Editor's note: The following story has been updated from its original version to correct the CMPA as the Canadian Medical Protective Association. We regret the error and any confusion it may have caused.
A lawyer representing 28 patients of a maximum-security psychiatric institution who were awarded a total of $9.5 million last week says although an appeal is possible, it would be nice to close the door on 20 years of litigation.
“The actual amount of the awards were somewhat disappointing,” said Joel Rochon, who successfully sued two doctors and the Crown for abusive treatment of patients at the former Oak Ridge division of the Penetanguishene Mental Health Centre.
Psychiatrists Dr. Elliot Thompson Barker and Dr. Gary J. Maier, along with the Crown, were found liable last June for using pain as an instrument in a treatment program conducted between 1966 and 1983.
Last week, Justice Edward Morgan of the Ontario Superior Court decided those patients should be awarded a combined $9.5 million for general and punitive damages, as well as some lost income.
More than one-quarter of that was awarded to the family of a man, who has since died, who was sent as a small teenager to the facility on Asylum Point, which separates Penetang Harbour from Georgian Bay.
Justice Morgan found Danny Joanisse was humiliated, degraded and deprived of any sense of security at Oak Ridge. Joanisse underwent treatments that caused lasting harm that effectively prevented him from reintegrating into society up until the last decade of his life, and also extended his paranoia, anxiety and mental anguish for the rest of his life.
The general damages award for Joanisse was $2.1 million, plus $600,000 in punitive damages.
Most of the awards, however, were much smaller and the punitive damages were less than the general damages awarded.
Rochon, whose team represented the 28 patients over all the years, questions whether the awards for punitive damages are sufficient to adequately deter future like behaviour.
“When you’re looking at it at that broader context, $100,000 or $250,000 when you’re attempting to deter a government or the well-heeled CMPA (Canadian Medical Protective Association), which is the insurer of these doctors, from repeating these outrageous actions and human experimentation, I think we have to conclude that more could have been done on the level of punitive damages,” Rochon said.
He said the case is still being reviewed and points out the defendants have prepared notices of appeal on the judge’s original finding that the doctors and the Crown were liable. Although, there’s no indication yet they are proceeding with an appeal.
Meanwhile, the court has yet to decide on costs in the case, which is expected in the next couple of months.
“As a developed Western society, democratic as we are here in Canada, we just don’t torture prisoners and we don’t abuse psychiatric patients,” said Rochon. “Regardless of who these people are, and some of them had committed terrible acts, most of them were found not guilty by reason of insanity, so we’re dealing with people with profound mental illness on one side of the spectrum, and then you have others who were 14, 15, 16 when they went into Oak Ridge and were subjected to these horrible forms of human experimentation and profound abuse.”
Through a series of programs involving patients in the so-called social therapy unit of what was then the Oak Ridge 'D', now called Waypoint, patients were given high doses of hallucinogens and mind-altering drugs, including LSD and alcohol, as the cornerstone of one program they called 'defence disruptive therapy'.
Patients were also locked in a “capsule” for extended periods of time for group encounters. Some were strapped to other patients while naked.
Another program employed an overly strict physical disciplinary regime.
When the Oak Ridge suit was launched in 2000, it started as a proposed class-action. But at a hearing three years later, Maurice Cullity, then a judge with the Ontario Superior Court of Justice, refused to certify it. He found the individual situation that each patient was subjected to differed from patient to patient, and that they had individual medical pasts.
So it proceeded as a lawsuit with 28 plaintiffs.
“This has been a long, difficult journey. We started this case over 20 years ago and it’s been through multiple motions, appeals, it’s been to the Court of Appeal” followed by more than 70 days in trial, said Rochon.
“And now it’s been the subject of close to 500 pages of written judgments from Justice Morgan. This case should be wrapped up; it shouldn’t drag on any further,” he said, adding some of the plaintiffs have died during the lengthy process.
“It’s one of these historic cases that needs to come to a final conclusion.”
