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Legal action against local institutions offers glimpse inside the walls; 'We had nowhere to run'

'The stories of the survivors got out. We want the world to know that places like this are wrong, they’re wrong for everybody'
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Marilyn Dolmage painfully read the details of how some patients at the former Oak Ridge psychiatric institution in Penetanguishene — now called Waypoint — were treated.

It’s yet another Simcoe County institution whose patients or residents endured years of abuse in the past.

At Oak Ridge, the extreme treatment was referred to as torture.

An Ontario Superior Court judge has found the province and two psychiatrists liable for using pain as an instrument in “experimental forms of therapy” on 28 patients between 1966 and 1983 and “breaching their fiduciary duties and by perpetrating assault and battery."

At the hands of their keepers, the patients in the maximum-security psychiatric institution on Asylum Point were given drugs, including the hallucinogen LSD, subject to a strict physical disciplinary regime, and locked naked in an isolation cell, which also included the use of hallucinogenic drugs.

Justice Edward Morton’s judgment came in June, 20 years after the case was first presented to the courts. By then, only 20 of the patients suing were still alive to hear the decision.

A spokesperson for Ontario Attorney General Doug Downey said the decision is being carefully reviewed as the government considers whether or not to appeal.

Just the same, the case isn’t hasn’t reached its final conclusion. A hearing on damages has yet to be scheduled, with the total value of the award anticipated to be in the millions of dollars.

Dolmage served as litigation guardian for Marie Slark in another local high-profile institutional abuse case: Orillia’s Huronia Regional Centre (HRC). The facility housing thousands of people with a developmental disability has weaved in and out of Dolmage’s life since the death of her brother there 60 years ago.

Dolmage started her career as a social worker at HRC where she met Slark, a resident who was physically, sexually and emotionally abused over the many years she lived there.

They, as well as many of the residents involved in that class-action, are torn about the legal process they used to seek justice.

Other victimized residents of Simcoe County institutions — the Sheila Morrison School for learning disabilities in Utopia between Barrie and Angus, as well as the Adult Occupational Centre in Edgar, near Horseshoe Valley — also used the class-action process. 

The striking difference in those institutional abuse cases that happened in our backyard is that all, with the exception of the Oak Ridge case, were class-actions.

Oak Ridge was also the only one that went to trial, while the remaining cases were settled.

“Right to the last day we believed we were going to trial,” said Patricia Seth, who was sent to HRC in 1964 when she was seven years old. 

Like others who lived there, Seth wanted to tell the court about what she had endured as a child and then as a young adult.

“The staff got protected by their union. We didn’t have a union to protect us; we had nowhere to run,” said Seth, now 62 and living in an apartment in Toronto. “We have beautiful freedom now.”

When the Oak Ridge suit was launched in 2000, it did start life as a 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. In addressing the breach of fiduciary duties, he was “not satisfied that degrees of power imbalance and vulnerability can be determined otherwise than on an individual basis.”

His decision may well have been prescient.

Class-actions are a relatively young legal approach. The idea is to provide a group of people who have been harmed by an organization some redress. Those cases typically involved product liability — like a car part deemed to be deficient, but not worth the bother for one person to sue over or for the courts to hear hundreds or thousands of cases dealing with the same issue. 

But a British Columbia case opened the door to using class-actions for abuses that occurred in institutions across the country over the years.

The principal objectives of class-actions identified by the Supreme Court of Canada is the efficiency of having the court hear one complaint from many people, deterring organizations from repeating the offending behaviour and providing a group of people access to justice.

But how they’ve been used in the past may not reflect how they’ll be used in the future, at least in Ontario.

There is anticipation that changes to Ontario’s not-quite-30-year-old Class Proceedings Act, which received Royal Assent earlier this month, is introducing more stringent rules and could limit their use. That’s either a good thing or a bad thing, depending on your perspective.

For those who have used class-actions to address historic cases of abuse in institutions, the jury is out about whether or not they were effective and achieved the goals of the class members.

“It was hard. We didn’t get everything we wanted,” said Slark, a former HRC resident who's now 66 years old and living in Toronto.  “I think it’s worth it, because people are listening to us now about what happened.”

But when asked if she would choose the route of a class-action again, Seth replied: “Not after what we went through.”

Dolmage also expressed some disappointment over the HRC class-action process and its results. The class members, she said, have no power, unlike individual lawsuits where the lawyers follow the direction of their clients. And the payouts were also low.

On the other hand, the voices of the residents, many of whom had been abused for years, were finally heard and, importantly, believed. And the class included all the former residents, including those who could not speak and say what happened to them.

“I still think it’s worthwhile, because the stories of the survivors got out,” said Dolmage. “We want the world to know that places like this are wrong, they’re wrong for everybody.”

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About the Author: Marg. Bruineman, Local Journalism Initiative

Marg. Buineman is an award-winning journalist covering justice issues and human interest stories for BarrieToday.
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