. [Linda Lee] indicates that she has encouraged the staff to report these situations but they are reluctant to put their concerns in writing.”and finally, CONCLUSIONS... Contrary to the Ministry’ s Standards of Conduct, there is evidence that staff are reluctant to report 331 incidents of suspected client abuse.” (m) “ I was told, my first day on the ward, to do all, see all, and say nothing; this was 332 my first indication that I was about to observe brutality.” (n) “ they had not come forward because they were frightened of the violence they 333 had witnesses [sic] and worried that they would be hurt if they reported it.”

325 326

CR157915, Comments on the Task Force Report on Resident Abuse (18 May 1979). CR072907, Minutes of the Parents Meeting (25 April 1980). 327 CR054813, Memorandum from rom J.D. Fecht, Acting Assistant Administrator to D. Cornish, Administrator (14 October 1986). 328 CR054103, Letter from Patricia Pandke, RCII (17 January 1989). 329 CR105427, Letter from Margaret Gallow, Administrator to Fraser Wilson, Dean, Applied Arts Division, Cambrian College of Applied Arts and Technology (2 October 1989). 330 CR089400, Ministry of Community and Social Services Review Report into Mistreatment of Clients by a Residential Counsellor (April 2000). 331 CR089400, Ministry of Community and Social Services Review Report into Mistreatment of Clients by a Residential Counsellor (April 2000). 332 CR076212, Physical Mistreatment of Residents as described by the students in their own words.

- 68 (o) “ one can certainly imagine that other staff members would be intimidated and simply frightened into silence after seeing such horrific exhibits of disturbed, totally 334 unprofessional behaviour from three fairly strong men.”

202.

One of the Crown’ s experts has admitted that while the “ code of silence”amongst staff

“ does not generally extend to... sadistic behaviour, sexual exploitation or serious injuries to patients... there are powerful factors at work... to hinder prompt reporting of severe patient abuse by employees as well as by patients … [t]he single most important reason... is the ineffectiveness
335 of the disciplinary system in investigations allegations of patient abuse.”

203.

Expert evidence further reveals that systemic institutional codes of silence do not develop

when abuse is a rare or occasional occurrence. Rather, they develop only when abuse is well established as a systemic occurrence in institutions:
“ … supervisors and administrators at Huronia knew or certainly should have strongly suspected that abuse was an ongoing and frequent problem, and that the vast majority of cases were never officially reported or investigated. The residents knew but they were ignored. The direct care staff knew but some were perpetrators themselves and others 336 were intimidate by the code of silence.”

204.

These examples typify the long, entrenched, systemic nature of inadequate abuse

prevention and reporting policies which failed to protect residents from abuse.

333 334

CR054311, Briefing Notes Charges of Assault Laid Against Staff At Huronia Regional Centre. CR054097, Letter from Patricia Pandke, RCII. 335 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, pp. 46-47; Sundram, p. 242. An extensive review of the MDC in 1978 listed a series of conditions which mirror those mentioned by Sundram as conducive to abuse: "low staffing . . . not enough support staff . . . frustration at being able to provide only custodial care . . . staff don't get feedback from ideas or recommendations. . . staff have seen little or no results from all the reviews and inspections. . . management has been slack in dealing with 'dead wood'. . . frustration at seeing so few residents re¬entering the community and pressure from. . . waiting list ... [f]rustrations with physical facilities that are old, overcrowded and poorly equipped." Manitoba, Program Analysis and Review Branch, Resources Division, Manitoba Department of Health and Social Development, "Manitoba School Program Review," 1978. 336 Professor R.J. Sobsey, Reply Report to Dr. Martin, May 21, 2013, p. 11.

- 69 Common Issue B: By its operation or management of Huronia from 1945 to 2009, did the defendant breach a fiduciary duty owed to the Resident Class to protect them from actionable physical or mental harm? (1) 205. Did the Defendant owe a fiduciary duty to the Resident Class? Despite the weight of judicial authority to the contrary, and its admission at the

certification motion of such a duty,337 the Crown now baldly denies owing any fiduciary duty whatsoever to the Resident Class.338 206. There is a general legal presumption that “ everyone charged with responsibility for the

care of children is under a fiduciary duty towards such children” . 339 Moreover, the relationship between the Crown and the Resident Class bears all of the hallmark indicia of a fiduciary one, as those have been articulated by the Supreme Court of Canada: 340 (a)
the residents of HRC were entirely and exclusively, every day, within the power and control of the Crown, thereby subjected to its unilateral power and discretion; by virtue of the relationship between the disabled residents and the Crown (being one of trust, reliance and dependence), the Crown owed a fiduciary obligation to ensure that the residents were treated respectfully, fairly, safely and in all manners consistent with the duties of a party standing in loco parentis to an individual under his care and control; as a result, the Crown owed a fiduciary duty to the resident to act in their best interests and protect them from abuse, including but not limited to, mental, emotional, physical, sexual or otherwise; and the residents were entitled to rely, and did rely upon, the Crown to their detriment, to fulfill its fiduciary obligations.

(b)

(c)

(d)

207.

As this court determined in Seed v. Ontario, the Crown’ s fiduciary duties in this case are

similar to that of a parent for precisely the same reasons:

337 338

Reasons for Certification of Cullity J., July 30, 2010, at para. 140, Amended Trial Record, Tab 4. Statement of Defence at para. 63, Amended Trial Record, Tab 2. 339 C.A. v. Critchley (1998), 166 D.L.R. (4th) 475 (B.C.C.A.) at para. 18. 340 Frame v. Smith, [1987] 2 S.C.R. 99 at para. 60; Norberg v. Wynrib, [1992] 2 S.C.R 226 at para. 69; Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574 at para. 32.

- 70 “ The defendant exercised control over the operation and management of Ross MacDonald [a school for the blind] and over the lives of the students. Further, the students of Ross MacDonald were particularly vulnerable to the defendant [the Province] by virtue of their visual disabilities. In this context, there was a reasonable expectation that the defendant would act in their interests for their care and safety. … The defendant owed a fiduciary duty to the students to ensure that reasonable care was taken of the students both physically and emotionally and they were protected from intentional torts. The defendant had a responsibility to ensure the students’ safety at school and in 341 residence.”

208.

Adopting the reasoning of the court in M.(K.) v. M.(H.), the same applies with equal force

to this case where the Crown stood in loco parentis to the Resident Class:
“ Even a cursory examination of these indicia establishes that a parent must owe fiduciary obligations to his or her child. Parents exercise great power over their children’ s lives, and make daily decisions that affect their welfare. In this regard, the child is without 342 doubt at the mercy of her parents.”

209.

McLachlin C.J.’ s description regarding the essential nature of a fiduciary relationship in

K.L.B. v. British Columbia, is apposite here:
“ The children are doubly vulnerable, first as children and second because of their difficult pasts and the trauma of being removed from their birth families. The parties agree that, standing in the parents’stead, the Superintendent has considerable power over vulnerable children, and that his placement decisions and monitoring may affect their lives and well343 being in fundamental ways.” [emphasis added]

210.

Perhaps the most quintessential hallmark of a fiduciary relationship is that the relative

legal positions are such that one party is at the mercy of the other’ s discretion: “ where by statute, agreement or perhaps by unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power, the party thus empowered becomes a fiduciary. Equity will then supervise the relationship by holding him to the fiduciary’ s strict standard of conduct” .344

341 342

Seed v. Ontario 2012 ONSC 2681 (S.C.J.) at paras. 103 –104. M.(K.) v. M.(H.)[K.M. v. H.M.], [1992] 3 S.C.R. 6 at para. 74. 343 K.L.B. v. British Columbia, [2003] 2 S.C.R. 403 at para. 38. 344 Guerin v. Canada, [1984] 2 S.C.R. 335 at para. 102, relying upon Ernest J. Weinrib, “ The Fiduciary Obligation”(1975) 25 U.T.L.J. 1 at 7, cited with approval in M.(K.) v. M.(H.), [1992] 3 S.C.R. 6 at para. 73.

- 71 211. While the content of the obligation may vary depending on the relationship,

fundamentally, it is a duty of loyalty and will most often include, at the very least, the avoidance of a conflict of duty and interest and a duty not to profit at the expense of the beneficiary.345 212. Courts have consistently imposed fiduciary duties or characterized similar relationships

as fiduciary in nature:346
“ the conduct of the Crown in assuming to act for the benefit of children in its care is more than just an administrative or public action on the part of the Crown. It has roots in the parens patriae power of the Crown to act in the best interests and for the benefit of those 347 entrusted to its case due to inability to care for themselves.” [emphasis added]

213.

Given the relative position of the Resident Class vis a vis the Crown, and the Crown’ s

unilateral undertaking respecting the vulnerable residents’daily care and well-being, the Crown owed a duty of loyalty, a duty to avoid conflicts of interest and a duty not to profit at the expense of the Resident Class. There is little doubt that this is one of those situations “ that are truly in need of the special protection that equity [fiduciary duty] affords” .348 (2) If the Crown owed a fiduciary duty to the Resident Class, what was the content of that duty? (a) Financial Exploitation – the Crown owed a fiduciary duty to the Residents not to use them to its own financial benefit or profit and not to use Residents’funds to offset the institution’ s own needs A classic example of breach of fiduciary duty is the breach of trust associated with the

214.

promotion of the fiduciary’ s own economic interests at the expense of the beneficiary.349 Moreover, the fiduciary standard of conduct is a high one, and the “ Crown is no ordinary fiduciary” .350

345 346

Frame v. Smith, [1987] 2 S.C.R. 99 at para 62. K.L.B. v. British Columbia, [2003] 2 S.C.R. 403 at para. 38; M.(K.) v. M.(H.)[K.M. v. H.M.], [1992] 3 S.C.R. 6 at para. 74 and 76. 347 K.L.B. v. British Columbia, [1996] B.C.J. No. 3036 (B.C.S.C.) at para. 12. 348 Brown v. Canada, [2010] O.J. No. 2253 (Ont. Sup. Ct.) at para. 137. 349 K.L.B. v. British Columbia, [2003] 2 S.C.R. 403 at para. 49. 350 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2010] M.J. No. 219 (Man. C.A.) at para. 556.

- 72 215. The conduct engaged by the imposition of a fiduciary duty is one of loyalty and “ an

obligation to act in a disinterested manner that puts the recipient’ s interest ahead of all other
351 interests” . One of the core elements of a fiduciary duty is the obligation “ not to profit at the 352 expense of the beneficiary” which is precisely what occurred as between the Crown and the

residents of Huronia. 216. By economically benefitting from the forced labour of residents at Huronia which

contributed to the institution’ s maintenance and operation, the Crown used its “ special opportunity to exercise [its] power or discretion to the detriment of that other person who is accordingly vulnerable to abuse” .353 217. The elements or content of a fiduciary duty is unconcerned with the absence of good faith

or presence of bad faith:
“ The rule of equity, which insists, on those, who by use of a fiduciary position make a profit, being liable to account for that profit, in no way depends on fraud, or absence of bona fides. … The liability arises from the mere fact of a profit having, in the stated circumstances, been made. The profiteer, however honest and well-intentioned cannot 354 escape the risk of being called upon to account.”

218.

Nor is breach of fiduciary duty dependent upon actual harm or loss suffered by the

beneficiary.355 As such, if the Plaintiffs demonstrate that the Crown made a profit at the expense of the resident class members, a breach of fiduciary duty will have been established. (b) Failure to Properly Investigate, Report and Respond to Abuse Allegations – the Defendant owed a fiduciary duty to the Residents to adequately investigate, report and respond to complaints or recommendations concerning abuse of Residents. Canadian courts have determined that while a failure to supervise does not constitute

219.

breach of fiduciary duty (but negligence), “ breach of fiduciary duty is the failure to report

351 352

K.L.B. v. British Columbia, [2003] 2 S.C.R. 403 at para. 49. Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574 (S.C.C.) at para. 147. 353 Frame v. Smith, [1987] 2 S.C.R. 99 at para. 64, relying on Hospital Products Ltd. v. United States Surgical Corporation et al. (1984), 55 A.L.R. 417 (H.C.A.) at 35. 354 Regal (Hastings) Ltd. v. Gulliver et al., [1942] 1 All E.R. 378 (H.L.) at 386, relied upon by Leonard I. Rotman, Fiduciary Law (Toronto: Thomson Carswell, 2005) at 611. 355 Leonard I. Rotman, Fiduciary Law (Toronto: Thomson Carswell, 2005) at. 61, 301, 611.

- 73 properly and investigate the sexual abuse” .356 The caregiver who turns a blind eye to the abuse of a child in its care has been deemed, by the Supreme Court of Canada, to constitute disloyalty central to the breach of fiduciary duty inquiry.357 220. Where vulnerable minors are in the sole care and control of a provincially managed

institution, there is no doubt that an important component of that fiduciary relationship is that the Crown is obliged to ensure that reasonable care is taken of its charges, physically and emotionally, to protect them from intentional torts. Part of the Crown’ s fiduciary duty was to ensure the residents’safety at the institution. 358 221. The Crown’ s breaches in this respect have been further particularized supra at paragraphs

166 through 203. (c) 222. The Reverse Onus of Proving Breach of Fiduciary Duty Given the relative position of beneficiaries vis-à-vis their fiduciaries and the latter’ s

ability to conceal a breach of duty by virtue of their control over beneficiaries’affairs, the fiduciary concept eases the burden of proof for beneficiaries:
“ Beneficiaries are not required to establish their claims on a balance of probabilities, as would be the case, for example, with allegations of breach of contract. Rather, beneficiaries need only establish prima facie interferences of fiduciary obligations and their breach. The fiduciary concept then imposes a reverse onus that shifts the burden 359 onto the fiduciaries to disprove the beneficiaries’allegations.”

223.

In this way, once the Plaintiffs satisfy the threshold of establishing a prima facie

inference and breach of fiduciary duty, the burden of proof shifts to the Crown who must disprove the prima facie inference in order to be absolved of liability.360

356 357

F.S.M. v. Clarke, [1999] 11 W.W.R. 301 (B.C.S.C.) at para. 191. K.L.B. v. British Columbia, [2003] 2 S.C.R. 403 at para. 49. 358 Seed v. Ontario 2012 ONSC 2681 (S.C.J.), at paras. 103 –104. 359 Leonard I. Rotman, Fiduciary Law (Toronto: Thomson Carswell, 2005) at 614; Stewart v. Canadian Broadcasting Corp. (1997), 150 D.L.R. (4th) 24 (Ont. Gen. Div.). 360 Leonard I. Rotman, Fiduciary Law (Toronto: Thomson Carswell, 2005) at 616.

- 74 224. ‘ Disproving’ the beneficiaries’ allegations means more than demonstrating that a

transaction was fair or that the beneficiaries might have also benefitted:
“ Fiduciaries may also not refute prima facie inferences of breach by demonstrating the beneficiaries’ inability to obtain benefit from the impugned transactions or that the beneficiaries’loss would have occurred notwithstanding the breach, a principle generally referred to as ‘ inevitability of loss’ ” .361

225.

The burden therefore lies on the Crown to positively prove it adhered to a fiduciary

standard in its dealings with the former residents. (3) (a) Did the Defendant breach its fiduciary duty? Financial Exploitation – the Defendant breached its fiduciary duty by failing to pay Residents market wages (or at all) for their work at Huronia and by misappropriating Residents’monies to be diverted against the cost of running the institution One of Crown’ s experts specifically admits and acknowledges that: “ one of the goals of

226.

resident labour was to reduce institutional costs and the burden on the taxpayer.362 The plaintiffs’ expert confirms this view, opining that:
“ Training programs designed to teach useful or marketable skills at reduced wages or without pay may be appropriate in some cases. … However, these arrangements are always part of structured programs that have other components, such as related classroom instruction, are time limited have structured supervision and evaluation and have criteria for successful completion. None of these characteristics describe the use of resident labour at Huronia. … I also disagree with the notion that working in these unpaid jobs helped develop skills that helped residents achieve community placement. The history of unpaid institutional labour suggests exactly the opposite. Institutions that were dependent upon unpaid labour were in a conflict of interest that often led to 363 reluctance to place their most productive workers in the community.”

227.

At Huronia, many of the residents were required to perform various forms of labour. One

of the clear goals of resident labour was to reduce institutional costs and the burden on the taxpayer.364 Many residents did similar jobs to those of paid staff for long hours and received

361 362

Leonard I. Rotman, Fiduciary Law (Toronto: Thomson Carswell, 2005) at 617. Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 95. 363 Professor R.J. Sobsey, Reply Report to Dr. Simmons, May 21, 2013, pp. 26 –28. 364 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 95.

- 75 little or no compensation for that work. Prior to 1970, residents received no pay whatsoever for their work. 228. A memorandum dated July 21, 1969 from Dr. S.J. Koegler, Director, Treatment and

Training Services to Eugene Moran, Director, Training and Rehabilitation Unit stated that, “ if the residents were paid 10¢ per hour for a 40-hour week during their training period, therefore, a
365 50-week payroll would require approximately $33,400.”

229.

The Adult Training Unit was a unit of residents who were trained to handle a variety of

sub-contracts and work training in the farm, in food services, in the laundry, in domestic services and in various services throughout the hospital school.366 Residents in the Adult Training Unit were provided with a residential setting and vocational experience.367 There were 350 residents in the Adult Training Unit in 1970.368 The Adult Training Unit was established in 1968 and was in effect until 1976.369 The residents in the Adult Training Unit worked in the laundry, food services, farm, domestic services, in addition to Orillia Services.370 Orillia Services was a workshop location operated by Huronia in Orillia.371 The resident population in the Adult Training Unit varied from 300 to 386 between 1969 and 1976.372 230. A document entitled “ Housekeeping Department Garbage” by C.F. Rowell, Assistant

Housekeeper dated October 28, 1970 states, “ the residents, usually four in number are kept profitably employed and may usually be depended upon to do a good job... Replacement of residents by permanent staff employees would require at least two men plus coverage by two
373 more for week-ends.”

365

RCR000363, Memorandum from Dr. S.J. Koegler, Director, Treatment and Training Services to Eugene Moran, Director, Training and Rehabilitation Unit (21 July 1969). 366 Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#99. 367 Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#100. 368 Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#100; CR086105, What Its [sic] All About The Adult Training Unit OHS Orillia Annual Progress Report, March 1977. 369 Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#101 and 104. 370 Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#102. 371 Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#102. 372 Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#104. 373 CR180993, Housekeeping Department Garbage by C.F. Rowell, Assistant Housekeeper (28 October 1970).

- 76 231. The 1971 government commissioned Williston Report itself found that residents were
374

organized into work gangs to perform a number of routine tasks necessary for the operation of the institution. The Williston Report also indicated that the range of pay for residents’work was in the range of 4 cents to 8 cents per hour.375 At the same time, Ontario’ s minimum wage was $1.30 per hour. In other words, Huronia residents were paid roughly 4% to 5% of the provincial minimum wage. 232. In 1972, the Assistant Administrator at Huronia reported, “ the farm operation although

providing a limited training program still does supply services to the Hospital which would be necessary under a purchased services program and I feel would increase the cost materially if the
376 Farm was phased out.” A 1979 document on long-range planning at Huronia again reveals

mixed motives: “ Farm buildings are required so long as the major pig operation is cost/efficient
377 and provides training opportunities for residents.”

233.

By October 1975, there were 454 residents involved in “ vocational training” , including

prevocational training and workstations in industry.378 Certain tasks involved in garbage collection were described as “ training”opportunities. However, when the residents involved in garbage collection were removed, they were replaced by 4 employees to carry out the work instead.379 234. A memorandum dated January 5, 1976 from T.M. Hedley, Consultant, Laundry & Linen

Service, M.R. Residential & Consulting Services Branch to R.W. Blakeman, Administrator, Huronia Regional Centre stated, “ Re: Laundry Training of Residents I believe there is an opportunity to improve the training of residents in the laundry by developing a team that will

374

Plaintiff’ s Request to Admit dated January 16, 2012, Q. 51, Amended Trial Record, Tab 8; Defendant’ s Response to Request to Admit dated January 31, 2012, Q. 51, Amended Trial Record, Tab 9; CR000967/55, 57, 64, 116, 121, Walter B. Williston, Q.C., Arrangements for the care and supervision of mentally retarded persons in Ontario (1971). 375 Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 89. 376 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 97; CR062929/22, Memorandum from J.C. Ferguson, Assistant Administrator to Mr. R. J. Wilson, Administrator (3 March 1972). 377 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 97; CR006660, Memorandum to Dr. R.A. Farmer (April 1979). 378 Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#40. 379 Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#52; CR019342, Public Health Committee Meeting (22 February 1973).

- 77 operate one of the flatwork ironers... I would expect that the members of the team would be paid
380 at about the minimum salary since they would replace three laundry workers.”

235.

A report from 1977 indicates that residents in the Adult Training Unit were paid 10 cents

per day as a training allowance.381 Some residents in the Adult Training Unit were sent into town during the day to do domestic work in people’ s house, which was paid at the rate of $3.00 to $5.00 per day.382 236. A memorandum from D. Abramowitz, Manager, Employee Relations, Personnel Services

Branch to Dr. R.A. Farmer, General Manager, M.R. Facility Services Division entitled “ Union Working Conditions Demands”dated January 20, 1977 states:
“ The claim is that our residents are performing work normally assigned to classes in the bargaining unit without (a) receiving the appropriate bargaining unit compensation, (b) staff who supervise the work trained or paid to supervise such residents. The example cited for our Ministry is that there are ten residents at Huronia, each assigned to half an 8:00 to 4:30 day’ s work in the laundry (ie. the equivalent of one full time staff): it was alleged that the counsellors did not believe this function was part of any developmental program for any of the ten residents so employed. Is there a divisional policy in this regard, and if so, what? I am forwarding a copy of this to Huronia for a specific response to this allegation as one of the union’ s negotiating team is a Huronia Residential Counsellor, who has one or two of his residents assigned to the laundry (½ a day a week 383 each) and states it is not part of any developmental program to his knowledge.”

237.

In the late 1970s, the union asserted that the majority of problems in institutions were due

to government cutbacks, and that residents were used to make up understaffing, particularly in unskilled areas such as the laundry and grounds-keeping.384 According to the union, “ patients

380

RCR016577, Memorandum from T.M. Hedley, Consultant, Laundry & Linen Service, M.R. Residential & Consulting Services Branch to R.W. Blakeman, Administrator, Huronia Regional Centre (5 January 1976). 381 Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#107 and 108; CR086105, What Its [sic] All About The Adult Training Unit OHS Orillia Annual Progress Report, March 1977. 382 Defendant’ s Answers to Written Interrogatories dated February 1, 2013, Q#109; CR086105, What Its [sic] All About The Adult Training Unit OHS Orillia Annual Progress Report, March 1977. 383 CR032212, Memorandum from D. Abramowitz, Manager, Employee Relations, Personnel Services Branch to Dr. R.A. Farmer, General Manager, M.R. Facility Services Division (20 January 1977). 384 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 97; CR032217/17-18, circa 1976.

- 78 and residents are... paid as little as ten cents an hour to assist regular staff at their duties, or even
385 perform duties that should be performed by regular staff.”

238.

According to a report from the manager of MCSS’ s employee relations branch, the union

claimed that ten residents working at Huronia’ s laundry were “ not part of any developmental
386 program.”

239.

A memorandum from B. Lovering, Regional Administrator, Adult Occupational Centre

to R.A. Farmer, General Manager, M.R. Facility Services Division dated July 7, 1980 states, “ Huronia Regional Centre currently provides laundry services to three other mental retardation facilities in the area – namely, Adult Occupational Centre, Muskoka Centre and Pine Ridge – in addition to small correctional facilities –The Barrie Jail and Camp Hillsdale... H.R.C. presently employees thirty-three (33) staff in its laundry service in addition to up to 26 residents. The residents are employed in a number of areas including sorting of soiled laundry and/or the towel387 folding machine.”

240.

By 1986, Ontario’ s Ministry of Community and Social Services estimated that the cost of

replacing the unpaid labour force of institutional residents at $32,000.00 per worker, per year, of which $25,000.00 was listed as the salary/wage component and the rest as benefits, taxes, pension and administrative costs.388 241. The Minutes of Public Health Meeting dated December 10, 1989 states, “ the problem of

patient workers was again raised. It was felt that except for specific training programs they should not be used in food services. However, with present staff complement the resident worker had to be used,” and “ the resident workers in the laundry continue to be a problem, they are

385

Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 97. In 1971, Walter Williston noted that residents of Ontario's institutions were "paid minimal and completely unrealistic wages for their work— from 4 cents to 8 cents an hour. . .On leaving the institution they will have little, if any, appreciation of the value of money, having had no practice in its use." CR032217, Complement. 386 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, pp. 97-98; CR032212, Memorandum From D. Abramowitz, Manager, Employee Relations to Dr. R.A. Farmer, General Manager, M.R. Facility Services Division (20 January 1977). 387 CR010703, Memorandum from B. Lovering, Regional Administrator, Adult Occupational Centre to R.A. Farmer, General Manager, M.R. Facility Services Division (7 July 1980). 388 CR003969, Application and Report to Management Board (February 1985).

- 79 profoundly retarded, have little supervision and their sanitary standards are dangerously low. Although the laundry is supposed to be a training centre it is being used as a punishment for
389 residents.”

242.

Some residents appear to have been unpaid or paid only token amounts for some odd 20

to 30 years for the work they performed for the benefit of the institution:
“ even if they had paid reasonable room and board to the institution, they would have accumulated significant savings over these years. In addition, they would have been 390 eligible for pensions when they retired.”

243.

Over the class period, it is clear in the earlier years especially that residents carried out a

major portion of the labour required to run the institution:
“ An inspection report from 1946 reports the laundry had 14 paid staff and 44 unpaid resident workers. The paint shop had 3 paid staff and 16 unpaid resident workers. The sewing room had 2 paid staff and 19 to 22 unpaid resident workers. The mending room had 1 paid staff and 15 unpaid resident workers. … . Minutes of the Huronia Public Health Committee in 1969 report that food service could not function without resident workers. … The vocational services 1986/1987 business plan indicated 320 working 391 residents and average rate of pay was 35 cents per hour.”

244.

In these ways, the Crown benefitted economically to the corresponding deprivation of the

residents. For example, in as late as 1986, the Crown estimated that the cost of replacing the unpaid labour force of institutional residents was $32,000.00 per worker, per annum, $25,000.00 of which was listed as the salary/wage component, the rest as benefits, pension and taxes.392 245. A May 1973 AAMD guideline clarified the proper distinction between work and training

defined ‘ work’as “ any activity, or series of related activities, which benefits the economy of the institution” . An economic benefit was described at the performance of any task that reduces the

389 390

CR019405, Minutes of Public Health Meeting (10 December 1989). Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 90. 391 Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, pp. 93 –96. 392 Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 91; CR003969/1, Application and Report to Management Board (February 1985).

- 80 need for other paid staff which produces income in excess of the costs of production.393 This is precisely what occurred at Huronia – work versus genuine training – as the Crown benefitted financially from the residents’activities in this regard. 246. The failure to pay residents an appropriate wage or the failure to pay residents at all,

clearly created a significant economic benefit to the Crown for which the residents were consequently denied. This benefit should be disgorged by the Crown. 247. The Crown itself has admitted the following with respect to resident workers and the

economic benefit deprived from their respective labour contributions: (a) (b) (c) (d) (e) 248.
residents did repetitive work in workshops (ie. putting screws in packages);394 residents were involved in mail delivery and landscaping;395 resident work crews assisted in food deliveries and tasks around the facility;396 residents performed snow removal;397 and residents worked in the kitchen. 398
399

The Crown admits that residents were not paid a minimum wage
400

but either paid

nothing or some small amount determined on an ad hoc basis. stipend below the provincial minimum wage.401

The Crown has admitted that

resident workers in the kitchen and the farm and car washing program all received a small

393

Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 89. 394 Transcript of the examination for discovery of B. Low, February 22, 2012, Q# 505, Line# 2-8; Transcript of the examination for discovery of B. Low, April 23, 2012, Q# 2004, Line# 4. 395 Transcript of the examination for discovery of B. Low, February 22, 2012, Q# 488, Line# 8-11. 396 Transcript of the examination for discovery of B. Low, February 21, 2012, Q# 431, Line# 2-8. 397 Transcript of the examination for discovery of B. Low, February 22, 2012, Q# 507, Line# 20. 398 Crown’ s Answers to Undertaking from Examination of B. Low, April 23, 2012 Q#1952-1954. 399 Transcript of the examination for discovery of B. Low, February 22, 2012, Q# 483, Line# 16. 400 Transcript of the examination for discovery of B. Low, February 22, 2012, Q# 484, Line# 20-22. 401 Transcript of the examination for discovery of B. Low, April 23, 2012, Q# 1952, Line# 8, Q#1974, Line #17; Q# 1963m Line 10; Q.#1980, Line #3.

- 81 249. A 1994/95 audit of Schedule I and II facilities revealed that these facilities continued to

show a pattern of residents’personal funds being misappropriated and inappropriately used for the staff’ s benefit.402 250. 251. Further particulars of these problems will be provided at trial. In these ways, the Crown’ s conduct carried with it the requisite “ stench of dishonesty”

beyond what is legally characterized as either carelessness or negligence.403 The plaintiffs do not seek to hold the Crown to the standard of acting in the Resident Class’“ best interests”but do request that this court condemn the Crown’ s specific “ conduct that cause[d] harm to children in a manner involving disloyalty, self-interest or abuse of power” .404 Common Issue C: If the answer to either common issues (a) or (b) is “ yes” , can the court make an aggregate assessment of monetary relief as part of the common trial? (1) 252. The Legal Principles Governing Aggregate Awards of Monetary Relief The plaintiffs will seek an aggregate assessment of monetary relief at trial pursuant to

section 23 and 24 of the Class Proceedings Act. An aggregate assessment of monetary relief in this case provides the only efficient method of assessing damages for the common impacts of living in a substandard institutional environment. The total aggregate award can be properly calculated based on expert evidence establishing: (a) (b) (c) (d)
the overall environment at Huronia was inherently toxic; all former residents were to some degree exposed to risk and harm; all persons who resided in this environment can be reasonably expected to have suffered damage; the savings which enured to the benefit of the defendant (and no corresponding benefit to the class) as a result of the forced upaid labour of residents at Huronia; and

402

Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 89; CR090035, Memorandum from Mike Livesey to Mike Cillis (10 February 1995). 403 F.S.M. v. Clarke, [1999] 11 W.W.R. 301 (B.C.S.C.) at para. 168; C.A. v. Critchley (1998), 166 D.L.R. (4th) 475 (B.C.C.A.) at paras. 78 and 151. 404 E.D.G. v. Hammer, [2003] 2 S.C.R. 459 52 at para. 23.

- 82 (e) 253.
the savings from the chronic understaffing of Huronia.

The approach to monetary relief advanced by the plaintiffs is consistent with the liberal

and purposive approach to the CPA endorsed by both the Court of Appeal for Ontario and the Supreme Court of Canada.405 254. The authority to make an aggregate assessment of monetary relief is governed by section

24(1) of the CPA, which provides as follows:
Aggregate assessment of monetary relief 24. (1) the court may determine the aggregate or a part of a defendant’ s liability to class members and give judgment accordingly where, (a) (b) monetary relief is claimed on behalf of some or all class members; no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant’ s monetary liability; and the aggregate or a part of the defendant’ s liability to some or all class members can reasonably be determined without proof by individual class members.406

(c)

255.

Section 23 of the CPA permits the use of statistical evidence for the purposes of

determining the amount or distribution of a monetary award made pursuant to section 24, without proof of individual claims:
Statistical Evidence 23.(1) For the purposes of determining issues relating to the amount or distribution of a monetary award under this Act, the court may admit as evidence statistical information that would not otherwise be admissible as evidence, including information derived from sampling, if the information was compiled in

405

Markson v. MBNA Canada Bank,[2007] O.J. No. 1684 (Ont. C.A.) at para. 48, leave to appeal to the S.C.C. ref’ d [2007] S.C.C.A. No. 346; Cassano v. Toronto-Dominion Bank, [2007] O.J. No. 4406 (Ont. C.A.) at para. 50, leave to appeal to the S.C.C. refused, [2008] S.C.C.A. No. 15; St. Lawrence Cement Inc. v. Barrette, [2008] 3 S.C.R. 392 at para. 107; Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St-Ferdinand, [1996] 3 S.C.R. 211 at para. 134. 406 Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 24(1)(2)(3), Schedule B, Tab B(7) of the Plaintiffs’Factum.

- 83 accordance with principles that are generally accepted by experts in the field of statistics. 407

256.

The Ontario Court of Appeal has adopted a liberal and purposive approach towards the

use of aggregate assessments of monetary relief to reflect the clear wording and the intent of the CPA, and to avoid the “ potentially unconscionable result of a wrong eluding an effective remedy.” The presence of a finding of (a) liability and (b) an entitlement to a remedy is sufficient to trigger the application of sections 23 and 24 of the CPA.408 257. Therefore, if the plaintiffs obtain judgment on common issues 4(a) and 4(b), the plaintiffs

will have established liability and an entitlement to a remedy, triggering the application of sections 23 and 24 pursuant to common issue 4(c). As in the Court of Appeal’ s decision in Markson v. MBNA Canada Bank, once it is shown that the Crown committed tortious conduct, “ the only serious issue is how many members of the class actually suffered an economic loss. This issue can be addressed by sections 23 and 24” .409 258. In Markson, the class members alleged they had been charged illegal interest on cash

advances in violation of s. 347(1)(b) of the Criminal Code. The difficulty in that case was that the recordkeeping of the bank, the sheer number of accounts, and the small amount of damages per class member, made it virtually impossible to determine the precise amount each class member may have been overcharged, or even which class members had been overcharged at all. 259. Justice Rosenberg’ s decision endorsed the use of an aggregate assessment of monetary

relief assessment using statistical evidence, notwithstanding that some class members who did not actually suffer damage may share in the award. According to Justice Rosenberg J.A., that

407

408

409

Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 23, Schedule B, Tab B(7) of the Plaintiffs’Factum; Wilkins v. Rogers Communications Inc., [2008] O.J. No. 4381 (Ont. Sup. Ct.) at paras. 55-56. Markson v. MBNA Canada Bank,[2007] O.J. No. 1684 (Ont. C.A.) at paras. 49 and 55, leave to appeal to the S.C.C. ref’ d, [2007] S.C.C.A. No. 346. Markson v. MBNA Canada Bank, [2007] O.J. No. 1684 (Ont. C.A.) at para. 55, leave to appeal to the S.C.C. ref’ d, [2007] S.C.C.A. No. 346.

- 84 was “ exactly the result contemplated by s. 24(2) and (3) because “ it would be impractical or inefficient to identify the class members entitled to share in the award'". 410 260. It is well-settled pursuant to both the CPA and its attendant jurisprudence that aggregate

awards of monetary relief are appropriate “ notwithstanding that identifying the individual class members entitled to damages and determining the amount cannot be done except on a case-bycase basis” .411 Subsection 24(3) contemplates that, while class members’ proof of and entitlement to relief may differ, the court must nevertheless consider whether it would be impractical or inefficient to assess relief other than in the aggregate:
24(3) In deciding to make an order under subection (2), the court shall consider whether it would be impractical or inefficient to identify the class members entitled to share in the award or to determine the exact shares that should be allocated to individual class members.412

261.

In Cassano, Chief Justice Winkler also endorsed an aggregate assessment of monetary Consistent with the reasoning in Markson, Winkler C.J.O.

relief which award could be shared on an average or proportional basis to avoid the inefficiencies of individual determinations.

emphasized the need for aggregate assessments in the context of class actions to promote behaviour modification and access to justice, as was intended by the drafters. 413 262. The CPA provides a host of tools for the calculation and distribution of damage awards.

The court has specifically rejected defendants’complaints that aggregate monetary relief may overcompensate some including those who have not suffered damage, or under compensate others, as this was specifically contemplated by the Act. Chief Justice Winkler states: "[t]he CPA anticipates such a problem." The court has wide-ranging powers to:
(a) measure relief as the value of the defendant's liability [s. 24 (1)];

410

Markson v. MBNA Canada Bank, [2007] O.J. No. 1684 (Ont. C.A.) at para. 49, leave to appeal to the S.C.C. ref’ d, [2007] S.C.C.A. No. 346. 411 Markson v. MBNA Canada Bank,[2007] O.J. No. 1684 (Ont. C.A.) at para. 48, leave to appeal to the S.C.C. ref’ d, [2007] S.C.C.A. No. 346. 412 Class Proceedings Act, 1992, S.O. 1992, c. 6 s. 24, Schedule B, Tab B(7) of the Plaintiffs’Factum; Markson v. MBNA Canada Bank, [2007] O.J. No. 1684 (Ont. C.A.) at paras. 38, 42-53, leave to appeal to the S.C.C. ref’ d [2007] S.C.C.A. No. 346. 413 Cassano v. Toronto Dominion Bank, [2007] O.J. No. 4406 (Ont. C.A.) at paras. 49-51, leave to appeal to the S.C.C refused, [2008] S.C.C.A. No. 15; Lee Valley Tools Ltd. v. Canada Post Corp., [2007] O.J. No. 4942 (S.C.J.) at para. 47.

- 85 (b) (c) (d) (e) (f) estimate a global award based on statistical evidence and sampling [s. 23]; order average and proportionate distribution, particularly where it is impractical or inefficient to determine exact shares to be allocated [ss. 24(2)-(10), 26]; distribute relief to class members based on standardized procedures, including sampling [ss. 24(4)-(6)]; consider individual claims, supplementary to aggregate relief, to provide additional compensation where warranted [ss.25, 26]; and grant a cy-pres award, even though it would only benefit persons who are not class members [s.26(4)-(5)]. 414

263.

Both the Ontario Law Reform Commission and the Court of Appeal for Ontario have

confirmed that a global aggregate award of monetary relief to the class as a whole is appropriate even where “ it may be that in the result some class members who did not actually suffer a loss
415 will receive a share of the award.” Such a result is a lesser evil than the denial of global

monetary relief to the class at large where it is clear that some have been wronged and suffered damages. A fortiori where the class in question is, by its very nature, inherently vulnerable. The possibility of such an outcome creates no questions of law or fact beyond the assessment of monetary relief. 264. The Supreme Court of Canada has endorsed similar collective recovery in the St.

Lawrence Cement and St. Ferdinand decisions. In St. Ferdinand, the Supreme Court of Canada approved an award for moral injury to mentally disabled inpatients resulting from changes in care and services when hospital employees participated in illegal strikes.416 265. Similarly, in St. Lawrence Cement, the Supreme Court of Canada confirmed the propriety

of an award for abnormal annoyances to class members living in the neighbourhood of a cement plant. In both St. Ferdinand and St. Lawrence Cement, the court acknowledged that the nature of the injuries claimed by class members made it difficult to individually quantify relief. Still, and

414

Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 23-26, Schedule B, Tab B(7) of the Plaintiffs’Factum; Gilbert v. Canadian Imperial Bank of Commerce, [2004] O.J. No. 4260 (S.C.J.), at para. 15; Markson v. MBNA Canada Bank, [2007], O.J. No. 1684 (Ont. C.A.) at paras. 42-55, leave to appeal to the S.C.C. ref’ d, [2007] S.C.C.A. No. 346. 415 Ontario Law Reform Commission, Report of Class Actions (Toronto: Ministry of the Attorney General, 1982), 554-556; Markson v. MBNA Canada Bank, [2007] O.J. No. 1684 (Ont. C.A.) at paras. 42-55, leave to appeal to the S.C.C. ref’ d, [2007] S.C.C.A. No. 346. 416 Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St-Ferdinand, [1996] 3 S.C.R. 211 at paras. 15, 85-86.

- 86 perhaps as a result, the Supreme Court of Canada in both cases held that the use of average amounts to compensate for the general experiences of class members was both reasonable and appropriate.417 266. In St. Ferdinand, the measure of relief was calculated as a fixed amount for each class

member ($1,750) for harm suffered as a result of a 33 day illegal strike. The presumption of common injury and the quantification of relief were based primarily on evidence of demographics and factual background provided by witnesses, and that of experts who testified about the expected psychological experience of class members. No class members testified and the court declined to review their medical records:418
“ The Court is asked to proceed by groups, and any refusal to do so would constitute a denial of justice. Whether or not we agree, the legislator intended the Court to play a new role in the exercise of collective justice. This role translates into controlling the remedy, controlling the proceedings, exercising discretion with regard to the solutions and method 419 of enforcement… ”

267.

While the normal evidentiary rules apply to class proceedings, the Supreme Court of

Canada has sanctioned the approach to damages assessments urged by the plaintiffs which relies on presumptions of fact to prove that similar injuries have been suffered:
“ Rather, he [the trial judge] sought to find an element of damage common to everyone, and only after reviewing the evidence as a whole did he find enough evidence to be able to infer that there were serious, precise and concordant presumptions that all the patients had at least suffered some discomfort. … proof by presumptions was the most 420 appropriate method of proof for establishing the existence of such prejudice.”

268.

Importantly, the Supreme Court of Canada has also confirmed that in a class proceeding:
a“ plaintiff is not required to prove that each of the members [of the class] sustained exactly the same injury. .. This was what happened in St. Lawrence Cement. While the injury sustained by the members of the group in question varied in intensity, this Court

417 418

St. Lawrence Cement Inc. v. Barrette, [2008] 3 S.C.R. 392 at para. 116. Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St-Ferdinand, [1996] 3 S.C.R. 211 at paras. 11, 15, 50-51. 419 Quebec (Public Curator) v. Syndicat national des employes de L’Hopital St-Ferdinand, [1989] R.J.Q. 359 (Qc. Sup. Ct.) at para. 63. 420 Quebec (Public Curator) v. Syndicat national des employés de l’ hôpital St-Ferdinand, [1996] 3 S.C.R. 211 at paras. 39, 41, 42.

- 87 confirmed that it could be inferred that each member had sustained injury based on the similarities between them.”421

269.

The question therefore, is not whether every member of the class suffered the same

injury, but whether there is probative evidence before the court that the class as a whole suffered a loss or injury. 270. Therefore, the court can draw upon the evidence a presumption of fact that members of

the group have suffered a similar injury. Additionally, the court may then proceed to divide the groups into subgroups, each of which are comprised of members who have suffered a similar injury. Courts have recognized that the use of average amounts may be appropriate because “ where all members of the group have suffered the same kind of prejudice, the prejudice can be assessed on the basis of an average without increasing the debtor’ s liability” .422 271. As recently determined by Chief Justice Winkler in Fulawka, section 24(1) of the CPA

permits the aggregate of a defendant’ s liability to be reasonably determined without proof by individual class members:
“ This provision is directed at those situations where the monetary liability to some or all of the class is ascertainable on a global basis, and is not contingent on proof from individual class members as to the quantum of monetary relief owed to them. In other words, it is a figure arrived at through an aggregate assessment of global damages, as opposed to through an aggregation of individual claims requiring proof from individual class members. I would describe the latter calculation as a “ bottom-up”approach whereas 423 the statute envisages that the assessment under s. 24(1) be “ top down” .”

272.

This is precisely the type of case that framers of section 24 had in mind. This court need

only apply St. Ferdinand and St. Lawrence Cement to the facts at hand.

421 422

Bou Malhab v. Diffusion Métromédia CMR Inc., [2011] 1 S.C.R. 214 at para. 54. St. Lawrence Cement Inc. v. Barrette, [2008] 3 S.C.R. 392 No. 65 at paras. 108– 109, 114– 116; Quebec (Public Curator) v. Syndicat national des employés de l’ hôpital St-Ferdinand, [1996] 3 S.C.R. 211 at para. 85. 423 Fulawka v. Bank of Nova Scotia, [2012] O.J. No. 2885 (Ont. C.A.) at para. 126.

- 88 273. In Cloud v. Canada, the Ontario Court of Appeal expressly endorsed the use of section

24 in historical institutional abuse cases alleging negligence and breach of fiduciary duty.424 274. Based on this appellate jurisprudence concerning section 24, the clear terms of the CPA

and the wide exercise discretion to fashion remedies to breaches of equitable duties,425 it is clear that this court has all the authority required to make an aggregate award of damages in this case. (2) The Decisions in Quebec (Public Curator) v. Sundicat national des employes de l’ hopital St. Ferdinand –Aggregate Damages Awarded for Prejudice To All Hospital Patients (Sustained by the Supreme Court of Canada). 275. Trial Decision. As a result of an illegal strike, 703 patients of a hospital for disabled

persons were deprived of certain care and services over the course of 33 days. The plaintiff class sought compensatory damages on a global basis which were caused by the loss of access to care and services normally provided. None of the hospital residents testified at the trial. 276. On the basis of expert evidence, the trial judge concluded that all class members (or

residents at the time) suffered at least some moral prejudice or discomfort of some sort, manifesting itself as minor psychological distress. As a result, aggregate damages of over $12 million were awarded to the class, which worked out to $1,750 per class member damages for the “ feelings”perceived by the individual subjected to conditions that occur with its physical or
426 psychological welfare.”

277.

Court of Appeal Sustains Trial Judgment. The Quebec Court of Appeal sanctioned the

trial judge’ s approach and found that it was permissible to apply a legal presumption of similarity of prejudice for the benefit of a group. The Quebec Court of Appeal also rejected the defendant’ s argument that individual patient/resident testimony was essential to establish the existence of moral prejudice or discomfort. There was more than sufficient evidence to establish

424

Cloud v. Canada (Attorney General), [2004] O.J. No. 4924 (Ont. C.A.) at para. 70, leave to appeal to the S.C.C. ref’ d, [2005] S.C.C.A. No. 346. 425 Frame v. Smith, [1987] 2 S.C.R. 99 at 72. 426 Quebec (Public Curator) v. Syndicat national des employes de L’Hopital St-Ferdinand, [1989] J.Q. No. 3402 (Qc. Sup. Ct.) at para. 220.

- 89 that all of the patients were deprived of care, made necessary by their particular situations, which constituted recognizable prejudice both foreseeable and certain. 427 278. Supreme Court of Canada. In dismissing the appeal, the Supreme Court of Canada found

that the trial judge permissibly found an element of damage common to the entire class. The trial judge did not conclude that each class member suffered the same prejudice but upon review of the evidence, the trial court was able to properly infer that there were serious, precise and concordant presumptions that all patients had at least suffered discomfort.428 (3) The Decisions in Barrette v. St. Lawrence Cement –Aggregate Damages Awarded For Interference With Use and Enjoyment of Lands Due to Cement Plant Operations 279. The Trial Decision. The operation of a cement plan gave rise to a class proceeding on

behalf of neighbours who complained about problems with dust, odours and noise emanating from the plant. As the evidence showed that there was a common injury, but that it varied in intensity from one zone to another and from year to year, the court awarded damages that varied from geographical zone to zone. The trial judge devised an innovative claims procedure to provide average awards. Justice Dutil set amounts for geographical zones, according to proximity to the cement plant, and in temporal blocks, which together formed a template for each class member's claim (to a maximum of approximately $16,000).429 280. Supreme Court of Canada Reinstates Trial Judgment. While the Quebec Court of Appeal

varied the damages award, the Supreme Court of Canada restored the trial judge’ s assessment. Given the trial judge’ s discretion and the difficulty of assessing environmental problems and annoyances, Justice Dutil’ s use of average amounts in determining the quantum of damages was deemed reasonable and appropriate in the circumstances. As the defendant was not able to show its total liability at large has been increased as a result, and there was no indication that the amount awarded was based on a wholly erroneous estimate of the injury, the damages award was reinstated.
427 428

Quebec (Public Curator) v. Syndicat national des employes de L’Hopital St-Ferdinand, [1996] 3 S.C.R. 211 at paras. 40-42.. Quebec (Public Curator) v. Syndicat national des employes de L’Hopital St-Ferdinand, [1994] J.Q. No. 848 (Qc. C.A.) at para. 28. 429 St. Lawrence Cement Inc. v. Barrette, [2008] 3 S.C.R. 392, at para. 111; Barrette c. Ciment du Saint- Laurent Inc., [2003] J.Q. No. 5273 (QC. Sup. Ct.) at paras. 422-423.

- 90 281. The St. Ferdinand and St. Lawrence Cement decisions provide a principled roadmap

which can be used to assess aggregate damages in this case on behalf of former Huronia residents: (a) (b) (c) (d) (e) (f) 282.
the court can draw a presumption of fact that class members suffered like injuries; any absence of injury for individual members may be taken into account in the global assessment, but it is not fatal to the class proceeding; the experience of an individual class member is not necessarily the "type" or "model" for the class as a whole; expert evidence of expected injury can assist in evaluating and quantifying relief; average awards, and simplified distribution procedures, can be used to overcome factual and practical difficulties; and the court has considerable discretion in making an assessment for relief in the context of a class action. 430

In both decisions, the Supreme Court of Canada acknowledged that the nature of the

injuries claimed by class members made it difficult to quantify relief. Still, and perhaps as a result, the court in both cases held that the use of average amounts to compensate for the general experiences of class members was reasonable and appropriate. The same is true in this case. (4) The Plaintiffs’Expert Evidence On Ability to Make Aggregate Award of Monetary Relief to All Residents –Presumption of Similar Injuries 283. The damages evidence the plaintiffs will tender and rely upon will be of mental health

experts regarding the common effects of institutionalization. As Justice Cullity found on the certification motion, because the common issues are based on the manner in which HRC was maintained and administered by the Crown, without an attempt to differentiate between the treatment and claims of individuals resident there, an aggregate assessment of damages is

430

St. Lawrence Cement Inc. v. Barrette, [2008] 3 S.C.R. 392 at paras. 108, 111-112, 115-116; Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St-Ferdinand, [1996] 3 S.C.R. 211 at paras. 11, 15, 37-42, 48, 52-53, 85-86; Québec (Curateur public) c. Syndicat national des employés del'Hôpital St-Ferdinand, [1989] J.Q. No. 3402 (Qc. Sup. Ct.) at paras. 145, 260-262, 267, 271.

- 91 possible.431 The presence of a finding of: (a) potential liability; and (b) an entitlement to a remedy is sufficient to trigger the application of sections 23 and 24 of the CPA. 284. In Cloud432, the Court of Appeal for Ontario stated that an aggregate assessment of

damages for breach of fiduciary duty and negligence was possible in a case with similar facts. Therefore, if the plaintiffs obtain judgment on common issues 4(a) and 4(b), they will have established potential liability and an entitlement to a remedy, triggering the application of sections 23 and 24. The Supreme Court of Canada has already sanctioned and approved this approach to aggregate assessment of monetary relief. Presumptions of fact can be used to prove that similar harms have been suffered. 433 285. Similarly, the plaintiffs will ask the trial court, based on expert and factual evidence from

former residents, to draw from that evidence a presumption of fact that members of this class suffered a similar injury. The means of distribution of such an aggregate award of monetary relief would be based upon the notion of a “ common experience payment”made to all persons who resided at Huronia, irrespective of their individual experiences, to be made on a summary basis, with the amount to be based upon the total number of years of class member residence at Huronia. Such an award is properly derived from the evidence that:
“ … it is clear that many, probably most, residents experienced physical or sexual abuse in varying degrees of frequency and severity, and all of the residents lived under the threat 434 of this kind of abuse.”

286.

To support their position on an aggregate assessment of damages, the plaintiffs intend to

tender the evidence of Drs. Sobsey, Wolfe, Jaffe and Robinson at trial. In accordance with the Supreme Court of Canada’ s directions in St. Ferdinand, and St. Lawrence Cement this expert evidence will permit the trial judge to permissibly infer that there were serious, precise and concordant presumptions that all former residents suffered some harm as a result of their

431 432

Reasons for Certification, July 30, 2010, at para. 162. Cloud v. Canada (Attorney General), [2004] O.J. No. 4924 (Ont. C.A.) at paras. 56 and 70, leave to appeal to the S.C.C. ref’ d, [2005] S.C.C.A. No. 346. 433 Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St-Ferdinand, [1996] 3 S.C.R. 211 (S.C.C.) at para. paras. 39, 41-42. 434 Professor R.J. Sobsey, Reply Report to Dr. Martin, May 21, 2013, p. 11.

- 92 residence at Huronia. The Crown has agreed that three (3) of these experts are qualified to give evidence regarding:
Sobsey: Standards of operation of institutions for developmentally disabled individuals and care of developmentally disabled individuals in Canada for the time period 1945 –2009; effects on victims of abuse, specializing in children who have been abused, or exposed to violence; effects on victims of abuse, specializing in children who have been abused and children victims of institutional abuse; and

Jaffe:

Wolfe:

287. in:

The plaintiffs will also tender Dr. Robinson in support of its damages request as an expert

Robinson:

effects on victims of abuse from authority figures and victims of institutional abuse.

288.

Essentially, these experts have determined and opined that, despite the range in nature

and severity of acts of abuse or trauma at Huronia, on a balance of probabilities:
“ residents would likely have been affected by the direct impact of abuse as well as the indirect effects of exposure to abuse and the climate created in this facility” .435

289.

Those circumstances would have then contributed to the development or exacerbation of

various forms of psychological and behavioural problems. The impacts on former residents continue despite the closure of the facility in 2009:
“ it is more likely than not that many individuals will continue to suffer from a host of 436 psychological disorders stemming from years of chronic abuse and neglect.”

290.

If this court accepts this proposition, namely that it is more likely than not that all

residents would have been affected in some way by the breaches of the Crown’ s duties, the expert evidence can be relied upon to anchor an aggregate assessment of monetary relief

435 436

Drs. Wolfe and Jaffe, Report on Damages, March 18, 2013, p. 21. Drs. Wolfe and Jaffe, Report on Damages, March 18, 2013, p. 21.

- 93 conclusion by this court (the same approach and general evidentiary basis sanctioned for a global injury or prejudice finding by the Supreme Court of Canada in both St. Ferdinand and St. Lawrence Cement). 291. Some examples of common experiences and harm a resident would suffer include: (a)
“ combined with profound medical, nutritional and often physical neglect and abuse, these children regress to very primitive states to where any and all type of sensory-motor, speech and language, and even intellectual abilities have become stagnated and, over the court of time, typically regress and deteriorate to levels where they appear truly mentally deficient, even though this was not the starting pattern in their lives” ;437 “ what tends to emerge in the child who has received multiple institutional placements combined with profound neglect and abuse on a wide scale level is the ‘ regression factor’ , or the child who ‘ disintegrates’and loses motor, sensory, speech and language, and intellectual skills. Once this regression occurs, it tends to be insidious and progressive” ;438 “ a toxic environment [is] one that exposes residents to inappropriate, excessive forms of punishment and control, physical and/or sexual abuse, physical and emotional neglect, fear, degradation and similar direct and indirect acts” ;439 and “ Huronia created a toxic climate in which ill treatment was the ‘ norm’and there was little or no attempt to redress the harmful effects on residents. This toxic environment at Huronia affected all residents by virtue of creating a state of fear, helplessness, and developmental regression as a function of caretakers’failure at all levels to protect residents from such harm and to provide for their basic needs” .440

(b)

(c)

(d)

292.

For example, Dr. Sobsey opines that an individual who spent twelve (12) months or more

in Huronia (regardless of whether they were physically or sexually abused) would be more likely than not to experience the following negative effects as a result of its substandard care: (a) (b) (c)
impaired language development; difficulty in social relationships; episodes of aggression;

437 438

Drs. Wolfe and Jaffe, Report on Damages, March 18, 2013, p. 11. Drs. Wolfe and Jaffe, Report on Damages, March 18, 2013, p. 11. 439 Drs. Wolfe and Jaffe, Report on Damages, March 18, 2013, p. 16. 440 Drs. Wolfe and Jaffe, Report on Damages, March 18, 2013, p. 16.

- 94 (d) (e) (f) (g) (h) 293.
impaired ability to form attachments or bonds; lowered self-esteem; impaired gross- and fine –motor skills; impaired mental performance, particularly verbal intelligence; and symptoms of learned helplessness.441

There is no meaningful or persuasive evidence to the contrary in this case. In fact, it is

undeniable that such harms would likely occur. 294. These expected adverse common impacts would be “ more extreme in individuals who

entered Huronia at earlier ages, who spent more time at Huronia, who were victim of physical or sexual abuse in the institution, who were given major tranquilizers while in Huronia, and who
442 spent time in seclusion or restraint at Huronia.”

295.

Drs. Wolfe and Jaffe also go on to define “ institutional abuse”so that the link between an

environment exhibiting institutional abuse and its common causal effects are clear for the trial judge:
“ The definition of ‘ institutional abuse’has referred primarily to settings in which almost every aspect of the child’ s like is controlled by the institution and by the same single authority. … Institutional abuse is typically defined as the sexual, physical or emotional abuse of an individual by a caregiver who works with him or her. The perpetrator may be employed in a paid or voluntary capacity; in the public, voluntary or private sector; in a residential or non-residential setting; and may work either directly with residents or be in an ancillary role. Central to this definition is the notion that institutional abuse involves the inappropriate use of power and authority, which has the potential to harm a person’ s ongoing development and future well-being. Such acts may also include a failure to protect the individual from harm or meet minimal standards of care, similar to established definitions of child neglect. Furthermore, regardless of setting and perpetrator, abuse is seldom a single event but rather a process that often involves grooming, bullying or confusing an

441

Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p.88. 442 Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, p. 88.

- 95 individual by taking advantage of the ongoing relationship and power differential 443 between the perpetrator and the victim.”

296.

Dr. Sobsey has identified four primary characteristics of institutional abuse which the

plaintiffs assert were present in the case of Huronia: (a)
extreme power inequities that exist between staff and residents, staff controlling when residents wake up, sleep, eat, wash, and virtually every other aspect of their lives; it is collective in nature, in the sense that there is typically more than one offender and more than one victim; people working within the institution know more about the abuse than that which they choose to share with the general public; and clearly defined patterns of environmental influence – unless structural, basic environmental conditions are changed, institutional abuse would continue to pervade.444

(b) (c) (d)

297.

Dr. Robinson describes that documents reveal habitual abuse, neglect and inappropriate

care of Huronia residents:
“ if this is true, this abuse would have had a devastating effect on the residents of Huronia who directly experienced this abuse or who lived in that environment and witnessed such abuse. All of the consequences found in normal children would be heightened by the helplessness, vulnerability and isolation of these residents. … Living in unclean, violent circumstances, already being afraid of being punished and rarely experiencing any 445 emotional warmth, they would regress rather than progress.” (Emphasis Added)

298.

The plaintiffs’experts on harm have described specific examples of the common harm

one might reasonable expect to have been suffered by every resident of Huronia (otherwise described as common outcomes of institutional abuse). 299. Based on this evidence and the tools in sections 23 and 24 of the CPA, this court may

properly infer that there were serious, precise and concordant presumptions that all residents had at least suffered some harm or injury arising from their tenure at Huronia.

443 444

Drs. Wolfe and Jaffe, Report on Damages, March 18, 2013, p. 12. Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, pp. 56– 57. 445 Dr. Robinson, Report on Damages, March 18, 2013, p. 7.

- 96 (i) 300. Emotional and Behavioural Problems 446 Persons with developmental disabilities are particularly vulnerable to the impact of

trauma or stressful events. Common manifestations of experiencing such trauma include anxiety, depression, self-harming behaviour and the general deterioration in functioning over time (cognitively, physically, behaviourally and socially). Further, individuals with intellectual impairments are at greater risk of their disability levels worsening without proper identification and treatment (which is the norm in an institutional setting like Huronia). For those exposed to trauma, they would consequently anticipate or expect that trauma to recur, thereby responding with aggression, defeat or frozen responses to minor everyday stresses. (ii) 301. Cognitive Impairments 447 The influence of stressors and psycho-emotional factors are typically sufficient to bring

about substantive cognitive difficulties (often related to PTSD) which only exacerbate existing intellectual impairments. Individuals exposed to repeated traumas are also at increased risk for developing Complex Post Traumatic Stress Disorder which may manifest itself with an individual exhibiting self-injurious behaviours or aggression towards others. (iii) 302. Harm to Relationships and Interpersonal Well Being 448 The experience of trauma is directly associated with chronic health and behavioural

disorders, and “ occurs not only in the context of obvious physical or sexual abuse but also from neglect that occurs as a result of a lack of consistent and predictable nurturing parent models” . Persons with intellectual impairments are more vulnerable than the general population at large to developing stress reactions to trauma as a result of challenges associated with cognitive processing, reasoning, insight and communication, often worsened by the coping skills to create resilience or recovery.

446 447

Drs. Wolfe and Jaffe, Report on Damages, March 18, 2013,pp. 17– 18. Drs. Wolfe and Jaffe, Report on Damages, March 18, 2013, pp. 18– 19. 448 Drs. Wolfe and Jaffe, Report on Damages, March 18, 2013, p. 19.

- 97 (iv) 303. Physical Impairments and Health Issues 449 Chronic trauma interferes with developmental processes and chronic neglect can have

profound influences on brain development. The central nervous system is altered and brain development is slowed. The more prolonged the neglect, the more likely it is for permanent brain damage to occur: “ this connection is further compounded when taking into consideration people with intellectual disabilities, as exposure to trauma makes the severity of developmental delays more profound” . 304. Abuse experienced or suffered during childhood (whether it be sexual, physical or

emotional) “ causes actual changes in the hypothalamic area of the brain and in secretion of cortical releasing factor. … abuse beginning before puberty physiologically predisposes the victim to depression, PTSD, socialization problems and substance abuse later in life” . 450 (v) 305. Greater Vocational and Educational Remedial Needs 451 On a balance of probabilities, it is more likely than not that the neglect experienced at

Huronia negatively impacted the physical, mental and social development of its residents. Accordingly, the Huronia environment led to reduced potential for these persons to benefit from normal educational and vocational opportunities: “ when they were eventually placed in community settings, they would have presented as having much greater vocational and educational remedial needs that would have been the case had they not been exposed to institutional abuse at Huronia” . (vi) 306. Greater Level of Required Supports 452 Persons with developmental disabilities exposed to repeated trauma require much higher

resources to support them in community settings, for example, higher than typical staffing ratios or secure environments. These individuals are also often misdiagnosed with various types of psychiatric conditions, misdiagnoses which can lead to escalating types of invasive treatments.

449 450

Drs. Wolfe and Jaffe, Report on Damages, March 18, 2013, pp. 19–20. Dr. Robinson, Report on Damages, March 18, 2013, p. 5. 451 Drs. Wolfe and Jaffe, Report on Damages, March 18, 2013, p. 20. 452 Drs. Wolfe and Jaffe, Report on Damages, March 18, 2013, p. 20.

- 98 307. The prognosis for recovery is usually very poor, leading persons to experience a

revolving door process with police intervention, hospitalization and even homelessness where a secure placement cannot be located: “ in these situations they become vulnerable once again to repeated victimization and abuse, with further deterioration in cognitive, physical, behavioural and social domains of functioning. In effect, a toxic environment such as Huronia, leads to much higher levels of disability than would have been the case otherwise.” (vii) 308. Financial Impacts 453 Experts have identified two primary financial impacts resulting from an individual’ s

residence at Huronia: (a) the failure to be fairly compensated for their labour meant that it was impossible for residents to save money; and (b) the failure to be properly educated or trained for competitive employment meant that residents had fewer job opportunities and less earning potential when they left the institution. 309. These uncompensated resident workers formed a captive workforce that was required to

work without pay and who did not have the freedom to leave the institution. Over the years, there were hundreds of residents working the equivalent hours to those of full-time paid employees. (viii) 310. Proposed Methodology for Aggregate Assessment of Monetary Relief 454 The experts have posited a reasonable methodology for the aggregate assessment of

monetary relief and opine that “ it is possible to describe a range of outcomes based on how the toxic nature of the Huronia environment affected residents” . The methodological framework proposes that injuries or harm can be reasonably determined (and measured) on the basis of (a) pre-existing levels of intellectual functioning and (b) an individual’ s corollary most likely level of necessary support due to the harm suffered as a result of the toxic Huronia environment:
“ Our model considers the pre-existing level of developmental disability (i.e. mild, moderate, severe/profound, and other), the typical developmental trajectory for individuals at each level of disability and the typical level of support required for

453

Professor R.J. Sobsey, Expert Opinion Regarding Standards of Care of the Huronia Regional Centre: 1945-2009, (Report 2 of 2), March 22, 2013, pp. 88– 98. 454 Drs. Wolfe and Jaffe, Report on Damages, March 18, 2013, pp. 22– 28.

- 99 residents to attain benefit at an institution (in which there is no toxic environment). We then compare this typical pattern of development and needed supports with the outcomes and supports we opine are needed for residents exposed to the toxic environment at Huronia. This approach is intended to serve as an alternative to individually assessing the 455 approximately 5,000 to 6,000 members of this class.”

311.

Part one of the framework - levels of disability - accord with the DSM diagnostic criteria

for intellectual disabilities. These are based on intelligent quotients, limitations on adaptive behaviour and the early onset of disability. 312. Part two of the framework – levels of support – are based on the American Association

on Intellectual Disabilities supports-based definition and classification system. These levels of projected support range between intermittent/limited, extensive and pervasive. 313. Alternatively, based upon the authority of Fulawka, the court is entitled to take a “ top-

down” approach to aggregating a global damage award, “ arrived at through an aggregate assessment of global damages, as opposed to through an aggregation of individual claims” .456 For example, without regard to the individual situations of the class members, this court may assess monetary relief on the basis of how the Crown was enriched as a result, based on the amounts it saved through understaffing and the unpaid (or underpaid) labour of the Resident Class over a 65 year period. Common Issue D: If the answer to either of common issues (a) or (b) is “ yes” , was the defendant guilty of conduct that justified an award of punitive damages? (1) 314. Legal Principles Governing the Awards and Availability of Punitive Damages Punitive damages are available where the following elements have been satisfied: (a) (b)
proof of an actionable wrong; the wrong has caused the injury suffered by the plaintiff; and

455 456

Drs. Wolfe and Jaffe, Report on Damages, March 18, 2013, p. 22. Fulawka v. Bank of Nova Scotia, [2012] O.J. No. 2885 (Ont. C.A.) at para. 126.

- 100 (c) 315.
defendant’ s conduct is deserving of condemnation or sanction because of its malicious, reprehensible or vindictive nature.457

If either or both of common issues 4(a) and (b) are answered affirmatively, each of the

above legal components have been satisfied in this case. Moreover, it is well-settled that the purpose of punitive damages is to punish a defendant for its misconduct and to deter the defendant and others from similar misconduct in the future. The quantification of punitive damages depends on the nature of the defendant’ s conduct, the deterrent effect and the means of the defendant.458 316. Punitive damages have been awarded in cases where a defendant recklessly disregarded a

plaintiff’ s rights or exposed the plaintiff to a risk without justification.459 317. The fact that the plaintiffs are members of a class proceeding does not prohibit an award

of punitive damages.460 In fact, the principles informing entitlement to punitive damages are also consistent with one of the primary goals and purposes of the CPA namely, behaviour modification. The importance of behaviour modification was addressed by the Supreme Court of Canada in Western Canadian Shopping Centres:
“ Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers do not ignore their obligations to the public. Without class actions, those who cause widespread but individually minimal harm might not take into account the full costs of their conduct, because for any one plaintiff the expense of bringing suit would far exceed the likely recovery. Cost-sharing decreases the expense of pursuing legal recourse and accordingly deters potential defendants who might otherwise assume that minor 461 wrongs would not result in litigation.”

318.

Behaviour modification, like punitive damages, requires wrongdoers to take “ full

account” of the costs of their misdeeds – an important overarching goal in an action like this which squarely confronts the obligations of the Crown to vulnerable persons in its care and control. The issue of punitive damages is also particularly well-suited to determination by way of

457

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085 at para. 27; Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595 at para. 27. 458 J. Cassels, Remedies: The Law of Damages, (Toronto: Irwin Law, 2008) at 281, 295-297. 459 Robitaille v. Vancouver Hockey Club Ltd., (1981) 30 B.C.L.R. 286 (B.C.C.A.) at paras. 68-69; Coughlin v. Kuntz (1989), 42 B.C.L.R. (2d) 108 (B.C.C.A.) at paras. 9-10; G.B.R. v. Hollett (1996), 154 N.S.R. (2d) 161 (N.S.C.A.) at para. 237. 460 Peppiatt v. Nicol, [1998] O.J. No. 3370 (Gen. Div.) at para. 220, aff’ d [2001] O.J. No. 2584 (C.A.) at paras. 57-59. 461 Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534 at para. 29.

- 101 class proceeding, since both liability and quantum of punitive damages can be determined on a class-wide basis. This was considered and expressly approved by the Supreme Court of Canada in Rumley:
“ As noted above, Mackenzie J.A. certified as common not only the standard-of-care issue but also the punitive damages issues. Here, too, I agree with his reasoning. In this case resolving the primary common issue -- whether JHS breached a duty of care or fiduciary duty to the complainants -- will require the court to assess the knowledge and conduct of those in charge of JHS over a long period of time. This is exactly the kind of fact-finding that will be necessary to determine whether punitive damages are justified: see, e.g., Endean, supra, at para. 48 . (An award of punitive damages is founded on the conduct of 462 the defendant, unrelated to its effect on the plaintiff.).”

319.

The Crown’ s misconduct in the present case was not directed at specific individuals at

Huronia. Rather, it was a routine operational practice, carried out over many years. 320. The class proceeding Peppiatt v. Nicol involved investments made in a planned future

golf course, the plaintiffs being ordinary investors and not inherently vulnerable persons as is the case here. The Ontario Court of Appeal upheld the trial judge’ s award of $5,000.00 to each class member for the defendant’ s breach of fiduciary duty on the basis that:
“ In this case Nicol totally disregarded the interest of the investors to whom he owed a duty. I have already referred to comments attributed to both R.J. Nicol and Pat Nicol which showed their contempt for the investors’interest. In my view that conduct would attract an award of punitive damages. I would award each of the 169 investors $5,000.00 463 by way of punitive damages.”

321.

In particular, if this court answers common issue 4(b) affirmatively and makes a

declaration that fiduciary duty was owed and breached, there has been, ipso facto, a finding of blameworthiness or breach of trust, raising the level of Crown conduct from carelessness to sanctionable behaviour:

462 463

Rumley v. British Columbia, [2001] 3. S.C.R. 184 at para. 34. Peppiatt v. Nicol, [1998] O.J. No. 3370 (Gen. Div.) at para. 221, aff’ d [2001] O.J. No. 2584 (C.A.) at paras. 58-59.

- 102 “ [while] an independent actionable wrong is required but, it can be found in breach of a distinct and separate contractual provision or other such duty such as a fiduciary obligation” . 464

322.

Punitive damages ought to therefore flow automatically if common issue 4(b) is answered

“ yes” . As stated by Chief Justice McLachlin, “ where the actions of the fiduciary are purposefully repugnant to the beneficiary’ s best interests, punitive damages are a logical award to be made by
465 the Court.”

323.

Lastly, this is not a case where the Crown ought to be ‘ spared’from punitive damages as

a reward for how it conducted its litigation defence. In Muir v. Alberta, the court found the Province’ s treatment of the plaintiff to have been unlawful and offensive but declined to award punitive damages in part because the Province had not invoked certain defences such as limitations:
“ [a]s a matter of public policy this and other governments should be encouraged to recognize historical wrongs and to make fair amends for them. They should not be 466 punished for doing so.”

324.

Conversely, in this case, the Crown has made no concessions whatsoever, including the

failure to admit it even owed a prima facie duty to the Resident Class. Furthermore, the Crown has never recognized the historical wrongs perpetrated at Huronia. Nor has it ever made fair amends for them. It has resisted this action at every stage, needlessly prolonging it despite the plaintiffs’many attempts to speed it up. 325. The Crown has gone so far as to boldly assert and plead the following:
“ Institutions might be overcrowded and understaffed, they might have few or no teachers, physiotherapists, occupational therapists, or any other professional personnel; indeed, they might have fallen short on every single standard published by the AAMD or any other professional body from the 1950s to the 1970s, and still have suffered no 467 legal or policy consequences –at least in Ontario and elsewhere in Canada.”

464 465

Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595 at para. 82. Norberg v. Wynrib, [1992] 2 S.C.R. 226 at para. 111, relying upon Fiduciary Duties in Canada (R. DeBoo, 1988). 466 Muir v. Alberta (1996), 179 A.R. 321 (Alta. Q.B.) at para. 153. 467 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945 –2009, May 22, 2013, p. 4.

- 103 “ The Crown denies that any resident at HRC was abused, neglected or mistreated by the Crown’ s representatives, employees or agents during the time of their placement at HRC and the Crown holds the plaintiffs to the strict proof of this allegation. If abuse, mistreatment or neglect did occur, which the Crown expressly denies, the Crown specifically denies that it had or should have had any knowledge or information concerning the allegations of abuse, mistreatment and neglect in the Amended Statement 468 of Claim.”

(2) 326.

The Crown’ s Own Admitted Conduct The Crown’ s conduct justifies an award for punitive damages for the following reasons: (a) (b)
the Crown’ s acknowledgement of overcrowding, understaffing and poor conditions, yet a persistent failure to take steps to rectify; the Crown’ s admission that over the years, the press, parents and government policymakers themselves noted that Huronia fell short of the prevailing standards;469 although there was knowledge of overcrowding and an inability to provide beneficial programs, residents continued to be admitted to the facility; 470 by 1976 numerous specific recommendations had been made directly to the Crown to identify, halt, report and eliminate abuse and to provide an appropriate level of care to Huronia residents;471 in 1980, the Crown knew that Huronia had still not met even the 1964 Standards, putting staff and residents at risk;472 the Crown’ s admission that putting vulnerable, helpless residents in a facility fraught with overcrowding, understaffing and aging conditions created an environment propitious for abuse;473 and its failure to admit or concede any issues in this litigation, including owing a prima facie duty to the Resident Class.

(c) (d)

(e) (f)

(g)

468 469

Statement of Defence at paras. 68, 69, Amended Trial Record, Tab 2. Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, pp. 121-122. 470 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009, (Report 1 of 2), March 22, 2013, p. 8. 471 Plaintiff’ s Request to Admit dated January 16, 2012, Q. 80, Amended Trial Record, Tab 8; Defendant’ s Response to Request to Admit dated January 31, 2012, Q. 80, Amended Trial Record, Tab 9; CR035897, Report of the Task Force Dealing With Resident Abuse; CR035896, Memorandum from Dr. Donald E. Zarfas, Special Consultant in mental Retardation to Mr. A.P. Gordon, Assistant Deputy Minister (27 June 1975). 472 Professor R.J. Sobsey, Opinion Regarding Impact of Substandard Care at the Huronia Regional Centre: 1945-2009 (Report 1 of 2), March 22, 2013, pp. 10; 45; CR032989/18, Disturbed Behaviour in Ontario Mental Retardation Facilities, A Report of the Provincial Professional Advisory Committee to The General Manager M.R. Facility Services Dvision Ministry of Community and Social Services (July 1980). 473 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 43.

- 104 327. As early as 1969, the Crown was aware of the following issues which were openly

discussed and debated in the Ontario Legislature:
(a) “ Why have the facilities in this province in connection with mental retardation lagged so far behind those other areas in which advancement has been considerable? The facilities have been plagued by a triple problem: over-crowding, understaffing, and 474 under-financing.” (b) “ The under-financing of most public institutions is a tremendous problem. The 1966-7 per diem costs in this province range from about $7.50 to $10.00. In contrast, the largest zoos even a few years ago spent an average of over $7.50 daily for their largest animals.”475 (c) “ this under-financing pertains to all aspects of residential care; it contributes of course to the understaffing.”476 (d) “ many of the institutions are grossly over-crowded, being anywhere from 35 to 50 percent above their rated bed capacity.”477

328.

The Crown’ s own witness, Dr. Simmons, admitted the following:
(a) “ over the years, the press, parents and government policymakers themselves noted that Huronia fell short of the prevailing standards, and appealed to government to set things right, but, without a massive injection of government funds, nothing could be 478 done to rectify the situation.” (b) “ institutions in Ontario could be overcrowded, understaffed and fall short on every standard published by the AAMD or other bodies and there would be no legal, ramifications or sanctions.” [Simmons]479 (c) “ confusion over which standards to use on staffing, and complaints about overcrowding continued in the 1980s [at Huronia]480 (d) “ Williston confirmed reports of poor conditions in Ontario’ s large institutions 481 including overcrowding and understaffing.”

474 475

CR081461/2, Transcript of Dr. Shulman (11 November 1969). CR081461/5, Transcript of Dr. Shulman (11 November 1969). 476 CR081461/2, Transcript of Dr. Shulman (11 November 1969). 477 CR081461/6, Transcript of Dr. Shulman (11 November 1969). 478 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, pp. 121-122. 479 Dr. Simmons, Reply Report, May 22, 2013, at p. 4. 480 Dr. Simmons, Reply Report, May 22, 2013, at p. 4. 481 Dr. Simmons, Report on The Huronia Regional Centre, Orillia: 1945-2009, March 25, 2013, p. 11; CR008840, Walter B. Williston, Present Arrangements for the Care and Supervision of Mentally Retarded Persons in Ontario (15 August 1971).

- 106 SCHEDULE “ A” LIST OF AUTHORITIES 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129 Myers (Next friend of) v. Peel County Board of Education, [1981] 2 S.C.R. 21 Rumley v. British Columbia, [2001] 3 S.C.R. 184 K.L.B. v. British Columbia, [2003] 2 S.C.R. 403 Durham v. N. Oxford P.S. Bd. (1960), 23 D.L.R. (2d) 711 (Ont. C.A.) T.W.N.A. v. Clarke (2003), 235 D.L.R. (4th) 13 (B.C.C.A.) F.S.M. v. Clarke, [1999] 11 W.W.R. 301 (B.C.S.C.) L.R. v. British Columbia (1999), 180 D.L.R. (4th) 639 (B.C.C.A.) Cooper v. Hobart, [2001] 3 S.C.R. 537 Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145 Wyatt v. Stickney (1971), 325 F. Supp. 781 (N.D. Ala.) Wyatt v. Stickney (1971), 334 F. Supp. 1341 (N.D. Ala.) Just v. British Columbia, [1989] 2 S.C.R. 1228 Wyatt v. Stickney (1972), 344 F. Supp. 373 (N.D. Ala.) New York State Association for Retarded Children, Inc., et al. v. Nelson A. Rockefeller, (1973), 357 F. Supp. 752 Association for Retarded Citizens of North Dakota v. Olson (1982), 561 F. Supp. 473 Evans et al. v. Washington et al. (1978), 459 F. Supp. 483 (D.D.C.) Lelsz v. Kavanagh (1987), 673 F. Supp. 828 (D.D. Tex.) M.M. v. R.F. (1997), 52 B.C.L.R. (3d) 127 (B.C.C.A.) Lloyds Bank Ltd. v. E.B. Savory & Co., [1933] A.C. 201 (H.L.) B.C. Rail Ltd. v. Canadian Pacific Consulting Services Ltd., [1988] B.C.J. No. 326 (B.C. S.C.) ter Neuzen v. Korn, [1995] 3 S.C.R. 674

- 107 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. Crits and Crits v. Sylvester et al., [1956] O.R. 132-151 (C.A.) Sylvester v. Crits (Next friend of), [1956] S.C.R. C.A. v. Critchley (1998), 166 D.L.R. (4th) 475 (B.C.C.A.) Frame v. Smith, [1987] 2 S.C.R. 99 Norberg v. Wynrib, [1992] 2 S.C.R. 226 Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574 Seed v. Ontario 2012 ONSC 2681 M.(K.) v. M.(H.) [K.M. v. H.M.], [1992] 3 S.C.R. 6 Guerin v. Canada, [1984] 2 S.C.R. 335 K.L.B. v. British Columbia, [1996] B.C.J. No. 3036 (B.C.S.C) Brown v. Canada, [2010] O.J. No. 2253 (S.C.J.) Manitoba Metis Federation Inc. v. Canada (Attorney General), [2010] M.J. No. 219 (Man. C.A.). Hospital Products Ltd. v. United States Surgical Corporation et al. (1984), 55 A.L.R. 417 (C.A.) Regal (Hastings) Ltd. v. Gulliver, [1942] 1 All E.R. 378 (H.L.) Stewart v. Canadian Broadcasting Corp. (1997), 150 D.L.R. (4th) 24 (Ont. Gen. Div.) E.D.G. v. Hammer, [2003] 2 S.C.R. 459 52 Markson v. MBNA Canada Bank, [2007] O.J. No. 1684 (Ont. C.A.) Cassano v. Toronto-Dominion Bank, [2007] O.J. No. 4406 (Ont. C.A.) St. Lawrence Cement Inc. v. Barrette, [2008] 3 S.C.R. 392 Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St-Ferdinand, [1996] 3 S.C.R. 211 Wilkins v. Rogers Communications Inc., [2008] O.J. No. 4381 (S.C.J.) Lee Valley Tools Ltd. v. Canada Post Corp., [2007] O.J. No. 4942 (S.C.J.) Gilbert v. Canadian Imperial Bank of Commerce, [2004] O.J. No. 4260 (S.C.J.)

- 108 46. Québec (Curateur public) c. Syndicat national des employés de l'Hôpital St-Ferdinand, [1989] R.J.Q. 359 (a) 47. 48. 49. Unofficial English Translation

St. Lawrence Cement Inc. v. Barrette, [2008] 3 S.C.R. 392 Bou Malhab v. Diffusion Métromédia CMR inc., [2011] 1 S.C.R. 214 Québec (Curateur public) c. Syndicat national des employés de l'Hôpital St-Ferdinand (CSN), [1994] J.Q. No. 848 (Qc. C.A.) (a) Unofficial English Translation

50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60.

Fulawka v. Bank of Nova Scotia, [2012] O.J. No. 2885 (C.A.) Cloud v. Canada (Attorney General), [2004] O.J. No. 4924 (C.A.) Vorvis v. Insurance Comp. of British Columbia, [1989] 1 S.C.R. 1085 Whiten Pilot Insurance Co., [2002] 1 S.C.R. 595 Robitaille v. Vancouver Hockey Club Ltd. (1981), 30 B.C.L.R. 286 (B.C.C.A.) Coughlin v. Kuntz (1989), 42 B.C.L.R. (2d) 108 (B.C.C.A.) G.B.R. v. Hollett (1996), 154 N.S.R. (2d) 161 (N.S.C.A.) Peppiatt v. Nicol, [1998] O.J. No. 3370 (Gen. Div.) Peppiatt v. Nicol, [2001] O.J. No. 2584 (C.A.) Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534 Muir v. Alberta (1996), 179 A.R. 321 (Alta. Q.B.)

SECONDARY SOURCES 61. 62. Leonard I. Rotman, Fiduciary Law (Toronto: Thomson Carswell, 2005) Legislative Assembly, Official Report of Debates (Hansard), 26th Parl, 1st Sess, No. 14 (12 February 1960)

- 109 SCHEDULE “ B” TEXT OF RELEVANT STATUTES TABLE OF CONTENTS TAB 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. STATUTE An Act to Amend the Mental Hospitals Act, S.O. 1938, c. 20 An Act to Amend the Mental Hospitals Act, S.O. 1941, c. 29 An Act to Amend the Mental Hospitals Act, S.O. 1943, c. 13 An Act to Amend the Mental Hospitals Act, S.O. 1960, c. 67, s. 1 An Act to Amend the Mental Hospitals Act, S.O. 1962 –1963, c. 81, s. 2 An Act to Amend the Mental Hospitals Act, S.O. 1967, c. 52, s. 4 Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 23-26 Developmental Services Act, R.S.O. 1990, c. D. 11, s. 5 Developmental Services Act, R.R.O. 1990, Reg. 272, ss. 13.1, 18. The Developmental Services Act, 1974, S.O. 1974, c. 2, ss. 2(1), 3(4), 38(b)-(e) The Mental Hospitals Act, S.O. 1937, c. 392, ss. 5(2)(d)-(g), 6(1), 7 The Mental Hospitals Act, O. Reg. 26/44 ss. 3 The Mental Hospitals Act, O. Reg. 9/52, s. 5(1) The Mental Hospitals Act, O. Reg. 207/62, s. 4, s. 5

Dolmage et al. Plaintiffs

and

HMQ Defendant

Court File No: CV-09-376927CP00 ONTARIO SUPERIOR COURT OF JUSTICE
Proceeding commenced at Toronto

PLAINTIFFS’OPENING ARGUMENT (Common Issues Trial Commencing September 16, 2013) KOSKIE MINSKY LLP 900-20 Queen Street West Toronto, ON M5H 3R3 Kirk M. Baert LSUC #:30942O Tel: (416) 595-2117 Fax: (416) 204-2889 Celeste Poltak LSUC #:46207A Tel: (416) 595-2701 Fax: (416) 204-2909 David Rosenfeld LSUC #:51143A Tel: (416) 595-2700 Fax: (416) 204-2894 Jody Brown LSUC #:58844D Tel: (416) 595-2709 Fax: (416) 204-2815 Garth Myers LSUC #:62307G Tel: (416) 595-2102 Fax: (416) 204-4924 Lawyers for the Plaintiffs

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