COURT FILE NO.: 440/03

DATE: 20030929

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MCRAE, DUNNET AND JENNINGS JJ.

B E T W E E N:

THE CANADIAN CHIROPRACTIC ASSOCIATION and the CANADIAN MEMORIAL CHIROPRACTIC COLLEGE

Applicants

• and -

DR. BARRY MCLELLAN, Coroner

Respondent

Timothy S.B. Danson, for the Canadian Chiropractic Association and the Canadian Memorial Chiropractic College

Brian A. Foster, for Dr. Emanuelle

Peter Rosenthal, for Amani Oakley

Thomas Marshall and Sandra Di Ciano, for the Coroner

HEARD: September 29, 2003

DUNNET J.: (Orally)

1This is an application for judicial review of two decisions of the coroner presiding over the inquest into the death of Lana Dale Lewis. The applicants moved under ss.41 and 50(1) of the Coroners Act for the removal of the Lewis family’s counsel, Amani Oakley, for professional misconduct and abuse of the process of the Court. In his decision of June 27, 2003, the coroner ruled that he did not have authority to remove counsel of record for unprofessional conduct.

2The applicants then sought a remedy under s.51(c) of the Act requiring the coroner to state a case for contempt to this Court. In his ruling of July 10, 2003, the coroner determined that he was:

“not convinced that the ‘essential elements of interference with, or calculation to interfere with, due administration of justice’ have been present or, that ‘deliberate or intentional conduct, or conduct which demonstrates interference’ has been demonstrated at this inquest.”

3The coroner found that a prima facie case for contempt had not been established and he did not, therefore, have to consider whether to exercise his discretion in referring the matter to the Divisional Court. He added that he would:

“continue to diligently monitor the conduct of counsel until the completion of the inquest, being cognizant that a prima facie case may be established based on a single episode of conduct or on the cumulative effect of conduct at the inquest”.

4Ms. Lewis died on September 12, 1996 at the age of 45. On August 26, 1996, she received a chiropractic neck adjustment. On September 1, she suffered a stroke and was admitted to hospital. She was released from hospital on September 6, and on September 10, she suffered a second stroke. She was readmitted to hospital and died two days later.

5The central issue at the inquest is the cause of death. Expert evidence has been called that supports not only the family’s position that there is a strong likelihood that death was a complication of chiropractic manipulation but also the applicants’ position that Ms. Lewis died of natural causes unrelated to chiropractic neck manipulation.

6The inquest began on April 22, 2002 and has heard approximately 75 days of evidence and 14 days of motions. The last witness testified on December 19, 2002. The inquest is scheduled to resume before the jury on October 14, 2003.

7The applicants submit that the Coroners Act authorizes the coroner to remove barristers and solicitors who are guilty of professional misconduct. As this is a jurisdictional issue, the standard of review is one of correctness.

8The applicants rely on ss.41 and 50(1) of the Act for the proposition that the coroner has the jurisdiction to remove counsel of record for unprofessional conduct to prevent an abuse of its process. Further, Mr. Danson relies upon Booth v. Huxter, (1994) 1994 ONSC 10535, 16 O.R. (3d) 528 (Div. Ct.) at pp. 541-544 where Moldaver J., speaking for the majority, held that he found it difficult to accept that under no circumstances, irrespective of the nature or type of disqualifying conflict, could a coroner make a removal order under s.50(1) of the Act to prevent an abuse of his process.

9Moldaver J. went on to say that minimally, where the conflict involves the public interest, such that counsel’s continued joint representation would tend to undermine the public confidence in the administration of justice and the integrity of the process, the coroner should be able to act under s.50(1) to cure the defect.

10Later on in his reasons, at p. 544, he states that even if his assessment of the coroner’s jurisdiction under s.50(1) is incorrect, the coroner nonetheless possessed the power to order the removal of counsel for conflict of interest pursuant to s.41.

11We are of the view that Booth v. Huxter has limited application to the facts of this case. There the majority of the Divisional Court was speaking of the coroner’s power when dealing with fundamental conflicts of interest. In our view, his authority cannot be extended to remove counsel for professional misconduct alleged to have been committed in the course of the inquest.

12The legal basis of a coroner’s inquest is found in the Act. See Beckon v. Beckon Inquest (Coroner of) (1992), 1992 ONCA 7707, 93 D.L.R. (4th) 161 (Ont. C.A.) at p. 177. Section 50(3) provides that a coroner may exclude from a hearing anyone, other than a barrister or solicitor qualified to practice in Ontario, appearing as agent advising a witness if the coroner finds that such person is not competent properly to advise the witness or does not understand and comply at the inquest with the duties and responsibilities of an advisor.

13Given the clear wording of the statute, we are of the view that there is no power, express or implied, in the Act to disqualify lawyers, whether acting for a witness or a party with standing, for unprofessional conduct. Should the issue arise, s.51 of the Act specifically requires that the power to commit for contempt be referred to a Superior Court for determination.

14Further, as a matter of policy, coroners do not possess the inherent jurisdiction of Superior Courts to remove counsel for misconduct. The practice of law is a self-governing profession. There is an expectation that lawyers will act professionally when they appear before courts, inquests and tribunals. Unprofessional conduct of counsel is a matter for the Law Society of Upper Canada. This does not detract, however, from the discretionary authority of the coroner to control his own process. See, for example, ss.44(1), 47, 50(1) and 50(2) of the Act.

15Accordingly, the coroner’s ruling that he did not have the authority to remove counsel did not constitute jurisdictional error.

16In Stanford v. Harris (1989), 3 C.P.C. (2d) 161 (Div. Ct.), Campbell J. states at p.173:

The coroner is faced with a very difficult task and must be afforded a sufficient degree of insulation from review. Applications for judicial review should be discouraged, as they detract from the coroner’s ability to control the proceedings, and they produce delay.

17The applicants submit further that the coroner committed jurisdictional error in his articulation of the legal test under s.51 of the Act. Section 51(c) of the Act provides that a decision to state a case for contempt is within the absolute discretion of the coroner.

18Considerable curial deference is to be accorded to coroner’s decisions, especially where the decision in question is within his sole discretion. In a judicial review application brought earlier in the course of this inquest to deny standing, this Court found that, absence a serious error in principle that results in a denial of natural justice, curial deference accorded to a decision of a coroner is easily explained by the experience and expertise they bring to their duties and as well by their special understanding of the Act and the public interest enshrined therein.

19In this case, the coroner reviewed an eight-volume motion record and a number of legal authorities provided in support of the motion. He considered the definition of contempt and the elements that reviewing courts have considered essential in making determinations of contempt. He obviously took into account the alleged disregard for his rulings. He considered whether a prima facie case for this extraordinary remedy had been made out and whether to exercise his discretion to refer the matter to the Divisional Court. Finally, he considered his own observations and experience throughout the inquiry. We are satisfied that there was evidence to support his conclusion. We see no error in his articulation of the legal test under s.51 of the Act.

20The coroner has had the opportunity to observe the conduct of counsel throughout the inquest and he has determined that Ms. Oakley’s conduct, at least to this point in the proceedings, has not justified an exercise of his discretion to make a reference of contempt to the Divisional Court.

21It is evident from their submissions that the parties wish a timely and efficient resolution of this inquest, bearing in mind the role of the coroner to control and safeguard the process in the interest of fairness to all parties.

22In his ruling, the coroner states that he will continue to diligently monitor the conduct of counsel, aware that a prima facie case may be established on the basis of a single episode or on the cumulative effect of conduct at the inquest.

23For these reasons, the application is dismissed.

MCRAE J.

24I have endorsed the record as follows: “The application is dismissed. Oral reasons delivered by Madam Justice Dunnet. In the circumstances of this case, there will be no order as to costs.”

MCRAE J.

DUNNET J.

JENNINGS J.

Date of Reasons for Judgment: September 29, 2003

Date of Release: October 2, 2003

COURT FILE NO.: 440/03

DATE: 20030929

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT