Barker v. Barker, 2021 ONSC 158

In the case of Barker v. Barker, Justice Morgan outlines the harm suffered by the 28 plaintiffs who were patients at the Oak Ridge Division of the Penetanguishene Mental Health Centre from the mid-1960s until the early 1980s. The plaintiffs brought an action against the individual physicians as well as the Government of Ontario for breach of fiduciary duty.

Justice Morgan proceeded with the second phase of the trial on the basis that the three impugned programs carried on in the Social Therapy Unit (“STU”) of the Oak Ridge Division of the Penetanguishene Mental Health Center caused each of the plaintiffs harm in one degree or another.

This article summarizes Justice Morgan’s analysis of general damages and damages caps in the context of institutional claims and unique types of harm.

As this was not a class action, there was no aggregating of damages or imposition of a collective award; rather, the damages assessment had to conform with the specific, individual holdings set out in the first phase of the trial. At the conclusion of the first phase of the trial, Justice Morgan employed a graded scale of harms caused by the STU programs to the plaintiffs, qualifying them as either short term or long term and any of mild, moderate, or substantial. This was provided as a guide to the damages phase of the trial, but the gradations of harm do not reflect any externally established standards or Justice Morgan’s subjective response to any individual plaintiff. Accordingly, it was the reported cases dealing with comparable situations, together with the expert evidence, that set the parameters of the damage awards to be applied to the individual plaintiffs in accordance with their personal histories. The Court of Appeal has made it clear in Mulroy v. Aqua Scene (1982), 36 OR (2d) 653, at para 15 (Ont CA), that in arriving at a quantum of damages, trial judges are to avoid the pitfall of approving “large differences in awards to individuals who do not differ greatly.”

Justice Morgan stated that in a case like this, any quantification of damages, especially for non-pecuniary losses, will entail an element of arbitrariness since compensating for lost years and psychological suffering is not mathematically calculable. At the time same, the quantification must not be out of line with existing caselaw. It cannot be so high or so low as to be considered disproportionate. As the Supreme Court of Canada stated in Andrews v. Grand & Toy, [1978] 2 SCR 229, 261, “the award must be fair and reasonable, fairness being gauged by earlier decisions.”

General Damages

As stated in Ward v. James [1965] 1 All ER 563 (CA), “the aim of the damages phase of the trial is to do what can be done to alleviate the disaster to the victim and to determine what it will cost to enable her to live as tolerably as may be in the circumstances.”

The starting point for quantification of non-pecuniary losses is Andrews. Justice Morgan stated that the amount of the award is to be tied to the given Plaintiff’s experience and needs. Where general damages are concerned, the amount is not adjusted to reflect the actions of the defendants, regardless of how egregious their conduct was.

General damages are to reflect what the Court in Andrews called a functional approach:

The … ‘functional’ approach, accepts the personal premise [valuation of the injury in terms of the loss of human happiness by the particular victim]…, but rather than attempting to set a value on lost happiness, it attempts to assess the compensation required to provide the injured person ‘with reasonable solace for his misfortune.’ ‘Solace’ in this sense is taken to mean physical arrangements which can make his life more endurable rather than ‘solace’ in the sense of

Further, the Supreme Court in Blackwater v. Plint, [2005] 3 SCR 3 outlined four factors that are relied on by plaintiff’s counsel as a foundation for individual damages claims. They are as

A) The age and vulnerability of the victim at the time of the events;
B) The frequency and severity of the wrongdoing;
C) The position of the defendant; and
D) The consequences for the victim.

It is important to find a range of compensation that is aimed at remedying the type of injuries that the plaintiffs have suffered, and not to borrow from damage awards aimed at remedying an altogether different type of injury or different type of interest infringed.

As stated in Stations de la vallée de St-Sauveur inc. v. M.A., 2010 QCCA 1509, at para 83, the goal is to locate horizontal comparisons not with the type of conduct for which the defendants are liable, but with the type and context of the suffering endured by the plaintiffs. The Court is to “treat like cases alike and unlike cases differently in this fact-driven exercise. This allows for comparisons between the seriousness of injuries, without the judge becoming a prisoner of past
findings by other courts, while at the same time giving full scope to a personalized analysis of each victim’s own situation.”

Justice Morgan stated that there should be uniformity to general damage awards for comparable cases and that trial courts do not have an unlimited scope to award general damages as they see fit. As the Court of
Appeal has warned, “damages awarded [that are] so inordinately high…call for this
Court’s interference.”

Finally, he emphasized that one must look beyond the procedurally unusual nature of the case to the substance of the claims to accurately determine general damages.

Damages Cap

Justice Morgan stated that the policy considerations underlying the damages cap for general damages do not apply because of the suis generis nature of the case. Unlike the ubiquitous nature of motor vehicle accidents, the social cost of a damages award in a unique case such as this is not the same as one in which the insurance industry must continuously spread losses throughout a society in which the vast majority of drivers are insured. Further, there is no concern for double compensation because there is no cost of care claim.

The appellate courts have repeatedly held that claims concerning breach of fiduciary duty and intentional wrongdoing are not limited by the cap established in Andrews. The policy reasons that arose in that case, are not present in fiduciary duty claims.

The unique context of the wrong, the intentionality of the wrongdoer, and the fact that there are few, if any, social costs or society-wide insurance implications to the claim, negate the rationale for a damages cap.

D.S. v. Quesnelle, 2019 ONSC 3230

The plaintiff sought damages for historical physical and sexual abuse by his stepfather. As of the time of trial, the defendant had been criminally convicted of assault, sexual assault, and sexual interference, which the civil trial court relied on to establish liability for the intentional torts alleged by the plaintiff. The court accepted that the abuse caused the plaintiff to sustain psychological injuries. The court considered the applicability of the cap on non-pecuniary damages, and held that it does not apply to intentional torts. The court awarded the plaintiff non-pecuniary damages totaling $400,000 in addition to damages for economic loss.