Jacko v. McLellan, Chief Coroner for Ontario [Indexed as: Jacko v. Ontario (Chief Coroner)]

93 O.R. (3d) 468

Ontario Superior Court of Justice,

Divisional Court,

Ferrier J.

May 15, 2008*

• This judgment was recently brought to the attention of the editors.

Administrative law -- Judicial review -- Procedure -- Applicant bringing application for judicial review of decision of Chief Coroner not to order inquest -- Respondent refusing to file record of proceedings on grounds that decision by Chief Coroner was not reviewable and that no "proceedings" took place -- Respondent ordered to file record of proceedings -- Questions of whether decision was reviewable and whether "proceedings" took place being for reviewing panel to determine.

The applicant brought an application for judicial review of the Chief Coroner's decision not to order an inquest into the death of a child. The respondent took the position that it was not required to file a record of the proceedings as a decision by the Chief Coroner not to order an inquest is not the exercise of a statutory power of decision and as no "proceedings" took place. The applicant brought a motion for an order compelling the respondent to file a record of proceedings.

Held, the motion should be granted.

As long as there was a pending application for judicial review, a record of the proceedings must be filed. It would be for the panel to determine whether the decision of the Chief Coroner was reviewable and whether there was a "proceeding" below.

MOTION for an order compelling the respondent to file a record of proceedings.

Cases referred to Barrington v. Institute of Chartered Accountants, 2004 34623 (ON SCDC), [2004] O.J. No. 4351, 191 O.A.C. 230, 134 A.C.W.S. (3d) 744 (Div. Ct.); Markevich v. Canada, [2003] 1 S.C.R. 94, [2003] S.C.J. No. 8, 2003 SCC 9, 239 F.T.R. 159, 223 D.L.R. (4th) 17, N.R. 321, J.E. 2003-506, 2003 D.T.C. 5185, 120 A.C.W.S. (3d) 532; Payne v. Ontario Human Rights Commission, 2000 5731 (ON CA), [2000] O.J. No. 2987, 192 D.L.R. (4th) 315, 136 O.A.C. 357, 25 Admin. L.R. (3d) 255, 2 C.C.E.L. (3d) 171, [2000] CLLC Â230-039, 100 A.C.W.S. (3d) 634 (C.A.) Statutes referred to Coroners Act, R.S.O. 1990, c. C.37, ss. 20, 26 [as am.], (2), 31(1) Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 1 [as am.], 10

Kimberly R. Murray, for applicant. John P. Zarudny and Chantelle Blom, for respondent.

[1] FERRIER J.: -- This is a motion in a pending application for judicial review.

[2] In the application, the applicant seeks: [page469] i) An Order quashing the decision of the Chief Coroner, Dr. Barry McLellan, dated April 2, 2007, denying the applicant's request that an Inquest be called to examine the death of the applicant's nine-year-old son, Jordan Jacko; ii) An Order requiring the Chief Coroner to call an Inquest into the death of Jordan Jacko; iii) Alternatively, an Order requiring the Office of the Chief Coroner to provide the applicant with a complete copy of the Coroner's Investigation Brief into the Death of Jordan Jacko and thereafter requiring the Chief Coroner to accept and consider further written submissions from the applicant in relation to whether an Inquest should be called to examine the death of Jordan Jacko; iv) In the further alternative, an Order requiring the Office of the Chief Coroner to provide adequate written reasons for its decision to not call an Inquest into the Death of Jordan Jacko;

[3] On April 25, 2005, Jordan Jacko ("Jordan"), a nine-year- old aboriginal child, choked to death after a portion of a hot dog lodged deep in his throat while he was eating lunch at his public school in Kenora in the company of his teacher and fellow students.

[4] At the request of the Jacko family, the coroner did not perform an autopsy.

[5] On June 1, 2005, the applicant wrote to the Regional Coroner to request an inquest into Jordan Jacko's death.

[6] The Regional Coroner conducted an investigation and determined that an inquest was not appropriate in the circumstances, based on the relevant provisions in ss. 20 and 26 of the Coroners Act, R.S.O. 1990, c. C.37. By letter dated September 16, 2005, the Regional Coroner, Dr. Legge, informed the applicant's counsel that he had investigated the matter and was denying the applicant's request for an inquest and provided detailed written reasons. The coroner advised in the said letter that Jordan's airway obstruction was so serious that his death was not only accidental but tragically "inevitable". The coroner further advised that Jordan's teacher, school principal and the Kenora police had all tried the "Heimlich manoeuvre" on Jordan without success.

[7] In the September 16, 2005 letter, the Regional Coroner explained that he had determined that the circumstances surrounding the death were rare and unusual, the response to the situation had been appropriate and that a Coroner's jury would not be able to make substantial recommendations on how to avoid death in this type of situation in the future. The Regional Coroner also informed the applicant that the answers to the five questions in s. 31(1) of the Coroners Act had already been established and that compellable reasons did not exist for the public to be further informed of the circumstances of Jordan Jacko's death. [page470]

[8] On October 13, 2005, the applicant's counsel then wrote to the respondent Chief Coroner for Ontario, requesting a review of the Regional Coroner's decision (pursuant to s. 26).

[9] On April 2, 2007, following his own investigation, the Chief Coroner wrote to the applicant explaining that because he had determined that the circumstances of Jordan Jacko's death did not meet the criteria set out in s. 20 of the Coroners Act, he had decided not to order an inquest. He reminded the applicant that the Jacko family had requested that no autopsy be conducted and that the coroner had respected this request. The Chief Coroner stated:

Having reviewed all of the information available, I have decided that the circumstances of Jordan's death do not meet the criteria as set out in Section 20 of the Coroners Act of Ontario. I will therefore not order an inquest into his death.

[10] Six months later, on October 9, 2007, the applicant issued, through his counsel Ms. Murray of the Aboriginal Legal Services Legal Clinic of Toronto ("A.L.S."), a Notice of Application for a judicial review of the Chief Coroner's decision not to hold an inquest.

[11] The applicant has requested that the respondent deliver a "record of proceedings" including the complete unredacted version of the Ontario Provincial Police Investigation Report and the complete "Coroner's file".

[12] By letter dated November 27, 2007, counsel for the respondent advised opposing counsel that it was not required to file a "record of proceedings" in this case.

[13] I note that the application for judicial review remains pending.

[14] The respondent notes in its material that a decision by the Chief Coroner not to order an inquest has never been determined by a court to be a decision within s. 1 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

[15] The respondent argues that a decision by the Chief Coroner pursuant to s. 26(2) of the Coroners Act to not hold an inquest is not the exercise of a statutory power of decision -- i.e., a "decision deciding or prescribing . . . the eligibility of any person . . . to receive a benefit or licence . . ." within s. 1 of the Judicial Review Procedure Act.

[16] Furthermore, the respondent argues that no "proceedings" took place. The respondent argues that the requirement to file a record pursuant to s. 10 of the Judicial Review Procedure Act applies only to those decisions in which the decision-maker exercised a statutory power of decision that generated a record of proceedings (Barrington v. Institute of Chartered Accountants, 2004 34623 (ON SCDC), [2004] O.J. No. 4351, 191 O.A.C. 230 (Div. Ct.)). [page471]

[17] A "proceeding" or "proceedings" refers to a process or step in a process that determines a legal right:

Although the word "proceeding" is often used in the context of an action in court, its definition is more expansive . . . [T]he "word 'proceeding' has a very wide meaning, and includes steps or measures which are not in any way connected with actions or suits". In Black's Law Dictionary (6th ed. 1990), at p. 1204, the definition of "proceeding" includes, inter alia, "an act necessary to be done in order to obtain a given end; a prescribed mode of action for carrying into effect a legal right". Markevich v. Canada, 2003 SCC 9, [2003] 1 S.C.R. 94, [2003] S.C.J. No. 8, at para. 24.

[18] The purpose of requiring a tribunal or adjudicator to file a "record of proceedings" is to ensure that when the court reviews the tribunal's decision, it has the information and evidence as it appeared before the tribunal in the first instance. A court reviewing an adjudicative decision may look at decisions to admit evidence, submissions of witnesses, and other evidence and may substitute its judgment for that of the court of first instance (Payne v. Ontario Human Rights Commission, 2000 5731 (ON CA), [2000] O.J. No. 2987, 136 O.A.C. 357 (C.A.), at para. 23).

[19] The respondent submits that the term "proceedings" in s. 10 of the Judicial Review Procedure Act means a judicial or quasi-judicial proceeding, such as an action, application, an appearance before an adjudicative board, tribunal or individual arbitrator to determine rights. In deciding whether or not to order an inquest, the Chief Coroner is not performing an adjudicative function. The Chief Coroner decides, based on the factors in s. 20 of the Coroners Act, whether or not to order an inquest by examining factual information to determine, based on his or her expertise, whether ordering an inquest is in the public interest.

[20] In my view, so long as there is a pending application for judicial review, which is the case here, a record of proceedings, such as it may be, must be filed.

[21] It will be for the panel to determine whether the decision of the Chief Coroner is a reviewable decision.

[22] It will be for the panel to decide whether there was a "proceeding" below.

[23] I note that although the respondent suggests in its material that what the applicant actually seeks in this motion is an unredacted copy of the Ontario Provincial Police investigation report, that relief was not sought on the motion and I make no order in reference to that question. That may be for the panel to consider because it is the subject of alternative relief in the application.

[24] Order to go as asked. [page472]

[25] For clarity, in making the order sought, I make no determination that the "proceedings" below are "proceedings" within the Judicial Review Procedure Act, and I make no determination of the question whether the Chief Coroner, in this context, exercises a statutory power of decision.

[26] On consent, no order as to costs.

Motion granted.