CITATION: The Canadian Chiropractic Association v. Dr. Barry McLellan, Coroner, 2011 ONSC 6014

DIVISIONAL COURT FILE NO.: 606/04

DATE: 20111109

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

The Canadian Chiropractic Association and the Canadian Memorial Chiropractic College

Applicants (Responding Parties)

– and –

Dr. Barry McLellan, Coroner

Respondent (Moving Party)

Timothy S. B. Danson, for the Applicants (Responding Parties)

Sara Blake, for the Respondent (Moving Party)

HEARD: October 4, 2011

HARVISON YOUNG J.

A. INTRODUCTION

[1] This matter arises out of an inquest that was held between April 2002 and January 2004 into the death of Lana Lewis, who died after suffering a stroke which took place one week after she had received a chiropractic neck manipulation. The jury rendered its verdict on January 16, 2004, finding that the death resulted from an “accident” caused by a stroke, and rendering a number of recommendations.

[2] Ten months later, on November 17, 2004, the applicants, the Canadian Chiropractic Association and the Canadian Memorial Chiropractic College (“CCA” and “CMCC”) commenced a judicial review application to quash the verdict and its recommendations. The application has yet to be perfected. The applicants claim that the delay in perfecting has resulted primarily from the difficulties they have faced in obtaining all the transcripts pertaining to the inquest since 2004.

[3] In 2005, apparently in order to address the Registrar’s dismissal of the application for delay in perfecting the application, the parties consented to an order (signed by Carnwath J. and dated December 5, 2005) permitting the applicant to perfect within 6 months following “completion and receipt of the transcripts of the Inquest…”.

[4] While the applicants appear to have been in possession of the transcripts of the evidence of the inquest since approximately April 2007, they take the position that they must have transcripts of the submissions made by counsel in the absence of the jury. These have been much more difficult to obtain from the Court Reporter.

The present motions

[5] In April 2011, the applicants moved for an order permitting them to perfect their appeal despite a number of irregularities. They also seek orders, inter alia, permitting them to file their 60 volume transcript brief notwithstanding the fact that it does not comply with the form required by the Rules. In addition, they seek permission to file a 256 page factum. Their application raises many issues, but the central claim is that the jury verdict was perverse.

[6] The Coroner moved in July 2011 to dismiss the judicial review application on the basis of laches. He also opposes the other relief sought by the applicants in their motion to perfect.

[7] At the beginning of the hearing of these motions, I advised the parties that I would hear the respondent’s motion to dismiss the application on the grounds of laches before hearing the applicants’ motion relating to the perfection of the application. Having heard argument on this issue, I advised that I would reserve my decision and remain seized so that, depending on the result of this motion, I would hear the applicants’ motion relating to the material they wish to file in order to perfect the application.

Preliminary issue on this motion

[8] Mr. Danson for the applicants submitted that a single judge of the Divisional Court does not have jurisdiction to dismiss for delay, relying on the decision of Ferrier J. (sitting as a single judge of Divisional Court) in 15202437 Ontario Inc.(c.o.b. Pro Pipe Construction) v. Ontario Pipe Trades Council, 2010 ONSC 6713 (Div. Ct.) [OPTC].

[9] Ms. Blake for the respondent submitted that a single judge does have such jurisdiction, though the case for delay must be strong, which she submitted it is in the present case: see Ransom v. Ontario, 2010 ONSC 3156 (Div. Ct.) [Ransom], per Molloy J., aff’d 2010 ONSC 5594 (Div. Ct.).

[10] Having reviewed both decisions, I reject the applicants’ position that a Divisional Court judge, sitting alone, does not have jurisdiction to dismiss for delay. While Ferrier J. declined to dismiss the application in OPTC, he explained at paras. 6-7 that a single judge could grant the motion where it is “plain and obvious” that the application should be dismissed for delay:

…I am of the view that a motion to dismiss for delay, as a general rule, should be brought before the panel. Simply put, I am of [the] view that, except where it is plain and obvious that the application should be dismissed for delay, a motions judge should not dismiss for delay, but rather should leave the issue to the panel.

[11] Ferrier J. went on to state the following at para. 9:

I hasten to add that Ransom was clearly one of those cases where a dismissal on a motion before a single judge was appropriate.

[12] I agree with the respondent that a single judge may dismiss for delay, although the case for delay must be clear, as was the case in Ransom.

[13] After carefully considering the materials filed and the thorough arguments by the parties, I have concluded that this is a case in which it is clear that the case should be dismissed for delay. My reasons follow.

B. Dismissal for delay

1. The Law

[14] Judicial review is an extraordinary equitable and discretionary remedy which can be denied in the face of excessive delay: see Ransom; International Union of Bricklayers and Allied Craftworkers v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers (2000), 132 O.A.C. 87 (Div. Ct.), at para. 18 [International Union of Bricklayers]; Jeremiah v. Ontario Human Rights Commission, [2008] O.J. No. 3013 (Div. Ct.) [Jeremiah]; Gigliotti v. Conseil d’Administration du College des Grands Lacs, [2005] O.J. No. 2762 (Div. Ct.) [Gigliotti].

[15] The case law sets out clearly and consistently that the court is to consider the length of the delay, whether there is a reasonable explanation for the delay, and whether the moving parties have suffered prejudice as a result of the delay. As Molloy J. noted in Ransom, at para. 5,

[i]n determining whether to dismiss an application for delay, the court will consider the length of the delay, whether there is a reasonable explanation for the delay and whether the moving parties have suffered prejudice as a result of the delay: Gigliotti v. Conseil d'Administration du Colleges des Grands Lacs, [2005] O.J. No. 2762.

[16] It is also clear that the same considerations apply to judicial review in relation to coroners’ inquests: see Masset Band Council v. Yeltatzie Inquest (Coroner of), [1976] B.C.J. No. 1165 (S.C.) [Masset Band Counsel]; Alonzo v. Ontario (Coroner), [1994] O.J. No. 1271 (Div. Ct.) [Alonzo]; Young v. Manitoba (Attorney General) (1960), 25 D.L.R. (2d) 352 (Man. C.A.) [Young]. Thus, the issues to be considered in this motion are:

(i) Has the delay been excessive?

(ii) Is there a reasonable explanation for the delay?

(iii) Is there prejudice arising from the delay?

[17] I will address these issues in turn.

2. Analysis

(i) Has the delay been excessive?

[18] There can be no doubt that the period from when the verdict was rendered (January 16, 2004) to the present constitutes a very significant delay.

[19] To begin with, the applicants did not commence their application for judicial review until 10 months after the jury’s verdict. It has now been almost seven years since then, and the application has not yet been perfected.

[20] As I will discuss below, the applicants submit that they have good explanations for the fact that the appeal has not been perfected, but it cannot be denied that it is a very long delay. As the respondent notes, applications for judicial review of coroners’ jury verdicts have been dismissed for delay of much shorter duration: Young; Masset Band Council, at para. 18; Alonzo, at para. 54.

[21] As Molloy J. wrote in International Union of Bricklayers, at para. 7, “[t]raditionally, this Court has expressed concern about any delay greater than six months: Jeremiah v. Ontario Human Rights Commission, [2008] O.J. No. 3013 (Div. Ct.).”

[22] The applicants argue that when the courts have dismissed for delay, they have done so in cases (such as Ransom) where the delay has largely preceded the application, whereas here, the period prior to the commencement of the application was only 10 months. I do not find support for that proposition in the case law.

[23] In Masset Band Council, the jury had rendered its verdict on December 3, 1975 and the decision dismissing the application for certiorari was rendered on November 8, 1976, with no indication of when the application was actually commenced. In Young, the inquest had been concluded some eleven months prior to the commencement of the application for certiorari in May 1960.

[24] In International Union of Bricklayers, the application for judicial review was commenced within a few weeks of the decision in issue, but not perfected for another seven months. The reasons in that case draw no distinction between the delay before commencing the application and the delay in perfecting the application.

[25] In Ransom, there was a delay of approximately six years before the application was commenced, and of one year after that before it was perfected. As Molloy J. noted in that case, at para. 15, this Court has held on many occasions that a delay of more than six months in commencing a judicial review application is reason for concern.

[26] There is nothing, in my view, to support the applicants’ contention that the pre-application delay is the focus of the inquiry on a motion to dismiss for delay, and nor is there any principled reason, in my view, that this should be so. The delay in this case is similar to, or in fact longer than, that which Molloy J. considered in Ransom.

[27] In short, there can be no doubt that the delay in this case has been inordinate.

(ii) Is There An Adequate Explanation for the Delay?

[28] The first period of time to be considered is the ten month interval between the delivery of the jury’s verdict and recommendations, and the commencement of the judicial review application.

[29] The applicants submit that they did not commence the application because they had sought leave to appeal a decision of this Court to the Court of Appeal, in relation to their attempt to have Ms. Oakley, counsel for the deceased’s family, removed as counsel of record. Mr. Danson was waiting for the results of the proceeding before commencing his judicial review application. His clients commenced this application only seven days after the application for leave was dismissed by the Ontario Court of Appeal in November, 2004.

[30] The respondent Coroner submits that this is not a satisfactory explanation. First, he points to correspondence from Mr. Danson only one month after the verdict in which he indicates that “[w]e have been instructed to bring an Application for Judicial Review to quash the jury verdict.”

[31] Second, the respondent argues that the pending leave application before the Court of Appeal did not justify delay in filing a judicial review application. While the inquest was continuing, the applicants had sought to have Ms. Oakley removed as counsel of record for the deceased’s family. After the Coroner declined to accede to this request, the applicants applied to the Divisional Court for judicial review of this ruling. Having been unsuccessful in the Divisional Court, the applicants sought leave to appeal to the Court of Appeal.

[32] In the meantime, the inquest had concluded and the jury rendered its verdict. Mr. Marshall, Ms. Blake’s predecessor on this file, advised Mr. Danson by letter dated February 16, 2004, that it was his view that the application for leave to appeal was moot. He stated that he did not subscribe to Mr. Danson’s strategy, which was apparently to delay any judicial review proceedings until the matter before the Court of Appeal focusing on Ms. Oakley’s conduct was resolved. Mr. Marshall stated in that letter that “…it seems clear that you are intending to bring a fresh application for judicial review and it is my suggestion that you do that now rather than defer that action to some indefinite future date”.

[33] In reply on this point, Mr. Danson stated that “there is no limitation period within which to commence the Judicial Review other than a possible common law argument based on laches”.

[34] In my view, the pending leave to appeal motion did not provide a satisfactory explanation for the delay in commencing the judicial review application. The judicial review application seeks to quash the verdict and recommendations, and, as the draft factum evidences, there are numerous issues raised in addition to the issue relating to counsel for the family.

[35] The delay in commencing the application, in itself, was excessive and without satisfactory explanation.

[36] The application for judicial review was commenced on November 17, 2004. The applicants submit that virtually the entire delay from that date to the present has resulted from the problems they have encountered in obtaining complete transcripts of the inquest. They submit that this explains the delay, and that any responsibility for the delay should lie at the feet of the respondent Coroner.

[37] There was a period of several months in 2007 during which Mr. Danson was dealing with the illness and subsequent passing of his brother. Ms. Blake was clear that she accepts that these circumstances explain the delay of somewhere in the region of six/eight months during this period, and I agree with that.

[38] The applicants rely on two related arguments to explain the balance of the delay (roughly 70 months, or 5 years and 10 months) in perfecting the appeal. First, they argue that they need the transcripts of all the submissions made in the absence of the jury, which have been very difficult to obtain. I note that the period from November 2004 until April 2011, when the applicants moved to perfect, amounts to roughly 78 months, or 70 if one extracts an eight month period from this on the basis that Mr. Danson’s personal circumstances offer an adequate explanation for 8 months of the delay.

[39] Second, they submit that the Carnwath J. order dated November 5, 2005, properly interpreted, means that they did not have to perfect the appeal until all the transcripts of the inquest (and not just of the evidence) were obtained. As this has not yet happened, they submit, the six month period has not yet even begun to run.

[40] I will address these arguments in turn.

[41] The record indicates that the applicants had received all of the transcripts of the evidence by April 27, 2007, at the latest, although these were not delivered to the respondent until December 31, 2008. The only outstanding issues since then have related to some of counsel’s submissions made in the absence of the jury.

[42] It is clear from the earliest correspondence from Mr. Danson to the respondent that he was gathering and ordering transcripts as the inquest had proceeded. In addition to transcripts of the evidence, he was able to obtain transcripts of the rulings made by the coroner and of the submissions made in the presence of the jury. He has not, however, been able to obtain complete transcripts of all the submissions made in the absence of the jury, although these may have been recorded. Most of the missing transcripts or recordings arise from one particular court reporter.

[43] On October 18, 2007, Mr. Danson acknowledged in a letter to counsel for the coroner that “…we must bring some finality to the problem with the transcripts. My sense is that it is a problem that cannot be resolved.” By letter dated July 18, 2008, to Ms. Blake, who had taken over the file by this time, Mr. Danson stated that “…we give up with respect to the transcripts.”

[44] Mr. Danson acknowledges that the Attorney General’s office was cooperative in trying to resolve these difficulties. He submits, however, that the Attorney General is responsible for ensuring that transcripts of all proceedings are provided, and so any delay relating to the transcripts should not lie at the feet of the applicants.

[45] I disagree. The cases cited by the applicants in support of their submission that the Coroner is, in effect, the guarantor with respect to the provision of transcripts of all proceedings relating to an inquest, are criminal cases; see, for example, Ontario (Criminal Code Review Board) v. Ontario (Information and Privacy Commissioner)(Hale), [1999] O.J. No. 4072 (C.A.); R. v. Hannemann, [2001] O.J. No. 839 (S.C.J.); R. v. Rose, [1998] S.C.J. No. 81; Brochu v. Pond, [2002] O.J. No. 4882 (C.A.); Rizzo et al. v. Hanover Insurance Co., [1993] O.J. No. 1352 (C.A.), leave to appeal refused, [1993] S.C.C.A. No. 488; Time Data Recorder International Ltd. v. Canada (Minister of National Revenue – M.N.R.), [1997] F.C.J. No. 475 (C.A.); Agnew and Ontario Association of Architects, [1988] O.J. No. 1181 (Div. Ct.); and OPTC.

[46] As Ms. Blake noted, s. 45(1) of the Coroner’s Act, R.S.O. 1990, c. C.37, provides that only the evidence must be transcribed at an inquest:

45. (1) The evidence upon an inquest or any part of it shall be recorded by a person appointed by the coroner and approved by the Crown Attorney and who before acting shall make oath or affirmation that he or she will truly and faithfully record the evidence.

[47] Accordingly, the statute only requires that the evidence be recorded, and not that the entire proceedings be recorded.

[48] Second, s. 45(2) provides as follows:

(2) It is not necessary to transcribe the evidence unless the Chief Coroner or Crown Attorney orders it to be done or unless any other person requests a copy of the transcript and pays the fees therefor except that the coroner may prohibit the transcribing of all or any part of evidence taken in the absence of the public.

[49] In short, as “any person” may request a transcript, the control of the transcription does not lie with the Coroner or the Attorney General. This was not the case in R. v. Hannemann, where the legislation required the entire proceedings to be recorded. The Coroner’s Act only requires that the evidence be recorded, and there is no dispute that those transcripts were completed and provided to the applicants a number of years ago.

[50] Moreover, this is not a case where the Attorney General impeded the process in any way. Rather, the correspondence indicates that the respondent’s counsel was very cooperative in assisting the applicants in obtaining all the transcripts they wished to obtain.

[51] Although counsel for the Coroner attempted to assist Mr. Danson with his attempts to get all the transcripts he wanted, the record does not support the applicants’ submission that this was done because of a shared understanding or agreement that this was necessary for the application, and that the respondent is accordingly stopped from raising delay. This is particularly true with respect to the transcripts of submissions made in the absence of the jury. The assistance was provided as a professional courtesy, and on a number of occasions, counsel also reminded Mr. Danson that delay would be an issue if the application proceeded.

[52] In addition, the correspondence makes it very clear that the applicants knew by July 2008, at the very latest, that it was not realistic to expect to obtain the balance of the transcripts relating to the submissions made in the absence of the jury. Even if the earlier delays had been justified, delays subsequent to this were not. The applicants had the transcripts of evidence from the entire inquest, along with transcripts of the rulings and the submissions made in the presence of the jury. It was not reasonable to continue to delay in light of its recognition of the practical difficulties it was facing, particularly with respect to transcripts for proceedings that were not required to be recorded in the first place.

[53] The second, related explanation for the delay is the Carnwath J. consent order, dated December 5, 2005. Mr. Danson submits that this contemplated that the appeal would not have to be perfected until six months after all transcripts of all proceedings relating to the inquest had been provided. He also submits that the wording of the order itself, which refers to “transcripts of the inquest”, not of the “evidence”, supports this position. He argues that, because there are some transcripts still outstanding, the six month period has not yet started to run, and the order operates as “a complete bar” to motion to dismiss for delay. He further submits that Mr. Marshall was aware of this, and that the applicants’ position is supported by the fact that the respondent cooperated in assisting Mr. Danson in attempting to get that which he was seeking.

[54] There are a number of difficulties with this argument. First, according to the applicants’ interpretation of this order, the period provided for perfection would never begin to run, as it is clear from the record that it will never be possible to provide for the transcription of the entire proceeding. With respect, this makes no sense.

[55] Second, I do not accept that the parties (or Carnwath J.) intended such an interpretation.

[56] The parties consented to this order to avoid a dismissal by the Registrar for delay one year after the application had been commenced. I do not accept the applicants’ submission that the parties, or Carnwath J., contemplated that this order would operate to insulate the applicants from any obligation to pursue their application diligently. This is particularly true when it was already clear from the record that there were difficulties with some of the transcripts that Mr. Danson wanted to obtain. As set out above, the Coroner’s Act requires only the recording of the evidence. The respondent’s counsel had clearly communicated its unwillingness to agree to lengthy delays, but they did know that the applicants were having some difficulty obtaining the transcripts, and they were willing to accommodate that difficulty to some extent. I do not find any basis to support the applicants’ contention that both parties intended to delay perfection until all transcripts of any proceeding, including submissions made out of the presence of the jury, were available.

[57] Third, the argument that such a consent order could operate as a complete bar to a motion to dismiss is surely wrong. If that were the case, it would prevent the court exercising its discretion to dismiss for delay in that it would prevent the court from addressing the other considerations such as prejudice, which the case law clearly requires the Court to take into account. In other words, it would operate to remove the Court’s discretion to dismiss an application for judicial review for delay.

[58] In short, Mr. Danson knew early on that it would be difficult to get all the transcripts of the proceedings. According to their own evidence, the applicants were aware, at the very latest by July 2008, that the sought-after transcripts would be impossible to obtain. From that point on, particularly in light of the fact that the applicants had the transcripts of the evidence, rulings and submissions made in the presence of the jury, there was, in my view, no explanation for the delay. The applicants have not provided a satisfactory explanation for the inordinate delays in perfecting this application.

(iii) Prejudice as a result of the delay

[59] The applicants submit that the respondent has not suffered any prejudice from the delay. Rather, it argues, the applicants are the ones suffering the prejudice as a result of the damage to the reputation of the chiropractic profession which, they allege, was caused by the verdict and its recommendations.

[60] The respondent submits that it would be prejudicial to allow this application to proceed some fifteen years after the death and over seven years after the verdict. Moreover, it submits that allowing the applicants to proceed with their application to set aside the jury verdict would be prejudicial to the public interest purposes of an inquest.

[61] In considering the question of prejudice, this Court must consider the interests of those who were directly affected by Ms. Lewis’ death, including her family and the chiropractor and other medical practitioners who treated the deceased prior to her death. In Masset Band Council, the B.C. Supreme Court dismissed the application for judicial review for delay after only one year, stating at para. 18:

Even though the applicants have been able to explain the delay I am conscious of the fact that to set aside the verdict and order a new inquest may serve no useful purpose but may rekindle grief among the close relatives of the three deceased men which one would expect the passage of time to abate. I think they are entitled to have those expectations respected.

[62] Those remarks are as apt in this case as they were in Masset Band Council. Given the length of the delay, there can be no doubt of the prejudice to the family and other parties. There were many parties granted standing at this inquest, including the treating chiropractor who did not seek judicial review.

[63] In addition, however, allowing the application to proceed after such a long delay would be prejudicial to the public interest purpose at the centre of a coroner’s inquest. These public interest purposes include satisfying the community that the circumstances surrounding the death have not been overlooked, concealed or ignored and focusing community attention on and initiating community response to preventable deaths: see Coroner’s Act, s. 20; Ontario Law Reform Commission, Report on the Coroner System, (Toronto: Department of Justice, 1971), at p. 29. I also note that it is by no means evident what the applicants would gain if the application were to succeed in any event. Mr. Danson submitted that the applicants are seeking only to quash the verdict and recommendations. He advised the Court during oral argument that none of the recommendations have actually been implemented. Although the applicants argue that the profession’s reputation has been defamed as a result of the verdict and recommendations, it is far from obvious that merely quashing the verdict and recommendations, this long after they were rendered, would change anything.

C. Conclusion

[64] For the foregoing reasons, I conclude that the delays in this case, both in commencing and perfecting the application, have been clearly inordinate, unexplained and prejudicial. I also conclude that the delay warrants dismissal by a single judge of the Divisional Court, as they did in Ransom, and an order will issue accordingly.

[65] As the application to dismiss is allowed, there is no basis for proceeding with the applicants’ motion to perfect the application.

[66] If the parties are unable to agree as to costs, they may file brief submissions in writing within 30 days of today’s date upon a timeline to which they agree between themselves, failing which they may seek directions from the Court.

Harvison Young J.

Released: November 9, 2011

CITATION: The Canadian Chiropractic Association v. Dr. Barry McLellan, Coroner, 2011 ONSC 6014

DIVISIONAL COURT FILE NO.: 606/04

DATE: 20111109

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JUSTICE HARVISON YOUNG

BETWEEN:

The Canadian Chiropractic Association and the Canadian Memorial Chiropractic College

Applicants (Responding Parties)

– and –

Dr. Barry McLellan, Coroner

Respondent (Moving Party)

REASONS FOR JUDGMENT

Harvison Young J.

Released: November 9, 2011