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Appeals court upholds ruling against two former Oak Ridge docs

Doctors Elliot Barker and Gary Maier, along with Crown, liable for using pain as an instrument in treatment programs conducted between 1966 and 1983
2021-02-02 ap
Formerly called the Penetanguishene Mental Health Centre, this logo found inside Waypoint's Atrium building. Andrew Philips/MidlandToday

The Ontario Court of Appeal has upheld a judgment in favour of patients who were subjected to “degrading and inhumane” experimental treatments at the former Oak Ridge maximum security psychiatric facility in Penetanguishene.

The appeals court heard from lawyers representing the various parties, which included two former psychiatrists, the province and 28 patients once housed at the facility, during a three-day hearing last December.

“Collectively, the parties raise a host of issues,” the appeals court finding reads. “Ontario and the physicians challenge the trial judge’s findings on breach of fiduciary duty, battery and assault.

“They also raise Crown immunity issues and limitation period issues. They submit that the trial judge made factual and legal errors and challenge the sufficiency of  his reasons. They also challenge his damages awards on a number of grounds. The respondents, in turn, also raise a number of damages issues.”

In June 2020, Justice Edward M. Morgan of the Ontario Superior Court found psychiatrists Dr. Elliot Thompson Barker and Dr. Gary J. Maier, along with the Crown, liable for using pain as an instrument in a treatment program conducted between 1966 and 1983.

In a ruling in early 2021, which followed late hearings in 2020 to discuss possible compensation, the judge awarded the affected patients a total of just under $10 million.

The awards for the 28 patients range from $1,000 up to $2.7 million for a vulnerable teenager in “mental agony” who was shackled naked to other patients, including a sex offender. For the most part, the appeals court upheld the original compensation packages.

“We uphold the trial judge’s conclusion that Ontario and the physicians are liable for breach of fiduciary duty to all respondents, except Mr. (Stanley) Kierstead,” the appeals court writes in its decision.

“We also uphold his finding of battery but only in relation to specified respondents. We reverse his findings on assault.

“We agree with the physicians who contend that the trial judge committed a palpable and overriding error in awarding damages to this respondent. Given his finding that Mr. Kierstead was never subjected to any of the STU (social-therapy unit) programs; the trial judge ought to have dismissed the claim.”

But the appellant court did reject the Crown’s and physicians’ contention regarding “interpretation of the special historic limitation periods in the Mental Health and Mental Hospitals acts” in an effort to dismiss the Morgan's ruling.

“In Ontario, mental-health-care providers and institutions have benefited from special protections under the MHA and the Mental Hospitals Act,” the appeals court decision notes.

“They protect healthcare providers and institutions by imposing short limitation periods for actions undertaken in pursuance of the objectives of these Acts.”

However, the court noted that these protections have no application in circumstances like this one.

“They cannot be used to insulate healthcare providers from liability for egregious breaches of fiduciary duty and intentional torts where there was a certainty of inflicting grievous harm and no reasonable basis for a belief that any benefit would be achieved.”

The court noted the legislation wasn’t enacted to protect the conduct outlined in this case, which resulted in patients being subjected to “torture, regardless of whether those actions were undertaken in good faith.”

“Such actions are the antithesis of acts done in the direct execution of the statutory duty or necessarily incidental to carrying out  that duty. They are the antithesis of acting in the patients’ best interests, and, as  such, are contrary to the purposes of the Acts, which are to ensure that mental health patients receive the treatment they require.”

During the initial trial, court heard that the two doctors were largely influenced by the culture of the time in the development of treatment programs, which involved the use of high doses of hallucinogens and mind-altering drugs, confinement of naked men in a room for days on end, as well as one following a strict physical disciplinary regime.

The use of LSD (lysergic acid diethylamide, also commonly known as 'acid') hit a breaking point in 1975 following a mass ‘trip’ in which 26 men were given the drug at once, leading to the demise of the decade-old program.

Described as small, weak, confused and suicidal, Danny Joanisse was admitted to Oak Ridge for the first time in 1971 at the age of 15 and stayed for a year. He was sent back to a training school, where had been previously, and then he attacked another young student with a knife and cut off three of his own fingers.

Joanisse was charged with attempted murder and was found not guilty by reason of insanity. He was sent back to Oak Ridge where he spent “horrific” teen years, undergoing the psychologically painful programming.

He testified during the first phase of the trial, but died when Justice Morgan was deliberating.

At the time, he told the court: “The day I entered Oak Ridge was one of the scariest days of my life. I had just been transferred from a place where I was repeatedly sexually abused to an institution which housed adult males who had committed serious violent crimes, including rape and murder.

"I was physically small, even for my age, let alone among the other patients, and I just wanted to go back home.”

The general damages award for Joanisse was $2.1 million, plus $600,000 in punitive damages. This figure was upheld by the appellant court.

Now called the Waypoint Centre for Mental Health Care, the facility is home to many people declared by the courts to be not guilty by reason of mental illness, or insanity as it was then described.

They are locked up indefinitely, until they are deemed well. Some have been there for more than 40 years.

-with files from Marg Bruineman


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Andrew Philips

About the Author: Andrew Philips

Editor Andrew Philips is a multiple award-winning journalist whose writing has appeared in some of the country‚Äôs most respected news outlets. Originally from Midland, Philips returned to the area from Québec City a decade ago.
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