CITATION: Turner v. Death Investigation Oversight Council, 2021 ONSC 4681

DIVISIONAL COURT FILE NO.: 175/20

DATE: 20210630

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Dr. Jane Turner, Applicant

AND:

death investigation oversight council, Respondent

AND:

DR. MICHAEL POLLANAN, Respondent

BEFORE: Penny, Grace and Kurz JJ.

COUNSEL: Alexandra Clark and Stephanie Figliomeni for the DIOC (Moving Party)

Sujit Choudhry for Dr. Turner

Wayne Cunningham for Dr. Pollanen

Emma Carver for The Toronto Star Newspapers Limited and The Hamilton Spectator

Iris Fischer and Gregory Sheppard for the Canadian Civil Liberties Association

HEARD at Toronto by videoconference: June 29, 2021

ENDORSEMENT

overview

[1] There is pending before this Court an application for judicial review of a decision rendered by the Death Investigation Oversight Council regarding a complaint by Dr. Jane Turner concerning the Chief Forensic Pathologist of Ontario, Dr. Michael Pollanan.

[2] The Death Investigation Oversight Council is an independent oversight body established under the Coroners Act, R.S.O. 1990 c. C.37. It aims to ensure that death investigation services are provided in a transparent, effective and accountable manner in Ontario. Its duties include oversight of the offices of the Chief Corner and of the Chief Forensic Pathologist.

[3] The Council brought a motion, returnable June 29, 2021, for an order concerning the record of proceedings to be filed in the application for judicial review. In this motion, the Council seeks an order that only a redacted copy of the Council’s record of proceedings in this matter be filed in the public record and that the unredacted copy of the record of proceedings be sealed and not form part of the public record.

[4] Mr. Justice David Corbett, in a case management endorsement, ordered that, due to the unique circumstances of this case, the motion would be heard by a panel of the Divisional Court. Further, he ordered that the media be given notice of the motion in accordance with the Superior Court’s protocols for seeking publication bans and sealing orders. This is what lead to the intervention of Toronto Star Newspapers Limited, The Hamilton Spectator and the Canadian Civil Liberties Association.

[5] Council’s motion is opposed in part by the applicant, Dr. Turner, and by the respondent, Dr. Pollanan. The motion is opposed essentially in its entirety by the intervenor newspapers and CCLA.

[6] In its notice of motion and in its factum, the Council seeks alternative relief. It is this alternative relief that gives rise to this endorsement and our decision of June 29, 2021 to adjourn the hearing of the motion. The alternative relief sought is that:

if the requested order sealing the PRIVATE record and approving the proposed redactions to the PUBLIC record is not granted, an order adjourning the motion to permit service of the motion materials on all non-parties whose confidential information and or identity is contained in the record of decision but is currently concealed by redaction and or placement in the private record.

[7] This endorsement contains our reasons for the adjournment and our directions for the continued case management, and ultimate hearing, of this matter.

Background

[8] Dr. Turner is a forensic pathologist who was, in March 2019, working in the Hamilton Regional Forensic Pathology Unit. She lodged a complaint with the Council’s Complaints Committee concerning certain aspects of Dr. Pollanan’s conduct and his oversight of the Ontario Forensic Pathology service. The Complaints Committee initiated an investigation into the matters raised by Dr. Turner. During its investigation, the Complaints Committee interviewed 17 witnesses and compiled, created and reviewed a large number of documents.

[9] Many of the witnesses interviewed by the Complaints Committee are pathologists. As Chief Forensic Pathologist, Dr. Pollanan controls access to the registry of pathologists who are authorized to conduct autopsies in the province of Ontario. At least some of the witnesses sought assurances of or were promised confidentiality in exchange for their agreement to be interviewed by the Complaints Committee. At least one of the witnesses expressed concern about the possibility of reprisals by the Chief Forensic Pathologist if their identity were disclosed.

[10] A number of the documents compiled, created or reviewed by the Complaints Committee contain sensitive information concerning other potentially affected individuals who are not parties to this application or to the initial complaint. These potentially affected non-parties include two infants and two adults (now deceased) who were the subject of autopsies performed by the Ontario Forensic Pathology Service, members of the deceased’s families (and the health records of the deceased and, in some cases, of the family members) and other pathologists practising in Ontario.

[11] The proposed redactions to the public record of proceedings, and the proposed sealing of the unredacted private record of proceedings, are entirely concerned with preserving the anonymity of the 17 witnesses and of the deceased infants and adults and their families.

Analysis

[12] This matter was scheduled for a full day hearing. At the commencement of the hearing of the motion, the panel raised with counsel the anomaly associated with the prospect, under the alternative remedy sought, that the issue of whether the record of proceedings filed on the public record should be redacted and sealed might have to be argued twice: once on June 29, 2021 without the potentially affected non-parties in attendance and, depending on the outcome, again with the potentially affected non-parties in attendance. The Council confirmed through Ms. Clark that, to her knowledge, neither the witnesses interviewed by the Complaints Committee nor the families of the deceased whose autopsies and other records were in issue, were made aware of the motion, the opposition to the motion or the “risk” to their privacy interests associated with potential disclosure of the full record of proceedings before the Complaints Committee on the public record in this application for judicial review.

[13] After hearing from counsel for all parties, the panel ordered that the motion be adjourned, that the potentially affected parties be given notice of the application and the motion, and that the matter proceed in accordance with certain directions issued by the panel and to be issued by the case management judge in the future pending the hearing of the motion.

[14] This is a highly unique and unusual situation. The Council is a relatively new entity. This is the first time it has ever been subject to an application for judicial review. None of the issues raised in the judicial review itself, or on this motion, have ever been considered by a court in the context of proceedings before the Complaints Committee of the Council.

[15] It is the view of the panel that it would be contrary to the due administration of justice, in the unique circumstances of this case, to proceed in the matter proposed by the Council. The Divisional Court will not entertain the prospect of hearing the matter twice. There are many, obvious problems with such an approach. It makes no sense to proceed with the motion, without notice to the potentially affected non-parties, if there is any prospect of their future participation or challenge in the event that the full record were ordered to be placed, unredacted and unsealed, on the public record.

[16] The panel makes no prior determination of the question of the status, or potential status, of the potentially affected non-parties, or about the nature or manner of their potential participation, if any. All we would say at this juncture is that the privacy interests of the potentially affected non-parties are not, at least on their face, frivolous. The panel also wishes to make it clear that what the panel has done in the unique circumstances of this case should not be interpreted as determining the necessary procedure in any future case involving judicial review of the decisions of the Council or its Complaints Committee.

[17] For these reasons we order:

(a) the hearing of the Council’s motion is adjourned;

(b) the Council shall develop a plan for communication of this motion and its potential consequences to the potentially affected non-parties;

(c) the parties to this motion shall confer and seek to develop a consensus on that plan and a reasonable timetable for action, if any, by the potentially affected non-parties following implementation of the communication plan;

(d) the panel shall remain seized of this matter and will hear the motion on a date to be determined (as soon as reasonably possible in the circumstances);

(e) Mr. Justice Penny shall be the case management judge and shall issue any further directions, as required, leading up to the hearing of the motion;

(f) the communication plan and related matters shall be prepared and distributed to the parties and Justice Penny in advance of July 13, 2021; and,

(g) a telephone conference shall take place with Justice Penny on July 13, 2021 at 9:00 AM for 30 minutes to consider the communication plan and its implementation and to consider next steps.

[18] The costs of July 29, 2021 are reserved to the panel following the hearing of the motion.

Penny J.

I agree _______________________________

Grace J.

I agree _______________________________

Kurz J.

Date: June 30, 2021