COURT FILE NO.: 160/03

DATE: 20030326

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O'DRISCOLL, HEROLD and LINHARES DE SOUSA JJ.

B E T W E E N:

ABORIGINAL LEGAL SERVICES OF TORONTO et al.

Applicants

• and -

SHAND INQUEST (CORONER OF)

Respondent

Kim Murray and Clem Nabigon, for ALST

Julian Falconer and Julian Roy, for the family of Patrick Shand

Kevin McGivney and Adriana De Marco, for the Respondent Coroner, Dr. B. Porter

Wayne Morris and Gillian Eckler, for Loblaws Canada

Anne Walker, for Messrs. Gentile and Moore, Employees of Loblaws Canada

Lise Favreau, for Brinks

Mark B. Harrington and Dean Sgouromitis, for Wackenhut

HEARD: March 26, 2003

O'DRISCOLL J.: (Orally)

1At the opening of submissions on this application for judicial review, without having filed any written notice of motion or written material, counsel for ALST, with the Shand family counsel seconding the motion, brought an application seeking an order that the law firm of Borden Ladner Gervais LLP (Borden Ladner) be removed as counsel and solicitors for the respondent, Dr. B. Porter, the presiding Coroner.

2As the material discloses, Loblaws Canada has standing at the inquest because the facts surrounding the death of Mr. Shand took place on, at or near a Loblaws store located in the Agincourt Mall. At a standing hearing earlier this year, the Coroner made an order that two employees of Loblaws, who were on the scene, namely, Mr. Victor Gentile and Mr. Donald Moore, were to have separate standing from their employer at the inquest. That order of separate standing was made by the Coroner against the wishes of the two employees.

3When served with the papers on this judicial review application by counsel for ALST on Friday last, the Coroner retained the law firm of Borden Ladner. There is no evidence before us, nor do we infer, that the Coroner knew that Borden Ladner, for several years, has done the corporate legal work for Loblaws. There is no evidence that Borden Ladner has acted for Loblaws on this file nor have they had anything to do with this inquest until retained by the Coroner.

4As a result of Borden Ladner having acted for Loblaws over the years, the moving parties submit that an order should go removing Borden Ladner as counsel for the Coroner, not on the basis of any actual conflict, but on the basis of a possible perception by the public that there might be a conflict.

5In Cook v. Young, unreported, November 8, 1989 (Ont. H.C.J.), the Court upheld an order of Coroner Young refusing to disqualify the same counsel from representing several police officers and their police force at an inquest into the death of Tracy Cook. At p. 543 of Re Booth and Huxter (1994), 16 O.R. 528, the majority of the Court referred to Cook v. Young (supra) and said:

"In deciding the issue, Coroner Young referred to the reasons of Dubin J.A. (now C.J.O.) in the case of R. v. Speid (1983), 43 O.R. (2d) 596, where, at p. 600, His Lordship said:

Mr. Speid has a right to counsel. He has a right to professional advice, but he has no right to counsel who, by accepting the brief, cannot act professionally. A lawyer cannot accept a brief if, by doing so, he cannot act professionally, and if a lawyer so acts, the client is denied professional services."

Immediately thereafter the coroner made the following observations which I adopt:

"Does this situation apply to inquests? As we heard in submissions, inquests are different, in focus, scope and rules from any other proceeding. But the same rules of fundamental or natural justice and fairness must be observed and must be seen to be operating at an inquest. Quite rightly it has been pointed out that inquests do not find fault or legal responsibility, rather they are fact-finding exercises. However, disputes regarding evidence, which might impact, for example on the reputation of an individual, can arise at an inquest. Therefore, it seems to me that a potential conflict in a lawyer's position is a valid consideration, although because of the non-fault-finding and unique nature of an inquest, the test to remove such a lawyer might well be of a higher nature."

Coroner Young then referred again to the reasons in Speid, supra, and quoted the following extract from p. 598:

"In assessing the merits of a disqualification order, the court must balance the individual's right to select counsel of his own choice, public policy and the public interest in the administration of justice and basic principles of fundamental fairness. Such an order should not be made unless there are compelling reasons."

6In this case, when this Coroner ordered that Loblaws and its employees were to have separate standing, she said:

"I am aware of the seriousness of the decision to direct a party with standing to choose separate representation. It is to be respected that an individual has the right to retain counsel of their own choice and, absent compelling reasons, the courts should not interfere with that decision.

In my opinion the most appropriate test is the proper functioning of the process and the maintenance of public confidence. An inquest is a public process in which the administration of justice and the fairness of the process will be closely scrutinized.

There must be a full and frank airing of the circumstances that preceded Mr. Shand's death and all parties must be free and be seen to be free to act without any encumbrances.

In Booth v. Huxter the court upheld the decision of the coroner on the basis of "potential" conflict. In this case, the conflict has the appearance on the basis of the evidence to be real and actual."

7This is one of those occasions where reality does not govern but the governing factors are perception and optics. It is a matter of the maintenance of public confidence in the administration of justice and the avoidance of any appearance of impropriety. It is on this basis alone that we feel obliged to make the order sought.

8In all of the circumstances, this is not a case for costs.

9I have endorsed the back of the application record as follows: "For the oral reasons given for the Court by O'Driscoll J., order to go that the firm of Borden Ladner to be removed from the

record as counsel, in these proceedings, for the Coroner. No order as to costs. The new counsel for the coroner and the remaining counsel are to confer with the Registrar and obtain a new date for the judicial review hearing."

___________________________

O'DRISCOLL J.

___________________________

HEROLD J.

___________________________

LINHARES DE SOUSA J.

Date of Reasons for Judgment: March 26, 2003

Date of Release: March 31, 2003

COURT FILE NO.: 160/03

DATE: 20030326

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O'DRISCOLL, HEROLD and

LINHARES DE SOUSA

B E T W E E N:

ABORIGINAL LEGAL SERVICES OF TORONTO et al.

Applicants

• and -