COURT FILE NO.: 479/07

DATE: 20081219

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

kent, lederman AND swinton JJ.

B E T W E E N:

STEVE JACKO

Applicant (Responding Party)

• and -

DR. BARRY McLELLAN, CHIEF CORONER FOR ONTARIO

Respondent (Moving Party)

Kimberly Murray, for the Applicant (Responding Party)

John Zarudny and Chantelle Blom, for the Respondent (Moving Party)

HEARD at Toronto: November 27, 2008

SWINTON J.:

Overview

1Dr. Barry McLellan, the Chief Coroner for Ontario, brings this motion pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 to set aside or vary the order of Ferrier J. dated May 15, 2008. That order required the Chief Coroner to deliver a record of proceedings for the purposes of this application for judicial review of his determination not to hold an inquest.

2The issue in this motion is whether the Chief Coroner, in refusing to order an inquest, was exercising a "statutory power of decision" within the meaning of s. 1 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the "JRPA") and, therefore, required to file a record of proceedings.

Background

3The Responding Party, Steve Jacko, issued a Notice of Application for Judicial Review of the Chief Coroner's decision of April 2, 2007 not to order an inquest into the death of Jordan Jacko, the Responding Party's son. Jordan died tragically as a result of choking on food during a school lunch break.

4The Responding Party asked that the Chief Coroner file a record of proceedings for the purposes of the application, including the complete unredacted version of the Ontario Provincial Police Investigation Report and the complete "Coroner's file". When the Chief Coroner refused to generate a record of proceedings, a motion was brought before Ferrier J. to compel him to do so.

5Section 10 of the JRPA deals with the filing of a record of proceedings in a judicial review application. It reads:

When notice of application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made.

6A decision-maker is only required to file a record of proceedings where the application for judicial review concerns a decision by a decision-maker who has exercised a "statutory power of decision". That term is defined in s. 1 of the JRPA as follows:

"statutory power of decision" means a power or right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,

and includes the powers of an inferior court.

7The motions judge ordered the Chief Coroner to file a record of proceedings for the following reasons:

[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.

The Issue

8The only issue that need be determined in this motion is whether the Chief Coroner exercised a "statutory power of decision" when he refused to order an inquest.

Analysis

9The motions judge erred when he stated that a record of proceedings must be filed in every application for judicial review. While an Application Record must be filed for such a proceeding, a record of proceedings must be filed by the decision-maker only when the decision-maker has been served with notice of the application, and if the decision-maker has exercised or purported to exercise a statutory power of decision (see Barrington v. Institute of Chartered Accountants (2004), 2004 34623 (ON SCDC), 191 O.A.C. 230 (Div. Ct.) at para. 8).

10In the present case, the motions judge should have determined whether the Chief Coroner, in deciding not to order an inquest, was exercising a statutory power of decision. This was not an issue to be left to the panel hearing the application for judicial review.

11Moreover, the motions judge erred when he stated that the panel hearing the application for judicial review would determine whether the decision of the Chief Coroner is reviewable. Counsel for the Chief Coroner, in argument, stated that the decision of the Chief Coroner is subject to judicial review before the panel hearing the application, as it was an exercise of a "statutory power", as that term is defined in s. 1 of the JRPA. It is also clear from Snow v. Minister of Community Safety and Correctional Services et al. (Oct. 27, 2006, Div. Ct.) that such a decision is subject to judicial review.

12The Chief Coroner submits that he was not exercising a "statutory power of decision" within the meaning of s. 1 of the JRPA as he was not determining rights, nor was he determining the eligibility of Mr. Jacko for benefits. Mr. Jacko submits that the Chief Coroner was both determining rights and eligibility for benefits within s. 1 of the JRPA.

13In order to determine whether the Chief Coroner exercised a statutory power of decision, it is necessary to consider the relevant provisions of the Coroner's Act, R.S.O. 1990, c. C.37. Section 18(1) of that Act confers the power on a coroner to determine whether an inquest is unnecessary into a death and requires him or her to provide a signed statement setting forth the result of his or her investigation. The coroner is required to keep a record of his or her investigations and to provide information about his or her findings to family members on request (s. 18(2)).

14When a coroner determines that an inquest is unnecessary, a family member may request an inquest in writing. The coroner is required to give the family member an opportunity to state the reasons for the request, either personally, through an agent or in writing. The coroner is to provide a decision within 60 days, along with reasons if the decision is not to hold an inquest (s. 26(1)). In the present case, the Regional Coroner determined not to order an inquest by a decision dated September 16, 2005, and he gave reasons for his decision.

15If there is a decision not to hold an inquest, the person can then make a request to the Chief Coroner to review the decision. The Chief Coroner shall do so after giving the person making the request the opportunity to state his reasons, either personally, by agent or in writing.

16In making a determination whether an inquest is necessary or not, a coroner is required to have regard to s. 20 of the Act, which states,

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.

The matters described in clauses 31(1)(a) to (e) are the factors surrounding the death – who the deceased was and how, when, where and by what means death occurred.

17Thus, in determining whether to hold an inquest, a coroner makes a decision in the public interest. As stated in Ontario (Attorney General) v. Ontario (Human Rights Commission) (2007), 2007 56481 (ON SCDC), 88 O.R. (3d) 455 (Div. Ct.), his or her duty is to serve the public interest, not any private interest (at para. 37).

18While a family member has the right to request that an inquest be held and a right to request a review of the refusal to hold an inquest under the Coroner's Act, there is no right to have an inquest held. In determining whether or not to hold an inquest, the Chief Coroner was not determining Mr. Jacko's rights. Rather, he was determining whether it would be in the public interest to hold an inquest, having regard to the factors set out in s. 20 of the Act and other considerations which he considers relevant.

19Alternatively, Mr. Jacko submits that the Chief Coroner was determining his eligibility for a benefit. He relies on the Ontario (Attorney General) case cited earlier, where this Court held that a coroner's inquest was a service for the purposes of the Ontario Human Rights Code, noting that a human rights tribunal had found that an inquest confers a beneficial impact on the family of the deceased.

20That case turned on the meaning of "services" in the Human Rights Code, a statute which must be given a broad and liberal interpretation (see paras. 39-40). The present case turns on the wording of s. 1 of the JRPA. It states that a "statutory power of decision" means a "power… conferred by or under a statute to make a decision deciding … the eligibility of any person to receive … a benefit". The Chief Coroner is not granted a power by statute to determine a person's eligibility to receive a benefit. The Coroner's Act does not set out criteria for eligibility for a family member to receive a benefit. The Act confers a discretion whether to hold an inquest in the public interest. While an inquest may be perceived as beneficial by family members, the Chief Coroner's decision whether to hold one is not a determination of their eligibility for benefits.

21As the Chief Coroner was not exercising a statutory power of decision, he is not required to file a record of proceedings with the court pursuant to s. 10 of the JRPA. The order of the motions judge is set aside, and the motion of the Responding Party requiring him to file a record is dismissed.

22Neither party seeks costs of this motion, and none are awarded.

Swinton J.

Kent J.

Lederman J.