COURT FILE NO.: 665/04
DATE: 20050111
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
o’driscoll, kiteley and benotto jj.
B E T W E E N:
STEVEN HANLEY
Applicant
- and -
DR. DAVID EDEN, CORONER
Respondent
T.S.B. Danson, for the Applicant
J. Olah for Craigleith Ski Club
P.J. Pliszka for Bombardier Recreational Products
K.G. Crompton for the Ontario Snow Resorts Association
C. O’Donnell and D. Carruthers, for the Respondent, Dr. Eden
W. Teggart for the family of the late Moira Caswell
HEARD AT TORONTO: January 7, 2005
THE COURT:
I. Nature of the Proceedings
[1] Counsel for the Applicant, Steven Hanley, seeks judicial review, under s. 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J. 1, of the December 3 and 15, 2004 orders of the Respondent Coroner, Dr. David Eden. The Applicant seeks:
(a) an order quashing the inquest,
(b) an order removing Dr. David Eden, Regional Supervising Coroner of Operations, St. Catharines, Ontario, from being the presiding coroner at the inquest based on a reasonable apprehension of bias,
(c) an order prohibiting any Coroner from issuing a summons requiring Steven Hanley to attend and give evidence at the inquest,
(d) an order prohibiting the present or any coroner from proceeding with an inquiry into a potential disqualifying conflict of interest of the Applicant’s counsel, T.S.B. Danson,
(e) an order adjourning the inquest, scheduled to commence on January 17, 2005, and, after a new coroner is assigned, an order that a new date for the inquest be set.
[2] Paragraph [1] of the factum of counsel for the Applicant states, in part:
… the principal objective of this judicial review is to quash or adjourn the January 17, 2005 commencement date for the inquest.
[3] Counsel for Craigleith Ski Club commenced a similar application for judicial review of the December 3 and 15, 2004 orders of Dr. Eden (02/05). However, in a letter, dated January 5, 2005, to the Registrar of the Court, advised that he would “not be proceeding with its application”.
[4] The judicial review application was heard on January 7, 2005.
[5] A preliminary motion was brought by counsel for the Craigleith Ski Club (Craigleith) seeking the reception of the affidavit of Jeff Courtemanche, General Manager of Craigleith, sworn January 2, 2005. After opening the sealed envelope with the agreement of counsel, and after reading the affidavit and hearing submissions of all counsel, for reasons endorsed on the motion record, it was held that “in the circumstances of this case, we are prepared to admit the affidavit for our consideration, reserving, however, whether or not it has any weight as to the issues that we have to decide on this judicial review. Costs reserved”. We are of the view that only paragraphs 2-6 inclusive, could be classified as “new material”.
[6] On January 7, 2005, the court heard submissions from counsel for the Applicant. The submissions of counsel for the applicant were adopted, supported and augmented by counsel for Craigleith, counsel for Bombardier Recreational Products (Bombardier) and counsel for The Ontario Snow Resorts Association (OSRA).
[7] After a recess late in the afternoon of January 7, 2005, the Court announced that it would not be necessary to hear from counsel for the Coroner nor from counsel for the Caswell family because the members of the Court were unanimously of the view that the application failed and should be dismissed.
[8] We advised counsel that our reasons would be delivered at 9:30 a.m. on January 11, 2005 and at that time the issue of costs would be addressed. We advised counsel that if costs were awarded, these costs would be fixed.
II. The death giving rise to the Inquest
[9] On March 2, 2003, the Applicant, Steven Hanley, was the operator of a large Bombardier grooming machine which came into contact with and caused the death of the late Madam Justice Moira Caswell, while she was on the slopes of the Craigleith Ski Club, located in the Town of Blue Mountain, Ontario.
III. Chronology
(a) March 2, 2003 – date of death of the late Madam Justice Caswell.
(b) May 29, 2003 – Dr. Karen J. Acheson, Regional Supervising Coroner for Central West Ontario, Guelph, Ontario, announced that an inquest had been called into the death of the late Madam Justice Caswell. The announcement stated: “a date for the inquest has not been set”.
(c) On a date after May 29, 2003 and prior to September 24, 2003 – Dr. Acheson exercised the authority vested in her, the Coroner, under s. 30(1) of the Coroners Act, R.S.O. 1990, c. C. 37 and s. 3(1) of Regulation 180 made under the Coroners Act and notified the Crown and every person the Coroner believed may be substantially and directly interested in the inquest of the date, time and place of the inquest, namely: January 12, 2004 at 9:30 a.m. at the Town of Collingwood Council Chambers, 97 Hurontario Street, Collingwood, Ontario. Dr. Acheson advised that Dr. P.G. Savage would preside at the inquest.
[10] In his affidavit, sworn November 29, 2004, Steven Hanley deposes, in part:
- …I am advised by my counsel Timothy Danson and verily do believe that he has requested a copy of the Notice of Holding of Inquest for January 12, 2004, but has only received a draft press release from the Coroner’s Office confirming this date. I am aware that prior to the November 21, 2003 pre-inquest meeting that the inquest had in fact been scheduled for January 12, 2004.
[11] The draft press release “for Release: December, 2003” obviously is to awaken public awareness of the January 12, 2004 date on which the inquest was to commence and postdates “notification” to those “interested” in the inquest.
(d) September 24, 2003 – Dr. P.D. Savage, the proposed presiding coroner, sent out a notice to interested parties of a pre-inquest meeting to be held on November 21, 2003, at the Collingwood General and Marine Hospital in order to canvass the witnesses to be called and the issues to be covered at the inquest.
(e) November 21, 2003 – Dr. P.D. Savage conducted the pre-inquest meeting and adjourned the inquest to March 22, 2004.
[12] In his affidavit, sworn November 29, 2004, the Applicant, Steven Hanley, deposed, in part:
- …. I am advised by Timothy Danson, Jeff Courtemanche and Brian Bone and verily do believe that at this meeting the Coroner, through his counsel [then Mr. E. Meijers] took the view that the inquest had to proceed in January because it was essential that it be convened early in the ski season in order to have maximum exposure and impact on the public. I am further advised that Mr. Danson expressed the view that “maximum impact” was not a legitimate or appropriate reason to conduct the inquest in January and in any event it was a false argument which operated on a false premise. I am further advised by Mr. Danson and verily do believe that he expressed the view, in any event, that this could not trump principles of natural justice and other overriding and legitimate concerns such as the safety issue.
[13] In his affidavit, sworn December 2, 2004, Roger G. Oatley, counsel for the Caswell family, deposed:
Shortly after we were retained, Ralph Caswell advised me that a Coroner’s Inquest was scheduled to commence on January 12, 2004. He advised that the inquest was to last one week. As a result, I booked this time to attend the inquest.
We attended a preliminary meeting in Collingwood on November 21, 2003. At this time, Dr. Savage adjourned the Inquest to March 22, 2004.
The Inquest was primarily adjourned because of a pending Ministry of Labour investigation. We were advised that there was a memorandum of understanding between the Coroner’s office and the Ministry of Labour. The understanding was that inquests should not proceed until the expiration of the limitation period for the Ministry of Labour to lay charges. The limitation period was one year.
As a result of the adjournment, I booked the week of March 22, 2004 to attend the Inquest.
(f) December 8, 2003 – Dr. Acheson wrote to counsel for the Applicant and other “interested parties” and said:
As you know, the inquest into Mme Justice Caswell’s death will not proceed on January 12, 2004 as scheduled because the Ministry of Labour has now indicated their interest in the case and by law they have a year from the death to investigate and to lay charges if they consider them warranted. Madam Justice Caswell died on March 2, 2003. The Ministry of Labour has until March 1, 2004 to make their decision.
It is my understanding from Dr. Savage that the parties attending the pre-inquest meeting agreed on March 22, 2004 as the start date for the inquest. Unfortunately the inquest cannot proceed on that date even if the Ministry of Labour does not lay charges because a suitable venue for the inquest has not been found and Dr. Savage will no longer be the presiding coroner for this inquest.
I have been directed to preside at this inquest because the number of parties who wish to apply for standing is significantly greater than expected and the inquest may therefore be longer and more complicated than part-time presiding coroners are expected to handle. I am not available the last two weeks of March of this year.
No date for this inquest will be set until the Ministry of Labour has made a decision about charges. If charges are laid, the inquest will not be held until the courts have dealt with the matter. If no charges are laid the inquest will be held early in the 2004/2005 ski season.
(g) April 2, 2004 – counsel for the Applicant wrote to Dr. Acheson and said, in part:
As you know, I am general counsel for Craigleigh Ski Club and its Board of Directors. At the inquest I will be representing Mr. Steven Hanley, the operator of the groomer.
The time period within which the Ministry of Labour had to make a decision to lay charges has lapsed, and a decision was taken not to lay any charges.
According to your letter of December 8, 2003 you indicated that in the event that no charges were forthcoming, the inquest would be held early in the 2004/2005 ski season.
The same safety concerns remain and therefore, if it continues to be your intention to schedule the inquest early in the ski season, rather than the latter part of March 2005, then we respectfully ask that we be heard on the matter prior to any date being set. Moreover, given the concerns stated by all counsel at the November 21, 2003 pre-inquest meeting, we would respectfully submit that all counsel be consulted prior to a date being set.
As you can appreciate, the Club takes this inquest very seriously and Mr. Hanley and Mr. Courtemanche’s presence at the inquest is imperative. Neither individually nor collectively can they be away from the club early in the season without compromising safety. It would be a serious matter if there was another accident at Craigleith because key personnel were at the inquest rather than doing their jobs.
(h) April 13, 2004 – Dr. Acheson wrote to counsel for the Applicant, acknowledging his letter of April 2, 2004 and said, in part:
I do not accept your implicit assertion that keeping Craigleith Ski Club running at scheduled times is more important than this inquest. If the club feels that it is not safe to operate without the on-hill presence of the persons you named, then the club must take appropriate steps to replace them or close.
I also do not accept your suggestion that I hold a meeting or teleconference of all counsel in order to set a date for the inquest. I will continue with the regular practice of the Coroner’s office. I will select a date based on the availability of the crown, the police, myself and a suitable location. Parties who may wish to ask for standing will receive ample notice of the time and place of the inquest.
(i) May 18, 2004 – the widower (Ralph), daughter (Steise) and son (Thomas) of the late Madam Justice Caswell commenced a lawsuit alleging negligence on the part of Craigleith Ski Club and Steven Hanley in the death of their wife and mother. The lawsuit claims damages of $3.9 million.
(j) A Notice of Holding of Inquest, dated June 22, 2004 – this document was sent out to “interested parties” stating, in part:
“Take notice that an inquest will be held at The Town of Collingwood (Municipal Office) on the 17th day of January 2005, at 9:00 o’clock in the forenoon into the death of Moira Caswell”.
(k) September 3, 2004 – counsel for the Applicant wrote to Dr. Acheson and said, in part:
I will be engaged in a trial in British Columbia commencing January 17, 2005, which is scheduled to last approximately two weeks. For this reason alone I must respectfully request an adjournment of the inquest. The nature of the proceedings in British Columbia is such that I have no options. That is, I must be in attendance.
In his affidavit (supra), Steven Hanley deposes:
- I am advised by Timothy Danson and verily do believe that he cannot provide public details of the legal proceedings that he is involved in out in Vancouver on the basis of solicitor/client privilege. I am aware from my discussions with Mr. Danson that the date of the trial in Vancouver was formally scheduled after the date the Coroner unilaterally set the date for the inquest, however, prior to the inquest date being set, Mr. Danson was aware that the date that was set in the Vancouver proceedings was a high probability.
(l) September 7, 2004 – Dr. Acheson wrote a letter to counsel for the applicant and said, in part:
Thank you for your letter of September 3, 2004. I am sorry that you have two clients with conflicting needs respecting your attendance. I understand that a date has been set for a trial in British Columbia for the same dates as those already set for the inquest into the death of Mme. Justice Moira Caswell. I do not accept your premise that since you have another client for whom you have agreed to act, the inquest must be rescheduled to suit your calendar of commitments. I note that you have partners in your law firm. Perhaps one of them would be prepared to assist you with one of your commitments.
(m) September 22, 2004 – Mr. David Carruthers, replacing Mr. E. Meijers, as counsel to Dr. Acheson, wrote to counsel for the Applicant and other “interested parties” advising that a pre-inquest meeting would be held at 10:00 a.m. on October 18, 2004 at the Council Chambers, 97 Hurontario Street, Collingwood, Ontario.
(n) September 23, 2004 – counsel for the Applicant wrote a letter to counsel for Dr. Acheson and said, in part:
My trial commitments in Vancouver commencing January 17, 2004 [sic] cannot be changed and I and I alone must attend on that matter.
(o) October 18, 2004 – the pre-inquest meeting was held as scheduled with all parties in attendance who anticipated standing at the inquest. Dr. Acheson and her counsel made it clear that a request for an adjournment was not open for discussion and the inquest would proceed on January 17, 2005
(p) By way of a Notice of Motion, dated November 29, 2004, supported by the affidavit of Steven Hanley, sworn November 29, 2004, counsel for the Applicant brought a motion to be heard on December 3, 2004 before the Coroner, at the Coroner’s Court, 15 Grosvenor Street, Toronto, seeking:
(i) an order granting formal standing to Steven Hanley at the inquest,
(ii) an order quashing the inquest,
(iii) an order removing Dr. Acheson as the presiding coroner because of a reasonable apprehension of bias,
(iv) thereafter, after a new coroner is assigned, that all the parties be consulted as to the new date for the start of the inquest,
(v) in any event, an order adjourning the inquest to a new date agreed upon by all the parties.
(q) December 1, 2004 – counsel for the Applicant served and delivered the affidavit of Steven Hanley, sworn November 29, 2004.
(r) December 2, 2004 – counsel for the Coroner faxed a letter to counsel for the Applicant in which he confirmed the December 3, 2004 application date and advised that Dr. Acheson would no longer be the presiding coroner and was replaced by Dr. David Eden, Regional Supervising Coroner of Operations with an office in St. Catharines, Ontario. Mr. Carruthers further wrote:
Dr. Eden has asked me to ensure that Mr. Steven Hanley, the author of the affidavit contained in the applicant’s material be present at the application for the purposes of cross-examination and that any employment documents or records relating to or substantiating Mr. Hanley’s and Mr. Jeff Courtemanche’s daily attendance at the ski club be provided from December 15 to March 30 for the years 2001-2002, 2002-2003 and 2003-2004.
(s) December 2, 2004 – counsel for the Applicant wrote a letter to counsel for the Coroner and said, in part:
Respectfully, the request of the Coroner is simply impossible to comply with at such a late date, and with all due respect, it is extremely unfair.
(t) December 2, 2004 – Roger G. Oatley, counsel to the Caswell family, swore his affidavit (supra).
(u) December 3, 2004 – the motion proceeded before Dr. David Eden, Coroner. Steven Hanley did not attend nor did Jeff Courtemanche and thus Steven Hanley could not be cross-examined on his affidavit, sworn November 29, 2004. The employment records of Messrs. Hanley and Courtemanche requested in the December 2, 2004 letter of counsel for the Coroner were not produced.
[14] In his reasons at page 11, Dr. Eden wrote: “…December 2nd letter, contained 2 requests: Mr. Hanley’s availability for cross-examination, and production of certain employment records. The latter was dealt with by a joint submission from all counsel, through Coroner’s Counsel, which I accepted, that the records requested could not reasonably be available for the hearing, and that the hearing could proceed fairly in their absence”. However, in view of the time of year (Dec. 3) and statements in his November 29, 2004 affidavit (supra), the Coroner expressed surprise and dismay that Mr. Hanley did not attend the hearing.
[15] A 210 page transcript of the proceedings on December 3, 2004 shows that the proceedings commenced at 9:30 a.m. and ended at 6:40 p.m. For the most part, after each issue was argued, the Coroner rendered his decision and stated (p. 49): “reasons to follow”.
(v) December 15, 2004 – Dr. D. Eden, Coroner, released his reasons (33 pages).
(w) December 17, 2004 – this application for judicial review was launched by counsel for the Applicant.
(x) The factum of counsel for the Applicant is dated December 22, 2004 and filed in the Divisional Court office on December 24, 2004. It states:
The applicant’s choice of counsel was Timothy Danson. Mr. Danson is not available in January as he is involved in a trial commencing January 17, 2005 in Vancouver. As stated in paragraph 30 above, the applicant has provided his reasons why it is essential that his right to counsel of choice not be abridged [sic].
[16] Nowhere does the applicant’s factum state that Mr. Danson’s presence in Vancouver, B.C. on January 17, 2005 is no longer required. Nor is there any supplementary factum or letter to that effect.
[17] The factum of counsel for the Coroner states:
- As Mr. Danson’s litigation in British Columbia has resolved, and he is now available for the inquest commencing on January 17, 2005, the issue of the applicant’s right to counsel of his choice and the related arguments are moot.
(See also paragraph [73] of the factum of counsel to the Coroner).
[18] During his submissions, Mr. Danson did not challenge or even mention paragraph 4 of the factum of counsel to the Coroner. We accept paragraph 4 as factual.
IV. Relevant Sections of the Coroners Act, R.S.O. 1990, c. C. 37 (“The Act”)
s. 20 When making a determination whether an inquest is necessary or unnecessary, the coroner shall have regard to whether the holding of an inquest would serve the public interest and, without restricting the generality of the foregoing, shall consider,
(a) whether the matters described in clauses 31(1)(a) to (e) are known;
(b) the desirability of the public being fully informed of the circumstances of the death through an inquest; and
(c) the likelihood that the jury on an inquest might make useful recommendations directed to the avoidance of death in similar circumstances.
s. 30(1) Every coroner before holding an inquest shall notify the Crown Attorney of the time and place at which it is to be held and the Crown Attorney or a barrister and solicitor or any other person designated by him or her shall attend the inquest and shall act as counsel to the coroner at the inquest.
s. 31(1) Where an inquest is held, it shall inquire into the circumstances of the death and determine,
(a) who the deceased was;
(b) how the deceased came to his or her death;
(c) when the deceased came to his or her death;
(d) where the deceased came to his or her death; and
(e) by what means the deceased came to his or her death.
(2) The jury shall not make any finding of legal responsibility or express any conclusion of law on any matter referred to in subsection (1).
(3) Subject to subsection (2), the jury may make recommendations directed to the avoidance of death in similar circumstances or respecting any other matter arising out of the inquest.
s. 46 An inquest may be adjourned from time to time by the coroner of his or her own motion or where it is shown to the satisfaction of the coroner that the adjournment is required to permit an adequate hearing to be held.
s. 47 A coroner may make such orders or give such directions at an inquest as he or she considers necessary for the maintenance of order at the inquest, and, if any person disobeys or fails to comply with any such order or direction, the coroner may call for the assistance of any peace officer to enforce the order or direction, and every peace officer so called upon shall take such action as is necessary to enforce the order or direction and may use such force as is reasonably required for that purpose.
s. 50(1) A coroner may make such orders or give such directions at an inquest as the coroner considers proper to prevent abuse of its processes.
Regulation 180 made pursuant to the Coroners Act:
s. (1) A coroner before holding an inquest shall notify every person designated as a person with standing at the inquest and every person the coroner believes may be substantially and directly interested in the inquest of the date, time and place of the inquest.
[19] In Beckon v. Beckon Inquest (Coroner of) (1992), 1992 7707 (ON CA), 93 D.L.R. (4th) 161, 177 (Ont. C.A.); affirming 1990 8049 (ON SCDC), 70 D.L.R. (4th) 136 (Div. Ct.), Morden A.C.J.O. said:
The legal basis of a coroner’s inquest is in the Coroners Act and it has no other basis. The common law component of coroner’s proceedings has been abolished: Coroners Act, s. 2(1). Having regard to its legislative history, it is not reasonable to interpret the Act as conferring any more powers respecting inquests than those prescribed by it: see the Ontario Law Reform Commission’s Report on the Coroner System in Ontario, 1971, at p. 35.
[20] In M.A.S. (Litigation guardian of) v. Ludwig, [2004] O.J. No. 3909, the Court of Appeal for Ontario has reiterated that s. 42(1) of the Coroners Act renders testimony from an inquest inadmissible in a civil action.
V. When is a superior court entitled to intervene in a coroner’s inquest?
[21] In People First of Ontario v. Porter, Regional Coroner Niagara (1991), 1991 7198 (ON SC), 5 O.R. (3d) 609, [1991] O.J. No. 3389 (Div. Ct.): reversed on other grounds by Ont. C.A.: (1992), 6 O.R. (3d) 389, the Divisional Court said at page 32 (Q.L.):
The legislative assembly provided no appeal to this court from the decision of the coroner. This court is entitled to intervene solely for jurisdictional error. A serious error in legal principle which produces an unfair inquest would amount to a jurisdictional error. But it is not every aspect that attracts judicial review. As Chief Justice Dubin pointed out in Evans v. Milton (1979), 1979 1820 (ON CA), 24 O.R. (2d) 181 at p. 220, 97 D.L.R. (3d) 687, it is not every step taken in the convening of the inquest, or every ruling made during its preliminary stages, or at the inquest itself, that is subject to judicial review.
The public interest requires that the coroner be able to go about her job without interference by the courts, particularly on issues within the specialized medical and curial expertise of the coroner.
If inquests were conducted by judges or lawyers or royal commissioners, they would have a more legalistic or policy focus. The unique value of an inquest is that it is conducted by men and women with a medical orientation who bring to their task their medical experience and their situation-sense of patients, families, illnesses, medical record confidentiality, medical institutions, and medical care.
[22] In Sears Canada Inc. v. Davis Inquest (Coroner of), [1997] O.J. No. 1424, (Div. Ct.), Adams J. said:
[11] Dealing then with the motion to quash, this court has repeatedly said that it will not intervene during the course of proceedings of an inferior tribunal except in exceptional circumstances (citations omitted). …This approach is based on the reason that the work of these important bodies would otherwise become irreparably fragmented and delayed with both single and multiple trips “up the judicial ladder”. Indeed, this concern is of particular importance in the context of a Coroner’s inquest where there is a pressing public need to know and often much immediate personal anxiety and emotional trauma. The exception to this procedural deference is where an application for judicial review raises serious concerns, which if they materialized, would likely result in a fundamental failing of justice.
[12] It has been held that the Coroner is master of his or her procedures. Inquest proceedings can become very complex and emotional, as this inquest reveals. A court should not be asked to simply second guess the procedural rulings of these experienced officials. A coroner is much closer to the issues at hand and more knowledgeable about the mission of these important proceedings.
[13] In Booth v. Huxter (1994), 1994 10535 (ON SC), 16 O.R. (3d) 528, it was held that a coroner had jurisdiction to remove a counsel in appropriate circumstances under both s. 50(1) and s. 41 of the Coroners Act R.S.O. 1990, Ch. 37. Section 50(1) provides that a coroner may make such orders or give such directions at an inquest as he considers proper to prevent abuse of the inquest processes. Section 41 was interpreted to mean every person with standing at an inquest has the right to be represented by counsel who can act professionally. Similarly, in MacDonald Estate v. Martin 1990 32 (SCC), [1990] 3 S.C.R. 1235, it was pointed out, in the context of a court proceeding involving a solicitor/client relationship, that it is fundamentally important that justice not only be done, but appear to be done in the eyes of the public. Thus, where choice of counsel and perceived fairness of a proceedings collide, fairness and justice must prevail.
[23] In Stanford v. Harris (1989), 38 Admin. L.R. 141, [1989] O.J. No. 1068, (Div. Ct.), A.G. Campbell J. (for the majority) said at p. 11 (Q.L.):
There is no appeal from the coroner’s decision on standing and the first question is what standard of review this court should apply in scrutinizing the decision.
The standard of review obviously does not involve a power in this court to substitute its own view for that of the coroner on the basis only that the court, in the position of the coroner, would have reached a different decision.
The coroner is faced with a very difficult task and must be afforded a sufficient degree of insulation from review. He must have the power to keep the inquest from turning into a circus and the power to prevent every busybody from using the inquest as a platform for their particular views. Applications for judicial review should be discouraged as they detract from the coroner’s ability to control the proceedings and they produce delay.
Some cases in this court, such as Re Brown and Patterson No. 2, supra, describe the standard of review as that of error in principle.
p. 13 (Q.L.)
This private law approach fails to give effect to the dominant public interest function of the inquest which involves public scrutiny and recommendations about those conditions which may have caused or contributed to the death of a member of the community.
[24] In Black Action Defence Committee v. Huxter (1992), 1992 7695 (ON SC), 11 O.R. (3d) 641, 691 (Div. Ct.), Adams J. said: “a decision of a coroner will not be reviewed where there is no evidence on the record to suggest that the coroner acted “improperly, unfairly or unreasonably”.
VI. Issues before the Divisional Court
A. The refusal of the Coroner, Dr. David Eden, to grant an adjournment of the Inquest scheduled for January 17, 2005.
[25] Under s. 30(1) of the Act (supra), and s. 3(1) of Regulation 180 (supra), the Coroner is obliged to select a date for the commencement of the inquest and “notify” the interested parties of that date.
[26] The Concise Oxford Dictionary defines “notify”: “(often foll. by of, or that + clause) inform or give notice to (a person). 2. make known; announce or report (a thing)”.
[27] In our view, the “start date” is a decision for the coroner. His or her choice of a “start date” or an “adjourned date” (s. 46) prevails unless the record before the Court demonstrates that to proceed on the date selected by the coroner would result in a fundamental failure of justice.
[28] In this case, Dr. Acheson selected January 12, 2004 as the start date. According to the affidavit of Mr. Hanley, at the November 18, 2003 pre-inquest meeting, Dr. P.D. Savage and his counsel (Mr. Enno Meijers) took the view that the inquest had to proceed in January, 2004, early in the ski season, in order to have maximum exposure for the inquest and maximum impact on the public. In the same affidavit, Mr. Hanley refers to two reasons for delaying the inquest. First, the Ministry of Labour had not completed its investigation and had until March 1, 2004 to do so. Second, counsel for Craigleith and for Mr. Hanley took the position that Mr. Courtemanche (on behalf of Craigleith) and Hanley both intended to attend throughout the inquiry. However, Mr. Courtemanche (as General Manager) and Mr. Hanley (as Operations Manager) are both required to be at the Club to make decisions “often minute by minute during the day concerning hill safety’. In the interests of the safety of users of the Club in “the most critical month in the ski season”, counsel asserted that the inquest ought to be conducted outside of peak ski season. There are no written reasons that indicate the basis upon which Dr. Savage adjourned the inquest to March 22, 2004.
[29] In her letter of December 8, 2003, the Coroner (Dr. Acheson) advised that “if no charges are laid the inquest will be held early in the 2004-2005 ski season”. On June 23, 2004, the parties were notified by Dr. Acheson of the January 17, 2005 start date of the inquest.
[30] In her correspondence with Mr. Danson, Dr. Acheson rejected Mr. Danson’s efforts to persuade her to adjourn the inquest to March, 2005 based on the safety issues.
[31] On December 3, 2004, a considerable part of the day was devoted to the request by counsel for Craigleith and for Mr. Hanley to adjourn the inquest to March, 2005.
[32] It is unfortunate that Coroners have been involved serially in the pre-inquest proceedings: Dr. Acheson, Dr. Savage, Dr. Acheson and Dr. Eden. As a result, the adjournment issue that had been canvassed and resolved in November, 2003 with one Coroner had to be re-canvassed with two subsequent coroners. Having said that, Mr. Hanley and Craigleith have had the opportunity to make submissions on the public safety issue at considerable length. While Dr. Savage may have been inclined to agree, he also had the compelling circumstances of the Ministry of Labour investigation.
[33] Counsel have pointed out that in reviewing the reasons for and against the adjournment, some of the factors listed by Dr. Eden were not consistent with the record. Even accepting that argument, there still remains sufficient grounds to support the decision not to adjourn. We are not persuaded that Dr. Eden’s decision to continue with the January 17, 2005 commencement date would cause a fundamental failure of justice. We are not persuaded that Dr. Eden made a jurisdictional error.
[34] If we accept, and we do, the words of the 1971 report of the Ontario Law Reform Commission that:
The death of a member of society is a public fact, and the circumstances that surround the death, and whether it could have been avoided or prevented through the actions of agencies under human control, are matters that are within the legitimate scope of all members of the community,
then, in this case, the coroner is within her/his rights under the Coroners Act in choosing a “high season” date for the start of the inquest rather than an “off season” date.
[35] In the absence of a valid reason to the contrary, the coroner is entitled to choose the “start date” of an inquest, although subsequent events may necessitate a change to the chosen date.
[36] In our view, there is no requirement that a coroner hold a meeting or seek unanimity from all interested parties before she/he notifies the interested parties of the date chosen for an inquest. The “start date” is not a battle of wills. By statute and regulation, the coroner selects the date of the inquest, subject to being later persuaded, for a valid reason, to change the date. If the date set out in the “notification” would bring about a fundamental failure of justice, it is up to the party or parties affected to move to have the date changed. The rules of natural justice require that the parties be given an opportunity to be heard about the request to adjourn. The parties were heard. As Dr. Eden said, “the right to be heard does not mean the right to prevail”.
[37] Of course, all the submissions by way of letter and the oral submissions before Dr. D. Eden on December 3, 2004, that Mr. Hanley would be denied counsel of his choice, if the inquest started on January 17, 2005 are now for naught. Mr. Danson, in the words of the coroner, Dr. Eden, “knowingly double-booked himself” (Reasons: p. 29). The coroner also found that “as of the date the hearing was set, counsel was available for the hearing date”. No other counsel claims to have a scheduling problem.
[38] After the release of the coroner’s reasons on December 15, 2004, and long before the judicial review application was argued before us, “Mr. Danson’s litigation in British Columbia has resolved” and this line of argument evaporated. Thus, Mr. Danson is available for a January 17, 2005 inquest start date.
B. The motion to remove the Coroner, Dr. D. Eden based on an apprehension of bias.
[39] In Committee for Justice and Liberty et al. v. National Energy Board (1976), 1976 2 (SCC), 68 D.L.R. (3d) 716, 735 (S.C.C.), although he dissented in the result, de Grandpré J.’s test of apprehension of bias has become the litmus test:
The proper test to be applied in a matter of this type was correctly expressed by the [Federal] Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right-handed persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal [at p. 667], that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.
[40] In Toronto (Metropolitan) Police Services Board v. Young, [1998] O.J. No. 4736 (O.C.A.), the appeal was allowed and the Court of Appeal adopted the dissent of Sharpe J. in the Divisional Court [1997] O.J. No. 1076, where he said:
[86] …The test for determining whether there is a reasonable apprehension of bias is objective. The question is not to be resolved on the subjective perceptions of the party alleging bias. The assessment must take into account all relevant factors, including the nature of the legal duties imposed.
[41] One aspect of this submission is that the coroner(s) created an apprehension of bias when the application for an adjournment was refused. This is a “house of cards” argument and is inextricably bound up with the adjournment application. In view of our earlier reasons, nothing more need be said of this aspect of the apprehension of bias submission.
[42] Counsel for the Applicant also alleges apprehension of bias because Dr. D. Eden requested Mr. Hanley’s presence and the employment records of Messrs. Hanley and Courtemanche at the December 3, 2004 hearing. Reading the affidavit of Mr. Hanley, sworn November 29, 2004 and served on December 1, 2004, and seeing how it was the centre piece of the Applicant’s application, it escapes us how such a request could evoke allegations of “apprehension of bias”. Indeed, if counsel for the coroner had insisted upon cross-examination of Mr. Hanley on his affidavit, instead of agreeing to proceed on the record as it existed, the December 3, 2004 motion would have had to have been adjourned. We see no basis for such an allegation on this branch of the submission.
[43] Finally, counsel for the Applicant and counsel supporting the application, submit that when Dr. D. Eden, sui motu, raised the issue of a possible conflict of interest on the part of Mr. T. Danson, he, Dr. Eden, “entered the arena” and created an apprehension of bias.
[44] When Dr. D. Eden read the record filed on the December 3, 2004 motion, no doubt he read Mr. T. Danson’s letter of April 2, 2004, addressed to Dr. K.J. Acheson. The opening paragraph states:
As you know, I am general counsel for Craigleith Ski Club and its Board of Directors. At the inquest I will be representing Mr. Steven Hanley, the operator of the groomer.
[45] No doubt Dr. Eden’s antenna would have gone up when at p. 18 of the Transcript for December 3, 2004, Mr. T. Danson is recorded as saying:
To think that my client, a corporate entity like – well, Craighleith, because Craigleith owns those records, that they could get four years of records and being asked to do so the afternoon prior to the hearing is not realistic.
[46] A discussion involving all counsel and the Coroner took place from p. 56: line 7 to p. 80: line 12 of the Transcript about possible conflict of interest on the part of Mr. T. Danson. Dr. Eden concluded that “based on information currently available” to him “there is an adequate evidentiary foundation to support further inquiry into the matter”. He established a schedule for written submissions which required Mr. Danson to begin the process by providing information about his retainer by Craigleith.
[47] The coroner is charged with the responsibility of seeing that the inquest is in all ways proper. He had a right to ask the questions he did ask.
[48] However, on reading those 24 pages of transcript, it is apparent that as of December 4, 2004, no one was seeking an order disqualifying Mr. Danson. Indeed, Dr. Eden was advised by his own counsel that that very issue had been canvassed at the pre-inquiry meeting in November, 2003 and that Dr. Savage had been satisfied based on the advice by his counsel that there was no conflict. Counsel appeared to have agreed that the scope of the inquest was sufficiently narrow that even a theoretical conflict would not occur. When he raised the issue on December 3rd, 2004, Dr. Eden did not have sufficient material upon which to act on his own motion. His direction to Mr. Danson to disclose information about his solicitor/client relationship with Craigleith was unreasonable and constituted a jurisdictional error.
[49] It is our view that Item 3 on p. 32 of the Coroner’s reasons should be set aside. However, it must be understood that the issue of conflict of interest regarding Mr. Danson (or any counsel) may emerge on new information during the course of the inquest. If it does, the coroner would then deal with that question if proper notice is given and proper materials are placed before him.
[50] In Booth v. Huxter (1994), 1994 10535 (ON SC), 16 O.R. (3d) 528, [1994] O.J. No. 52, the majority of the Divisional Court said at p. 6 (Q.L.):
The coroner arrived at his conclusion despite assurances from Mr. Archibald that (a) no conflict of interest existed as between the police officers and the Board; and (b) no conflicting recommendations would be put to the jury.
In my opinion, irrespective of Mr. Archibald’s assurances, it was open to the coroner, acting reasonably and dispassionately, to conclude as he did that (a) there already existed on the record before him evidence and information from which it could be inferred that the position of the officers might well come into conflict with that of the Board regarding systemic issues surrounding the death of Mr. Donaldson; and (b) there existed the real prospect that, as the inquest proceeded, the gap between these positions would widen: R. v. Speid (1983), 1983 1704 (ON CA), 43 O.R. (2d) 596, 8 C.C.C. (3d) 18 (C.A.), and R. v. Silvini (1991), 1991 2703 (ON CA), 5 O.R. (3d) 545, 68 C.C.C. (3d) 251 (C.A.).
See: p. 6 – p. 14 of the judgment.
[51] In Sears Canada Inc. v. Davis Inquest (Coroner of), supra, Adams J. said:
[13] In Booth v. Huxter (1994), 1994 10535 (ON SC), 16 O.R. (3d) 528, it was held that a coroner had jurisdiction to remove a counsel in appropriate circumstances under both s. 50(1) and s. 41 of the Coroners Act R.S.O. 1990, Ch. 37. Section 50(1) provides that a coroner may make such orders or give such directions at an inquest as he considers proper to prevent abuse of the inquest processes. Section 41 was interpreted to mean every person with standing at an inquest has the right to be represented by counsel who can act professionally. Similarly, in MacDonald Estate v. Martin 1990 32 (SCC), [1990] 3 S.C.R. 1235, it was pointed out, in the context of a court proceeding involving a solicitor/client relationship, that it is fundamentally important that justice not only be done, but appear to be done in the eyes of the public. Thus, where choice of counsel and perceived fairness of a proceedings collide, fairness and justice must prevail.
C. The Charter
[52] Although the Charter was mentioned in the Applicant’s material, counsel for the Applicant has not served the required notice under s. 109(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 and is thus not eligible for any remedy or declaration in that regard.
VII. Result
[53] The application is dismissed save for the order concerning Item 3 on p. 32 of the Coroner’s reasons.
[54] In reaching the conclusions we have reached, we are not to be taken as adopting the Coroner’s reasons. With the exception of the conflict of interest issue, we have simply concluded that the coroner had the jurisdiction and authority to make the orders he made and the jurisdiction to refuse to make the orders that he declined to make.
VIII. Costs
[55] Counsel are to speak to costs at 9:30 a.m. on January 11, 2005.
O’Driscoll J.
Kiteley J.
Benotto J.
Released:
COURT FILE NO.: 665/04
DATE: 20050111
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’driscoll, kiteley and benotto jj.
B E T W E E N:
STEVEN HANLEY
Applicant
- and -
DR. DAVID EDEN, CORONER
REASONS FOR JUDGMENT
THE COURT
Released: January 11, 2005