COURT FILE NO.: 442/05

DATE: 20060301

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o’driscoll, chapnik and swinton jj.

B E T W E E N:

JACOB PAUL and MARY PAUL

Applicants

• and -

ATTORNEY GENERAL FOR ONTARIO

Respondent

Joseph Markin, for the Applicants

James Kendik, for the Respondent

HEARD at Toronto: March 1, 2006

swinton J.: (Orally)

1The applicants have brought an application for judicial review seeking a declaration that the Coroners’ Council complete its deliberations with respect to a complaint filed by them dated August 10, 1995.

2The functions of the Coroners’ Council were set out in s.7(1) of the Coroners’ Act, R.S.O. 1980, c.93:

“7(1) The functions of the Coroners’ Council are,

(a) to review and recommend to the Minister the termination of the appointments of coroners who are not actively performing the duties of coroners;

(b) to receive complaints respecting the misbehaviour or incompetence of or neglect of duty by coroners or the inability of coroners to perform their duties; and

(c) to take such action to investigate complaints as it considers advisable including the review thereof with the coroner where appropriate, and, after giving the coroner an opportunity to be heard, to make such recommendations to the Minister with respect thereto as it sees fit.”

3The Coroners’ Council was abolished by the Red Tape Reduction Act, 1998, S.O. 1998, c.18, Sched. B. At the time of the abolition, the Coroners’ Council had not yet disposed of the applicants’ complaint. The Act did not grandfather existing proceedings.

4Pursuant to s.4(1)(b) of the Coroners’ Act, R.S.O. 1990, c.C.37, the Chief Coroner has the following duties:

“4(1) The Lieutenant Governor in Council may appoint a coroner to be Chief Coroner for Ontario who shall,

(b) supervise, direct and control all coroners in Ontario in the performance of their duties. …”

5After a meeting with the applicants, the then Chief Coroner wrote a detailed letter to them dated June 7, 2000, explaining why he concluded that their complaint was not well-founded.

6In coming to our decision, we have considered the affidavit material filed by the respondent as background material relevant to the issue of an alternative remedy. Therefore, the motion to strike the affidavit is dismissed.

7In our view, this application should be dismissed. The Coroners’ Council no longer exists, and the applicants have no vested right to have their complaint determined by the Coroners’ Council. Given the abolition of the Council, the power to consider their complaint now rests with the Chief Coroner, given s.4(1)(b) of the Coroners’ Act. That power has been exercised by the Chief Coroner in his letter dated June 7, 2000. Therefore, this is not a case where the declaratory relief sought should be granted or mandamus ordered as the applicants had an adequate alternative remedy, which has been exercised.

8Moreover, the declaration sought would have no practical effect, as the Coroners’ Council no longer exists and no power exists to reconstitute it. Therefore, the application for judicial review is dismissed.

O’DRISCOLL J.

9With the concurrence of my colleagues, I have endorsed the back of the Application Record as follows: “This application is dismissed, including the motion to strike all or part of the affidavit of Dr. B.M.B. Porter, sworn June 28, 2005, for the oral/recorded reasons of even date given for the Court by Swinton J. Costs: We have heard submissions as to costs. Counsel for the respondent seeks nominal costs at $500.00. Counsel for the applicants submits that there should be no costs. Costs are fixed at $500.00, payable by the applicants if demanded by the respondent.”

SWINTON J.

O’DRISCOLL J.

CHAPNIK J.

Date of Reasons for Judgment: March 1, 2006

Date of Release: March 7, 2006

COURT FILE NO.: 442/05

DATE: 20060301

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o’driscoll, chapnik and swinton jj.