CITATION: Tiwari v. Huyer, 2015 ONSC 7920
DIVISIONAL COURT FILE NO.: 252/15 DATE: 20151215
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, WILTON-SIEGEL AND MULLIGAN JJ.
BETWEEN:
RAKESH TIWARI Applicant
– and –
DR. DIRK HUYER and OFFICE OF THE CHIEF CORONER OF ONTARIO Respondents
Michael D. Smitiuch and Luke Hamer, for the Applicant Claudia Brabazon and Hera Evans, for the Respondents
HEARD at Toronto: December 15, 2015
WILTON-SIEGEL J. (ORALLY)
[1] On this application, Rakesh Tiwari (the “Applicant”) seeks judicial review of a decision of Dr. Dirk Huyer (“Dr. Huyer”) and the Office of the Chief Coroner of Ontario (the “Office”) (collectively, the “Respondents”) (the “Decision”). In the Decision, Dr. Huyer upheld an earlier decision of Dr. William Lucas (“Dr. Lucas”) and the Office to refrain from conducting a discretionary inquest into the death of the Applicant’s son.
[2] The application is made pursuant to s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. The parties agree that the standard of review of the decision is reasonableness. The Applicant also alleges that Dr. Huyer’s remarks regarding the efficacy of a jury in the present circumstances raise a reasonable apprehension of bias. No standard of review analysis is required on this question.
[3] The statutory factors that coroners must consider when determining whether or not to conduct a discretionary inquest are set out in s. 20 of the Coroner’s Act, R.S.O. 1990, c. C.37 (the “Act”). Section 20(a) of the Act incorporates by reference the matters set out in s. 31(1) of the Act that a coroner is required to address if an inquest is held.
The Reasonableness of the Decision
[4] The Applicant argues that Dr. Huyer overlooked several significant factors and had regard to two inappropriate factors in reaching his conclusion.
[5] First, the Applicant says that the actual reason for the death of the Applicant’s son is not known because the reason why the nurse on duty failed to follow the supervision protocol is not known. However, it is a reasonable interpretation of s. 31(1)(b) of the Act that it is not necessary to establish the reason for such failure in order to establish the cause of death. As the Applicant admitted, this issue really goes to the consideration in s. 20(b) which is addressed below.
[6] Second, the Applicant said that Dr. Huyer failed to consider the clinical notes and records of the hospital pertaining to the Applicant’s son. In particular, the Applicant said that Dr. Huyer should have had regard to the failure to consider possible non-compliance with medication requirements.
[7] Dr. Huyer concluded that he was only required to take into consideration medication in the deceased’s body at the time of death. This is also a reasonable interpretation of the scope of the inquiry required by s. 31(1)(b).
[8] Third, the Applicant says that Dr. Huyer should have taken into consideration the following issues for the purposes of his consideration of the desirability of the public being fully informed of the circumstances of the death through an inquiry as contemplated by s. 20(b):
(i) the frequency of suicides in psychiatric departments of Ontario hospitals during the past ten years; and
(ii) the deceased’s interaction with the hospital staff, including medication-related issues.
[9] With respect to the former, the Applicant says that Dr. Huyer failed to take into consideration the information that a CTV program identified 98 patients in hospitals in Ontario who took their lives while on constant watch. This information was contained in a letter of the Applicant’s counsel to Dr. Huyer dated April 6, 2015.
[10] Dr. Huyer’s decision was dated April 7, 2015. It is not clear that counsel’s letter came to the attention of Dr. Huyer prior to the Decision. In any event, however, the issue had previously been raised in counsel’s earlier letters to Dr. Huyer. The only additional information in counsel’s letter of April 6, 2015 was the alleged number of such cases, which we note has not been verified. More importantly, the Applicant has not established any context for these cases or any systematic problem linking these cases, or even a majority of these cases, other than that they were alleged to have involved patients on constant watch. Most importantly, as Dr. Huyer noted, the two important contributors to the deceased’s death were: (1) the issues with the operation of the observation policy in the particular circumstances of this case; and (2) features of the physical environment in the hospital. Most importantly, Dr. Huyer concluded that there is no evidence that the deceased’s death in these circumstances engaged any systemic failure or involved issues that are directly transferable to acute psychiatric care on a broader level. Given the evidence before him this was a reasonable conclusion.
[11] With respect to the second consideration, there is no evidence in the record to justify a conclusion that issues associated with the deceased’s medication, or his non-compliance with required medication, or his interaction with hospital staff during the period of his treatment in the hospital contributed to his death, let alone to suggest a systemic failure or a broader concern. On this issue, the Applicant’s submissions are entirely speculative. Dr. Huyer could reasonably conclude that such speculation does not warrant the conduct of an inquest.
[12] Lastly, the Applicant argues that both Dr. Lucas and Dr. Huyer improperly took into consideration the fact that the hospital had already taken action to address the two specific contributors to the deceased’s death. This is, however, a reasonable consideration which negates the need for an inquest in the absence of any evidence that there are system-wide issues of such nature.
[13] More generally, the issue on this application is the reasonableness of the Decision which is a highly discretionary one to which considerable deference is owed. Viewed as an entirety, the decision not to exercise the coroner’s discretion in the particular circumstances is supportable on the facts and the law and, as such, satisfies the requirements of reasonableness.
Apprehension of Bias
[14] In a meeting held on May 11, 2015, and in the Decision, Dr. Huyer expressed the view that a jury comprised of laypersons would not be able to provide recommendations to prevent future deaths in similar circumstances. In the meeting, Dr. Huyer apparently stated that this view was based on his previous experience. The Applicant suggests this raises a reasonable apprehension of bias against juries of laypersons.
[15] These statements are far from raising any reasonable apprehension of bias. If anything, the statements might, in certain circumstances, raise an issue of the reasonableness of the decision. However, we see no basis for such an argument in the present circumstances. The statements represent Dr. Huyer’s professional judgment based on many years of personal experience. The statements are also specifically located in the particular circumstances of this case. Based on the evidence in the record, including in particular the two important contributors to the deceased’s death, such an observation seems an eminently reasonable conclusion.
[16] Based on the foregoing, the Applicant has failed to demonstrate that the Decision is unreasonable. Accordingly, the application is denied.
SACHS J.
Costs
[17] I have endorsed the back of the Application Record, “This application is dismissed for reasons given orally by Wilton-Siegel J. The respondents are not requesting costs and no costs are ordered.”
WILTON-SIEGEL J.
SACHS J.
MULLIGAN J.
Date of Reasons for Judgment: December 15, 2015 Date of Release: January 7, 2016
CITATION: Tiwari v. Huyer, 2015 ONSC 7920
DIVISIONAL COURT FILE NO.: 252/15 DATE: 20151215
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, WILTON-SIEGEL AND MULLIGAN JJ.
BETWEEN:
RAKESH TIWARI Applicant
– and –
DR. DIRK HUYER and OFFICE OF THE CHIEF CORONER OF ONTARIO Respondents
ORAL REASONS FOR JUDGMENT
WILTON-SIEGEL J.
Date of Reasons for Judgment: December 15, 2015 Date of Release: January 7, 2016