- DATE: 20020705 DOCKET: C36583
COURT OF APPEAL FOR ONTARIO
RE:
JIM AKEY (Applicant/Appellant) - and - ENCON INSURANCE MANAGERS INC., COMMERCIAL UNION ASSURANCE COMPANY OF CANADA LTD., CONTINENTAL CASUALTY COMPANY AND CERTAIN UNDERWRITERS AT LLOYD’S UNDER CONTRACT NO. ENC498 (Respondents)
BEFORE:
MCMURTRY C.J.O., CATZMAN AND MACPHERSON JJ.A.
COUNSEL:
Lawrence J. Burns
for the appellant
Deborah Berlach
for the respondents
HEARD:
July 3, 2002
On appeal from the judgment of Justice Gertrude F. Speigel dated February 22, 2001.
E N D O R S E M E N T
[1] The appellant, Jim Akey (“Akey”), appeals from the judgment of Justice G. Speigel dated June 4, 2001 in which she held that the respondent insurance companies were not required to indemnify the appellant for his costs of legal representation at a coroner’s inquest in St. Thomas.
[2] Akey operates Tara Hall Residential Home in St. Thomas for developmentally handicapped and post-psychiatric patients. In December, 1999, Jerome Doyle (“Doyle”), a 74 year old resident of the home, died shortly after being badly scalded as he attempted to bathe himself.
[3] An inquest was called pursuant to the Coroners Act. The public notice of the inquest said, inter alia:
The inquest will examine the events surrounding the death and will focus on the nature of the care and supervision in unlicensed homes. The inquest jury may also make recommendations aimed at preventing similar deaths. The inquest is expected to last approximately three weeks.
[4] Akey said that he was advised that Doyle’s family might pursue a claim against him. Accordingly, he notified his insurance broker who in turn notified the respondent insurers.
[5] The policy of insurance between the insurers and Tara Hall and Akey obligated the insurers to provide, inter alia:
B. DEFENCE AND OTHER PAYMENTS
With respect to the insurance afforded by the General Agreements of Part II of this policy, the INSURERS further agree:
- to pay expenses incurred in Canada in any investigation . . . of any CLAIM.
- CLAIM
a) Written or oral monetary demands received by the INSURED, or
b) written or oral allegations of breach in the rendering of INSURED SERVICES by the INSURED . . .
[6] Akey was of the view that, at the corner’s inquest, there were two de facto claims being made against him: first, by the Doyle family who might be claiming, pursuant to paragraph 2(b), that the home and its staff committed a “breach in the rendering of INSURED SERVICES”; and second, by the coroner himself because of the stated focus of the inquest, “the events surrounding the death”. Accordingly, he sought payment from his insurers for legal representation at the inquest. The insurers refused. Akey brought an application seeking a declaration that the insurers had a duty to provide him with the representation that he sought. Speigel J. dismissed the application.
[7] In our view, the appeal must be dismissed. We agree with the appellant that the costs of legal representation are “expenses” and that a coroner’s inquest is “any investigation” within paragraph B(3) of the insurance policy. However, we do accept that the coroner’s inquest involves a claim, either by the family of the deceased or by the coroner himself.
[8] With respect to the claim of the deceased’s family, Akey stated in his affidavit in support of his application: “Subsequently we became aware the family of the deceased may wish to pursue a claim . . .”. This is not a claim; it is a possible or speculative claim. Until the deceased’s family actually takes some action, there is nothing to which Akey, or his insurers, need respond.
[9] Akey’s other submission, that the coroner’s inquest is in effect a claim against him, his facility and its staff, is completely answered by Cory J.’s description of public inquiries in Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), 1997 323 (SCC), [1997] 3 S.C.R. 440 at 460:
A commission of inquiry is neither a criminal trial nor a civil action for the determination of liability. It cannot establish either criminal culpability or civil responsibility for damages. Rather, an inquiry is an investigation into an issue, event or series of events. The findings of a commissioner relating to an investigation are simply findings of fact and statements of opinion reached by the commissioner at the end of the inquiry. They are unconnected to normal legal criteria. They are based upon and flow from a procedure which is not bound by the evidentiary or procedural rules of a courtroom. There are not legal consequences attached to the determination of a commissioner. They are not enforceable and do not bind courts considering the same subject matter.
We note also that s. 31(2) of the Coroners Act specifically precludes any finding of legal responsibility during an inquest.
[10] We would dismiss the appeal with costs fixed at $2000.
“R. Roy McMurtry C.J.O.”
“M. A. Catzman J.A.”
“J. C. MacPherson J.A.”