-Caveat Lector- <A HREF="http://www.ctrl.org/"> </A> -Cui Bono?- Court File #98 CV 006618 SUPERIOR COURT OF JUSTICE Tuesday, February 29, 2000 Case Management Master Robert Beaudoin BETWEEN Dorothy Mills Proctor Plaintiff and Her Majesty the Queen in Right of Canada, George Scott, Institute of Psychotherapy Limited, and Mark Eveson Defendants Appearances: James Newland for the plaintiff, Dorothy Proctor Jeffrey Mutter for the defendant, George Scott Linda Wall for the Attorney General of Canada and Mark Eveson REASONS FOR DECISION Master Robert Beaudoin: Preliminary Matters: This is a motion by the plaintiff for an order striking the statement of defence of the Attorney General of Canada for failing to comply with this courts' orders and for failure to produce all documents that are relevant to matters in issue in this litigation. The motion seeks the production of particular records, an order requiring the Attorney General of Canada to deliver a sworn affidavit of documents and an order substituting Ole Ingstrup for Liz Baylis as the designated representative of the Attorney General of Canada on any examination for discovery. The plaintiff also seeks a re-attendance of the defendant Mark Eveson on his examination for discovery at his own expense and an order complelling the Attorney General of Canada to forthwith pay the plaintiff's costs thrown away. This motion was originally returnable on November 18, 1999. The defendant, George Scott, seeks similar relief. In support of her pending motion, the plaintiff served summonses to examine six witnesses including Ole Ingstrup the Commissioner of Correctional Services of Canada. The plaintiff also sought to serve Lawrence MacAulay, the Solicitor General of Canada, with a summons to witness by substituted service. Ms. Wall, on behalf of the defendant the Attorney General of Canada, brought a cross-motion returnable on November 10, 1999 to set aside these summonses. In support of that motion she filed two affidavits, namely that of one Lynn Baylis and of one Janis Gardner. In their respective affidavits, Ms. Baylis and Ms. Gardner attested to the lack of knowledge of Messrs. MacAulay and Ingstrup and made reference to numerous documents. Ms. Baylis was cross-examined on November 12, 1999 although she failed to produce the documents referred to in her affidavit. On November 18, 1999 as a result of motions brought by the plaintiff and the defendant, Dr. Scott, this court ruled that Ms. Baylis would have to re-attend to be cross examined on her affidavit and to produce the documents in question subject to any claims of privilege. This order is also applied to the other affiant, Janis Gardner. The motion was adjourned to Monday, November 22, 1999 to address the privilege claims. At the same time, the court ordered substituted service of the summons to the witness Lawrence MacAulay by ordering that service could be affected on Ms. Wall. After reviewing the documents all but two of these documents were produced. As a result of the failure to produce these documents at the cross examination, the court ordered this defendant to pay to the plaintiff her costs, thrown away in the examination of Ms. Baylis as well as the costs of the motion fixed in the amount of $3877.31 which sum was ordered payable forthwith. The court further ordered that counsel for the defendant Dr. Scott also be awarded his costs, which were fixed in the amount of $500.00. Cross examinations of Ms. Baylis and Ms. Gardner were ordered to take place on November 25, 1999 and November 26, 1999 and the plaintiff's original motion and the cross motion to quash the summonses were adjourned to December 7, 1999 to be heard at 10.00 am. On that date the court questiioned the parties as to the need to examine the various witnesses on the pending motion. The court noted that there was already a significant amount of evidence before the court that relevant documents had not been produced. The court indicated to the parties that it was prepared to proceed with the disposition of the relief sought in the plaintiff's original motion without the necessity of determining whether or not these further witnesses ought to be examined. The parties agreed to proceed with the argument on that basis. Background: This is a claim for general, special punitive and aggravated damages against the defendants arising from a period in the early 1960's when the plaintiff was a seventeen year old inmate at the prison for women in Kingston, Ontario. At that time, she had been the subject of LSD and electroshock experimentation. As a result of the said experimentation, the plaintiff claims to have suffered serious, irreparable physical and psychological damage which has rendered her incapable of experiencing any enjoyment in life or at obtaining or keeping any gainful employment. This action was commenced in July of 1998; over thirty-five years after the initial events, which gave rise to this cause of action. On August 12, 1998, Mr. Newland, on behalf of the plaintiff wrote to John Edmond, then counsel for these defendants, and indicated his concerns with respect to timely documentary discovery having regard to the length of time that had transpired since the events in question and having regard to the numerous documents that might be produced. At a case conference held on September 12, 1998, this court ordered the parties to produce their affidavit of documents by November 30, 1998. The Court order specifically provided that affidavits of documents would be delivered at that time. No one objected to the use of that term. Subsequently, the McGill Centre for Ethics released its own repoert on the LSD experimentation on inmates and Mr. Edmond retired from the Department of Justice. New counsel, Ms. Wall, became involved on November 16, 1998. She expressed concerns about her client's ability to produce the documents requested by the deadline set by the court. Some documents were produced. At a further case conference held on December 11, 1998, this court made a further order deferring the referral to mediation. On February 2, 1999 this defendant produced eleven more documents. On February 23, 1999, plaintiff's counsel sought more documents as he became aware of the Correctional Services of Canada (hereinafter referred to as CSC) having conducted a review of various documents located in the National Archives. At a case conference held on March 29, 1999, this court amended the previous timetable by requiring that a further affidavit of documents be delivered by April 30, 1999. Ms. Wall delivered a document entitled "List of Documents". No one objected to that form of document at that time. As of that date, the Attorney General of Canada produced a total of 181 documents. Subsequently, the plaintiff conducted examinations of the defendant Mark Eveson, for two days in Toronto on May 10, 1999 and May 11, 1999 and of the defendant George Scott in Kingston for three days on July 12, 1999, July 13, 1999 and August 16, 1999. At the examination of Mr. Eveson, he was questioned with respect to a document entitled "Comments on the Letter from the Commissioner of Penitentiaries to the Superintendent of this Institution re: Narcotic Addiction dated October 30, 1961". Mr. Eveson denied authoring this document and the plaintiff was unable to question him further about it on the basis of his flat denial of authorship. As Mr. Eveson had authored other papers on LSD experimentation, Mr. Newland directed the plaintiff to attend at Natiional Archives and she was able to locate a memo of Isabel McNeil which stated that the letter in question was in fact written by Mr. Eveson. She also discovered a number of file folders whose documents had been removed. As a result of these discoveries, the plaintiff's counsel became increasingly concerned that numerous relevant documents in the possession of these defendants had not been produced. In addition, he learned that various requests for production of documents under the Access to Information Act had been made and that some of these had been completed by the CSC prior to August 1999 and that some of these requests were still pending. Moreover, he learned that there had been historical records located by a working group of the CSC which working group had been formulated response to this action and in response to the McGill report. As a result, Mr. Newland wrote to the CSC Access to Information officer and requested that the CSC immediately provide all documents which had previously been provided pursuant to these other previous requests. There was some delay in producing these, but in the end, some four (4) volumes of material were produced to the plaintiff. Within these documents the plaintiff discovered a number of documents, which were not only relevant to this action, but were prejudicial to the defendant and which had not been disclosed in this defendant's list of documents. The plaintiff then brought this motion. Another two (2) volumes of new material were produced in the cross-examinations of Ms. Baylis and Ms. Gardner. Documentary Discovery: The basic requirements of documentary discovery are set out in Rule 30.02(1). That rule provides: Every document relating to any matter in issue in an action that is or that has been in the possession, control or power of a party to the action shall be disclosed as is provided in rule 30.02, 30.10, whether or not privilege is obtained in respect of the document. The scope of documentary discovery is broad; requiring the parties to produce documents that "relate to" any matter and issue. In assessing the scope of discovery, the starting point is a review of the pleadings in the actioin. They must be read in their entirety, one has to examine the issues raised not only in the statement of claim but also those that are found in the statement of defence and in any reply. In her claim, the plaintiff raises, in paragraphs 11 through 17, allegatiions of negligence and breach of fiduciary duty arising from the LSD experimentatioin. In paragraphs 18 through 22, she addresses the institutional response of the CSC to her complaints and to its own investigation regarding the allegations of the LSD and electroshock experimentation at the prison for women. It is alleged that a Board of Inquiry recommended that the plaintiff receive an apology and that the CSC develop a compensation package for her and other inmates involved in the experimentation. In addition to damages for assault and battery, she seeks damages for breach of fiduciary duty, intentiinal infliction of mental suffering, punitive, aggravated and exemplary damages. These defendants deny many of the allegations and plead a number of limitation periods. They also address the issue of the institutional response. In paragraph 24 of their amended Statement of Defence these defendants state that the CSC referred the question of the alleged use of LSD and electroshock therapy of the prison for women to the McGill Centre for Medicine, Ethics and Law for further study and advised that the report had been received in September of 1998. In reply, the plaintiff refers specifically to the findings of the McGill report and its recommendations that these defendants institute a program to notify victims of the experimentation in order to provide them with medical assistance and psychological counselling. >From a reading of the pleadings as a whole there are two clear issues in dispute: Firstly the claims arising from the LSD experimentation during the relevant times and secondly, the claims arising from the institutiional response of the CSC to the plaintiff's complaints. Documents relating to these issues span two distinct periods separated by a significant period of time. There is no doubt that documentary disclosure would be a daunting task under the circumstances. The court recognized this in granting these defendants additional time to prepared their affidavit of documents. Nevertheless, the CSC has been aware of this potential claim since 1995, when Dorothy Proctor contacted the then Solicitor General of Canada to raise the issue of LSD experimentation at the prison for women in the 1960's. In order to respond to her inquiries to the then Solicitor General Herb Gray, must have caused some searches of documents to be made; memos, letters, correspondence and records had to have been made or reviewed in response to her inquiries. These documents were initiated long before there was any litigation commenced or contemplated yet none of these memoranda or records were produced. As a result of her enquiries, the CSC conducted its own board of investigation into the LSD experimentation and arrived at certain conclusions. In the course of its own investigation, the CSC had to locate and identify a number of significant records. The McGill Centre, in preparation for its report, would have had to make inquiries to relevant documents. As the issue caught the public's attention, the matter of the LSD experimentation became the subject of a motion in the House of Commons. That motion, Motion B56, dated November 27, 1998, was made by Mr. Marceau on behalf of the Bloc Quebecois, was for: "...copies of all documents, reports, notes, memorandums, letters, correspondence and minutes of meetings regarding the use of inmates of federal institutions as guinea pigs in experiments on the effects of LSD and, in particular, the report commissioned by the Solicitor General of Canada for the McGill Centre for Medicine, Ethics and Law..." In response to that motion, Mr. MacAulay indicated that a number of the records could not be produced and cited a number of statutory provisions which exempted their production. Moreover, in his response to the House, he indicated that these documents were related to the legal proceedings in Ontario Court (General Division), as it then was, brought by Dorothy Proctor against the Crown and therefore could not be produced. During the same time period, the CSC had undertaken yet a further response to the McGill Report. This response included a further archival review of the documents in question; a bibliographic review of the literature available and it convened a panel of experts to review the Centre's recommendations. It also appears from the affidavit of Ingrid Stack, sworn on the behalf of these defendants, that the CSC engaged a private firm, Public History Inc. to assist them in their search for the documents. It is clear that numerous processes have been in place over the past four or five years to identify documents that might relate to the issue. Only 181 of these have been produced; the overwhelming majority of these are limited to records prior to 1964. No documents were produced with respect to other inmates or with respect to the entire issue of the institutional response of the CSC. Four volumes of materials were received that were generated as a result of the freedom of information request of the CSC's own working group. Most of these are not listed in the affidavit of documents. I was because so many other documents were obtained by the plaintiff herself or were produced in the context of these motions that this court suggested that the motionproceed on the merits without any further examination of witnesses. The responding affidavits of Ingrid Stack and of Karen Kelly, filed on behalf of the defendant Attorney General, are curiously not responsive to the very serious allegations of non-disclosure raised in the affidavits of Mark A. Mason and Dorothy Proctor in support of this motion. They contain a recital of all the steps that were taken to find documents or lists of the procedures in place to catalogue them. Their affidavits fail to adequately explain why so few documents were produced. Ms. Wall, on behalf of these defendants, accepted responsibility for directing that the scope of inquiry be as narrow as it was she who indicated that those parties restrict their search around parameters that she had drawn. Crown's Obligation of Documentary Discovery: On the return of this motion, and for the first time, this defendant has insisted on the right to file a list of documents instead of the customary affidavit as required under Rule 30. It relies on the Crown Liability and Proceedings Act R.S.C. 1985 Chapter C-50 and related regulations S.O.R./86-88s.8, which provide: (1) Subject to sectioins 37 to 39 of the Canada Evidence Act where the Attorney General or an agency of the Crown, would, if the Crown were a private person, be required under the provincial rules to file or serve the list of an affidavit of documents, the Deputy Attorney General shall, subject to the same conditions as applied between the subject and the subject, file and serve a list of the documents relating to the matter in which the Crown has knowledge within 60 days after the event that under the Provincial rules gives rise to the obligation to file or serve the list or affidavit or, within such further time as may be allowed by the court. No authorities on the effect of this legislation were submitted to the court. On an initial review of this section, it appears that the requirement of serving an affidavit of documents is removed by this regulation and that, in addition, the federal crown is given an additional 60 days to file and serve the list of documents; which is a longer period of time than what is provided for under the rules. The court notes however, that the requirement that the Deputy Attorney General serve a list of documents is also "subject to the same conditions as applied between subject and subject". At the heart of documentary disclosure is a requirement that the lawyers certify their obligations and that the deponent swear to the accuracy of the contents. There is nothing in section 8 that would remove the obligation from counsel to certify as to the content of the documents nor is there anything in section 8 which would remove the requirements of the party preparing the list to swear as to its accuracy. In this court's view, this regulation simply provides an additiional period of time to complete documentary discovery and creates a standard term for the document produced regardless of which provincial rules might apply. The court notes that no objection was taken by these defendants to produce an affidavit of documents when it made its orders in September of 1998, and again in March of 1999. As indicated, the court learned of this statutory provision for the first time on the hearing of this motion. It is curious that these defendants appear to rely on this statutory provision to limit their discovery obligations while at the same time attempting to quash the summonses to witnesses on this motion. In the absence of an affidavit swearing to the accuracy of the affidavit, the sanctions under Rule 30.06 are not otherwise available and an opposing party is left with no other remedy but to sommons potential witnesses if that party believes that the list of documents is not complete. Although it was not necessary for the court to decide this point, the court would have had no choice but to refuse to quash the summonses issued by the plaintiff. Given the serious allegatiions against these defendants of willful and deliberate non-disclosure, it is curious that the Crown would now rely on this statutory provision, presumably to avoid the consequences of its failure to disclose. The court accordingly orders these defendants to make better documentary discovery. If the Crown insists that that document shall be styled, "A List of Documents", it may do so, subject to the same terms and conditions as between "subject and subject" namely that their counsel certify that he or she has discharged its obligations pursuant to the rules and that the Deputy Attorney General or whichever party prepares the list as swears to the accuracy of the list as required by the rules. Should the court not be correct in its interpretation of that regulation, the court nevertheless relies on its power pursuant to Rule l.05: "...to impose such terms and give such directions as are just..." Conclusions: The court canot help but express its dismay at the lack of production made by this defendant notwithstanding the history of the proceedings that have taken place with respect to the matters in issue. This plaintiff was able, on her own, to attend at the National Archives and obtain a copy of a highly relevant document, one which the defendants claimed to have no knowledge of and that the CSC's dedicated team of researchers was unable to find. It is hard, under the circumstances, to resist the conclusion, that the CSC's refusal to disclose these documents is not a result of a deliberate attempt to delay these proceedings and to discourage this elderly, impecunious plaintiff from proceeding further. Ms. Wall, to her credit, accepts responsibility for the final document that was produced. Nevertheless, the court cannot avoid a consideration of the comments of others with regard to the CSC and production of records. The CSC's Board of Investigation report dated January 8, 1998 stated (at p.25): "We conclude that the access to administrative and inmate files has been unsatisfactory. The time elapsed is lengthy and some inmate files may be unavailable because the inmates have passed their 70th birthdays or been granted pardons. Nevertheless, it is discouraging that two thirds of the inmate files requested are not available. The inability to obtain relevant administrative files and most inmate files make it impossible to provide a full account of the use of LSD or ECT at the Prison for Women." The McGill Centre's report dated September 19, 1998 stated (at p. 162-63): "Our review of the use of LSD and of ECT and the Prison for Women before 1962 has been severely limited by the unavailability of a range of information and documentation regarding the use of LSD and ECT at the Prison for Women and uncertainty about other information and documentation. This was also a serious problem for the Board of Investigation ... The missing information includes a lack of docomentation of the process whereby inmates were informed about the researchuse of LSD and consented to be research subjects, as well as information and documentation on the use of electroconvulsive therapy at the Prison for Women, in particular the treatment of Ms. Proctor." The court was also referred by Mr. Newland to the comments of Madame Justice Arbour when she conducted her own inquiry at the Kingston Prison for Women, albeit on a different issue. In her report at pages 171 to 172, she commented: "I recognize that the task of document production to this Commission was a considerable and difficult task and that some individuals worked very hard to assist in the timely discharge of this obligation. However, the Correctional Service does not appear to have an effective system for locating and retrieving relevant documents. This is particularly disturbing given the amount of effort which goes into the creatiion of a mass of documentation which, if it cannot be adequately retrieved, is of little value. The identification and production of relevant documents is an activity which any organization involved in civil litigation is required to discharge in a more effective and timely fashion than the Correctional Service, a pillar of the criminal justice system, managed to achieve in the context of this federal inquiry. Even if there was no system in place at the time to facilitate the task of document production, steps should have been taken at the senior levels of the Correctional Service to ensure that enough appropriate people were involved in the production process, that guidance was sought and given about the concept of relevance and that the legal duty of production was discharged in a manner consistent with the known timeframe within which the Commission had to operate." These comments appear to hold true in this particular instance. Notwithstanding the requirements of our rules and the orders made by this court to properly disclose relevant documents, this defendant has chosen to take an unreasonably myopic view of the requirements of documentary disclosure. Although the court is tempted to strike the defendants statement of defence, it will not do so. It will however require the defendant to compensate the plaintiff for her costs thrown away to date as well as the costs of their co-defendant, Mr. Scott, whose counsel has brought a motion seeking identical relief. Mr. Scott is now some 84 years of age. He's been examined for 3 days. As is now deposed before the court, much of that examinatiion will have to reoccur since many of the relevant documents were not available at the time of his discovery and many questions will have to be answered and many answers corrected. Both counsel for Mr. Scott and for the plaintiff have prepared detailed bills of cost in support of their positions. The court had indicated to Ms. Wall that iw ould give her an opportunity to respond to these bills of costs should the court make such an order. Accordingly, the court allows the respondent 10 days from the date of this roder to arrange an appropriate time to speak to the issue of the costs. The court at that time will establish a further timetable for the completion of documentary disclosure and for further oral examinations for discovery. The plaintiff seeks to examine Ole Ingstrup instead of Liz Baylis. Curiously, the defendant's responding material does not address this issue. Ms. Wall states simply the plaintiff has not provided the court with satisfactory evidence that Ms. Baylis should be replaced by Mr. Ingstrup. Generally speaking, the courts are reluctant to interfere with a party's prima facie right to name the representative to be examined pursuant to rule 31.03(2). In this case this defendant had proposed that Ms. Liz Baylis be the designated representative of the Attorney General of Canada on this examinatiion for discovery. Ms. Baylis is the director of general performance measurement at the Attorney General's office. Ms. Baylis coincidentally was in charge of liaison and documentary production to the Arbour inquiry. Having regarding to the defendant's failure to supply a sworn affidavit of documents; the lack of disclosure to date; the evasive material filed in response to the motion and the admittedly narrow view that these defendants have taken of this litigation, the court concludes that the moving party has met the onus upon it to substitute Mr. Ingstrup as the person to be examined in the place and instead of Ms. Baylis. This court will so order this substitution unless this defendant can, within 10 days of this roder, propose another representative who is reasonably well informed as to the matters in issue and can obtain the necessary cooperation of the CSC in producing the relevant documents. Dated at Ottawa this 29th Day of February, 2000. SIGNED MASTER ROBERT BEAUDOIN <A HREF="http://www.ctrl.org/">www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are not allowed. Substance—not soap-boxing! 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