COURT FILE NO.: CV-16-300

DATE: 2019-04-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

FRASER MEEKIS, WAWASAYSCA KENO, RICHARD RAE, MICHAEL LINKLATER, TYSON WREN an infant under the age of 18 years by his litigation guardian FRASER MEEKIS, BRAYDEN MEEKIS an infant under the age of 18 years by his litigation guardian FRASER MEEKIS, ZACHARY MEEKIS an infant under the age of 18 years by his litigation guardian FRASER MEEKIS, and MAKARA MEEKIS an infant under the age of 18 years by her litigation guardian FRASER MEEKIS

J. Falconer and M. Churchill, for the Plaintiffs

Plaintiffs/Responding Parties

• and -

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, WOJCIECH ANIOL, INVESTIGATING CORONER, MICHAEL WILSON, REGIONAL SUPERVISING CORONER, DIRK HUYER, CHIEF CORONER FOR ONTARIO

S. Valair and H. Schwartz, for the Defendants

Defendants/Moving Parties

HEARD: January 15, 2019 in Thunder Bay, Ontario

Mr. Justice J.S. Fregeau

Reasons on Motion

INTRODUCTION

[1] On May 7, 2014, four year old Brody Meekis (“Brody”) died in Sandy Lake First Nation as a result of complications from strep throat. Sandy Lake First Nation is a remote fly-in Oji-Cree community in northwestern Ontario

[2] Brody’s family (the “Keno/Meekis family”) has brought a claim against Dr. W. Aniol, the Investigating Coroner; Dr. M. Wilson, the Regional Supervising Coroner; Dr. D. Huyer, the Chief Coroner for Ontario (collectively “the Coroners”); and Ontario concerning the coroner’s investigation conducted following Brody’s death and the decision not to recommend that an inquest be held.

[3] The plaintiffs allege that the manner in which Dr. Aniol conducted his investigation into Brody’s death and Dr. Aniol’s decision not to recommend an inquest constitute misfeasance in public office.

[4] The plaintiffs also allege that Dr. Wilson and Dr. Huyer were negligent in their supervision of Dr. Aniol’s investigation and that their acts and omissions in relation to Dr. Aniol’s investigation amounts to misfeasance in public office.

[5] The plaintiffs further allege that Ontario is liable for failing to adequately fund death investigation services on reserves and is vicariously liable for the Coroners’ conduct. The plaintiffs allege that Ontario is also liable as a result of the discrimination they faced throughout the provision of death investigation services. They claim that this discrimination was on the basis of race and on-reserve residency contrary to s. 15 of the Canadian Charter of Rights and Freedoms, which entitles them to an award of damages pursuant to s. 24(1) of the Charter. Finally, the plaintiffs allege that the honour of the Crown was engaged in this case and breached by Ontario.

[6] On this motion, the defendants seek an order striking out the amended statement of claim, without leave to amend, and an order dismissing the action for failing to disclose a reasonable cause of action pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The defendants also seek an order striking out the amended statement of claim as an abuse of the court’s process, without leave to amend, pursuant to r. 25.11(c).

THE FACTS

[7] On a r. 21 motion to strike a claim for failing to disclose a reasonable cause of action, no evidence is admissible and the material facts pleaded are deemed to be true unless they are manifestly incapable of being proven. It is incumbent on the plaintiffs to clearly plead the facts upon which they rely in making their claim. The claim must be read generously to allow for drafting deficiencies: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 22.

[8] The following pleaded facts form the basis for my analysis of the issues.

[9] Brody was four years old when he died on May 7, 2014, as a result of complications from strep throat. He started showing symptoms of a simple cold on May 1, 2014. After his symptoms had continued for three days, Brody’s mother contacted the nursing station in Sandy Lake First Nation and asked if she could bring Brody in to be examined. Brody’s mother was told by the nurse that it was unnecessary to do so unless he had a fever.

[10] On May 4, 2014, Brody’s symptoms persisted and included a fever. His mother contacted the nursing station again, told the nurse about the fever, and again asked for an appointment to have Brody examined. She was told that there were no appointments until the following week.

[11] On May 5, 2014, Brody’s symptoms worsened. His mother once again contacted the nursing station and advised them of the increasing severity of Brody’s symptoms. Once again, she was not given an appointment.

[12] On May 6, 2014, Brody’s condition deteriorated further. His mother decided that she would take him to the nursing station the following morning without an appointment.

[13] On the morning of May 7, 2014, Brody was feverish, pale, and had difficulty breathing. His mother took him to the nursing station at 9:00 a.m. that day. Three nurses examined him. Brody died at approximately 12:00 p.m. on May 7, 2014.

[14] Following Brody’s death, Dr. Aniol was named as Investigating Coroner. Pursuant to s. 15(1) of the Coroners Act, R.S.O. 1990, c. C.37 (the “Act”), Dr. Aniol was required to conduct an investigation as, in his opinion, was necessary in the public interest to enable him to:

(a) Determine who the deceased was and how, when, where, and by what means the deceased died;

(b) Determine whether or not an inquest is necessary; and,

(c) Collect and analyze information about the death in order to prevent further deaths.

[15] Dr. Aniol did not attend Sandy Lake First Nation following Brody’s death. He conducted the investigation into Brody’s death from Red Lake, Ontario. Brody’s body was sent to the Lake of the Woods District Hospital in Kenora where an autopsy was performed.

[16] At the time of Brody’s death, Dr. Wilson was the Regional Supervising Coroner for the North West Region, and Dr. Huyer was the Chief Coroner for Ontario. Dr. Aniol did not discuss his decision not to attend Sandy Lake First Nation with Dr. Wilson or provide a reason for not attending. Neither Dr. Wilson nor Dr. Huyer directed Dr. Aniol to attend in Sandy Lake First Nation.

[17] Dr. Aniol did not take a detailed statement from any of the medical staff involved in treating Brody at the Sandy Lake First Nation nursing station prior to his death. Dr. Aniol directed police officers in Sandy Lake First Nation to conduct visits and gather evidence and information as to the circumstances surrounding Brody’s death. Dr. Aniol did not keep the Keno/Meekis family informed regarding the investigation.

[18] Ultimately, Dr. Aniol determined that an inquest was not required. Neither Dr. Wilson nor Dr. Huyer questioned Dr. Aniol’s conclusion that an inquest was unnecessary, nor did they direct Dr. Aniol to order an inquest into Brody’s death.

[19] Ontario is responsible in law for funding and providing death investigation services for First Nation communities in Ontario.

The Scheme of the [Coroners Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c37/latest/rso-1990-c-c37.html)

[20] Pursuant to s. 3 of the Act, the Chief Coroner is responsible for administering the Act and its regulations and supervising, directing, and controlling all coroners in the performance of their duties. Section 4 provides that Regional Coroners are to assist the Chief Coroner in the performance of his or her duties in the Region and are required to perform such other duties as are assigned to them by the Chief Coroner.

[21] Brody’s death was reported to the coroner pursuant to s. 10(1)(e) of the Act, which requires any person who has reason to believe that a person died from disease or sickness for which he or she was not treated by a legally qualified medical practitioner to immediately notify a coroner of the facts and circumstances relating to the death.

[22] In these circumstances, pursuant to s. 15(1) of the Act, the coroner is required to conduct “such investigation as, in the opinion of the coroner, is necessary in the public interest to enable the coroner” to determine whether or not an inquest is necessary (s. 15(1)(b)), to analyze information about the death in order to prevent further deaths (s.15(1)(c)), and under s.15(1)(a), to determine the answers to the following questions set out in s. 31(1) of the Act:

(a) who the deceased was;

(b) how the deceased came to his or her death;

(c) when the deceased came to his or her death;

(d) where the deceased came to his or her death; and

(e) by what means the deceased came to his or her death.

[23] Pursuant to s. 16(1), a coroner has discretion as to the scope of an investigation. Section 16(1) provides that a coroner may:

(a) examine or take possession of any dead body, or both; and

(b) enter and inspect any place where a dead body is or from which the body was removed.

[24] If a coroner determines that an inquest is unnecessary pursuant to s. 15(1)(b) of the Act, s. 18(1) requires that “the coroner shall forthwith transmit to the Chief Coroner a signed statement setting forth briefly the results of the investigation, and shall also forthwith transmit to the division registrar a notice of the death in the form prescribed.” Pursuant to s. 18(7) of the Act, all of the reported results of the coroner’s investigation, including the results of the autopsy, must be provided to the deceased’s family members upon request once the investigation is complete.

[25] Pursuant to s. 26(1) of the Act, where the coroner has determined that an inquest is unnecessary, the family members of the deceased may request the coroner hold an inquest. If the coroner declines to hold an inquest after receiving such a request, the family members of the deceased may request the Chief Coroner review the coroner’s decision.

[26] Section 53 of the Act states as follows:

No action or other proceeding shall be instituted against any person exercising a power or performing a duty under this Act for any act done in good faith in the execution or intended execution of any such power or duty or for any alleged neglect or default in the execution in good faith of any such power or duty.

The Test on a Motion to Strike under r. 21.01(1)(b)

[27] Rule 21.01(1)(b) allows a defendant to move to strike out a pleading on the ground that it discloses no reasonable cause of action. The applicable test on such a motion is well established. The court must assume that all of the pleaded facts are true and only strike a claim if it is plain and obvious that the pleading discloses no reasonable cause of action. Where there is a reasonable prospect that the claim will succeed, the matter should be allowed to proceed to trial: Imperial Tobacco, at para. 17.

[28] Pursuant to r. 21.01(2)(b), no evidence is admissible on such a motion.

[29] In Imperial Tobacco, at para. 18, the Supreme Court reviewed the purpose of the test and provided the following framework as to its application:

1. The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial: at para. 19.

2. The motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. On a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will proceed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial: at para. 21.

3. A motion to strike proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. The motion is not about evidence, but the pleadings. Whether the evidence substantiates the pleaded facts, now or in the future, is irrelevant to the motion to strike: at paras. 22-23.

No Evidence on a Motion to Strike

[30] The defendants take issue with certain material that the plaintiffs relied on in their written and oral submissions including newspaper articles, reference to the Deaths Under Five Committee’s process, the Office of the Chief Coroner’s Guidelines for Death Investigation (Chapter 4, 2013) (the “Guidelines”), and Justice Stephen Goudge’s Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of the Attorney General, 2008) (the “Goudge Report”).

[31] As noted, no evidence is admissible on a motion to strike, although the reviewing court can consider documents incorporated into the statement of claim by way of reference. In McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, Pepall J.A., writing for the Ontario Court of Appeal, explains, at para. 32:

[A] statement of claim is deemed to include any documents incorporated by reference into the pleading and that form an integral part of the plaintiff's claim. Among other things, this enables the court to assess the substantive adequacy of the claim. In contrast, the inclusion of evidence necessary to prove a fact pleaded is impermissible. A motion to strike is unlike a motion for summary judgment, where the aim is to ascertain whether there is a genuine issue requiring a trial. On a motion to strike, a judge simply examines the pleading; as mentioned, evidence is neither necessary nor allowed. If the document is incorporated by reference into the pleading and forms an integral part of the factual matrix of the statement of claim, it may properly be considered as forming part of the pleading and a judge may refer to it on a motion to strike.

[32] The amended statement of claim makes reference to the Guidelines at paras. 28 and 30, the Goudge Report at para. 59, and the Deaths under Five Committee at para. 37.

[33] The plaintiffs’ negligence and misfeasance in public office claims are dependent on the Guidelines in part. They provide insight into the legal analysis necessary to consider the validity of these claims and are incorporated by reference. The plaintiffs make reference to the Goudge Report to support their claim that the Coroners breached their duty of care and to highlight the historic inadequacies of death investigation services in remote First Nation communities, which is central to the plaintiffs’ s. 15 Charter claim. It too is permissible on this motion as it is incorporated by reference.

[34] While the amended statement of claim makes reference to the Deaths under Five Committee, extraneous reference to Committee process is impermissible evidence. The newspaper articles and other extraneous material the plaintiffs relied on in oral argument are also impermissible documents, and I will not consider or refer to this material in these reasons.

THE ISSUES

[35] The test on this r. 21.01(1)(b) motion gives rise to the following issues:

1. Does the claim plead the necessary elements of misfeasance in public office?

2. Is the claim in negligence barred by s. 53 of the Act?

3. Do the defendants owe the plaintiffs a private law duty of care?

4. Is there a cause of action for underfunding?

5. Does the claim plead an infringement of s. 15 of the Charter, and if so, are damages an appropriate remedy under s. 24(1)?

6. Does the honour of the Crown give rise to legal obligations in and of itself such that it is a stand-alone cause of action?

7. Are the damages pleaded compensable at law?

8. If the claims are struck pursuant to r. 21.01(1)(b), should the plaintiffs be denied leave to amend pursuant to r. 25.11(c)?

ISSUE 1: The Necessary Elements of Misfeasance in Public Office

The Defendants’ Position

[36] In general terms, the defendants contend that the plaintiffs have not pled material facts that establish the required elements for a claim of misfeasance in public office, an intentional tort requiring an element of deliberate, unlawful conduct and an awareness that the conduct is unlawful and likely to harm the plaintiff.

[37] In particular, the defendants submit that, in order to establish liability for misfeasance in public office, a plaintiff must show that:

1. A public officer engaged in deliberate unlawful conduct in the exercise of his or her public functions knowing that the conduct was inconsistent with the obligations of the office;

2. The public officer was aware that the conduct was unlawful and likely to injure the plaintiff;

3. The conduct was the cause of the plaintiff’s injuries; and

4. The injuries are compensable.

[38] The defendants contend that this tort is not directed at a public officer who inadvertently or negligently fails to adequately discharge the obligations of his or her office. In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office. In other words, according to the defendants, an element of bad faith, malice, or dishonesty must be pled and proven.

[39] The defendants submit that a failure to act can amount to misfeasance in public office only where the public officer was under a legal obligation to act and deliberately failed to do so.

[40] The defendants note that r. 25.06(8) requires that, where malice or intent are alleged, the pleadings shall contain full particulars. Further, a plaintiff is required to plead full particulars in support of an intentional tort such as misfeasance in public office.

[41] The defendants submit that, even when read generously as required on a motion to strike, the plaintiffs’ misfeasance in public office claim has no reasonable prospect of success because all of the conduct complained of in the pleadings constitutes the lawful exercise of statutory discretion by the investigating coroner, the regional coroner, and the Chief Coroner.

[42] The plaintiffs do not allege that the Coroners acted in bad faith and with malice. They allege the Coroners did not act in good faith and were grossly negligent or seriously careless. The defendants submit that allegations of negligence cannot support a claim for misfeasance in public office.

[43] The defendants contend that, in any event, the plaintiffs’ claims for damages for additional grief and mental distress flowing from the Coroners’ death investigation are not compensable.

The Plaintiffs’ Position

[44] The plaintiffs submit that misfeasance in public office is an intentional tort, the requisite elements of which are deliberate unlawful conduct by the defendant in the exercise of public functions and an awareness by the defendant that the conduct was unlawful and likely to injure the plaintiff.

[45] The plaintiffs submit that they have pleaded both elements of the tort and facts in support of those elements.

[46] The plaintiffs submit that the deliberate unlawful conduct pleaded includes discrimination against the plaintiffs and the failure to fulfill statutory and common law duties. The factual elements that the plaintiffs suggest support the allegation of discrimination include the claim that the Coroners relied on negative stereotypes about First Nations parenting to guide the scope of the investigation and that the inadequate investigation perpetuated historic disadvantages experienced by First Nations people living on reserve.

[47] The plaintiffs contend that the pleadings also contain factual elements supporting the allegation of failure to fulfill statutory and common law duties. Examples include the suggestion that Dr. Aniol was under a duty to travel to Sandy Lake First Nation and to communicate with the plaintiffs during his investigation. The plaintiffs suggest that Dr. Aniol’s deliberate decision not to do so is unlawful conduct in breach of his statutory and common law obligations.

[48] The plaintiffs further submit that other factual elements supporting the allegation of failure to fulfill statutory and common law duties include the allegations that the Supervising Coroners deliberately failed to direct Dr. Aniol to attend Sandy Lake First Nation, that they failed to ensure that Dr. Aniol communicated effectively with the plaintiffs, and that they failed to ensure that Dr. Aniol took detailed statements from the medical staff involved.

[49] The plaintiffs submit that they have pled that the defendants knew or were recklessly blind to the fact that their conduct was unlawful and likely to cause injury to the plaintiffs.

Discussion

[50] In Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, Iacobucci J., at paras. 18-31, reviewed the evolution of the tort of misfeasance in public office in the context of a motion to strike. Iacobucci summarized his review as follows, at para. 32:

To summarize, I am of the opinion that the tort of misfeasance in public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts. More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries and that the injuries suffered are compensable in tort law.

[51] Iacobucci J. noted that misfeasance in public office is not directed at a public officer who inadvertently or negligently fails to adequately discharge the obligations of his or her office: at para. 26. Commenting on the requirement of bad faith, Iacobucci J. stated the following, at para. 28:

The requirement that the defendant must have been aware that his or her conduct was unlawful reflects the well-established principle that misfeasance in public office requires an element of “bad faith” or “dishonesty.” In a democracy, public officers must retain the authority to make decisions that, where appropriate, are adverse to the interests of certain citizens. Knowledge of harm is thus an insufficient basis on which to conclude that the defendant has acted in bad faith or dishonestly. A public officer may in good faith make a decision that she or he knows to be adverse to interests of certain members of the public. In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office.

[52] In general terms, the plaintiffs allege that the Coroners collectively conducted an inadequate investigation into Brody’s death. The defendant Coroners’ particular actions and omissions, as alleged in the pleadings in support of the plaintiffs’ misfeasance in public office claim, include the following:

1. That Dr. Aniol made the deliberate decision not to travel to Sandy Lake First Nation for the purpose of his investigation following Brody’s death;

2. That Dr. Aniol deliberately failed to consult with Dr. Wilson prior to allowing Brody’s body to be released for autopsy in Kenora;

3. That Dr. Aniol made the deliberate decision not to collect detailed information from the medical staff at the Sandy Lake First Nation nursing station;

4. That Dr. Aniol determined that an inquest was not required;

5. That Dr. Aniol failed in his duty to communicate with Brody’s family as to the investigation into Brody’s death; and

6. That Drs. Wilson and Huyer deliberately failed to direct Dr. Aniol to attend in Sandy Lake First Nation, failed to direct Dr. Aniol to communicate with Brody’s family, and failed to ensure that Dr. Aniol obtained detailed information from the Sandy Lake First Nation nursing station staff.

[53] In my opinion, when read generously as required, the plaintiffs’ claim against the Coroners has no reasonable prospect of success. None of the conduct pleaded in support of the tort is unlawful conduct or conduct in breach of statutory duties imposed on the Coroners by the Act.

[54] Dr. Aniol, in his capacity as the investigating coroner in regard to Brody’s death, was not legally required to attend Sandy Lake First Nation in the course of his investigation nor was he legally obligated to discuss his decision not to attend with Dr. Wilson or provide reasons for not attending. The Act imposed the following legal obligations on Dr. Aniol, pursuant to s. 15(1):

[T]he coroner shall … make such investigation as, in the opinion of the coroner, is necessary in the public interest to enable the coroner,

(a) to determine the answers to the questions set out in subsection 31(1): [who the deceased was and how, when, where, and by what means the deceased came to his or her death;]

(b) to determine whether or not an inquest is necessary; and

(c) to collect and analyze information about the death in order to prevent further deaths.

[55] The investigative powers of an investigating coroner are discretionary. Pursuant to s. 16(1) of the Act, “a coroner may,”

(a) examine or take possession of any body, or both; and

(b) enter and inspect any place where a dead body is and any place from which the coroner has reasonable grounds for believing the body was removed.

[56] Pursuant to s. 16(2) of the Act, “a coroner who believes on reasonable and probable grounds that to do so is necessary for the purposes of the investigation may,”

(a) inspect any place in which the deceased person was … prior to his or her death;

(b) inspect and extract information from any records or writings relating to the deceased or his or her circumstances … ; [and]

(c) seize anything that the coroner has reasonable grounds to believe is material to the purposes of the investigation.

[57] The Act did not require Dr. Aniol to take statements from the medical staff who treated Brody prior to his death, nor did it require Dr. Aniol to keep Brody’s family directly informed regarding his investigation. Having determined that an inquest was unnecessary, Dr. Aniol was legally required, pursuant to s. 18(7) of the Act, to keep a record of his findings of fact in regard to Brody’s death. These findings, together with the autopsy result, must be made available to the family of the deceased upon request.

[58] Drs. Wilson and Huyer, in their supervisory capacity in relation to Dr. Aniol’s death investigation, did not direct Dr. Aniol to attend Sandy Lake First Nation, to make any specific inquiries, or to conduct an inquest. Nothing in the Act required them to do so.

[59] Where an investigating coroner determines that an inquest is unnecessary, s. 26 of the Act grants the deceased’s family the right to request that the Chief Coroner review the investigating coroner’s decision. Where the Chief Coroner’s final decision is to not hold an inquest, the Chief Coroner must provide the family with written reasons for his or her decision. That is the extent of the rights a deceased person’s family has under the Act in regard to the supervision of an investigating coroner’s death investigation.

[60] In my opinion, the facts pleaded simply cannot support the assertions set out in the amended statement of claim, namely that the Coroners engaged in “deliberate unlawful conduct … in the exercise of public functions” or that they “deliberately breached [their] legal duties through [their] acts and/or omissions.”

[61] Given that the facts pleaded cannot possibly establish deliberate unlawful conduct in the exercise of public functions by the Coroners, one of two essential elements of the tort of misfeasance in public office, this claim has no reasonable prospect of success.

[62] The claim alleging misfeasance in public office is struck.

ISSUE 2: Is the Claim in Negligence Barred by [s. 53](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c37/latest/rso-1990-c-c37.html) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c37/latest/rso-1990-c-c37.html)?

The Defendants’ Position

[63] The amended statement of claim alleges negligent supervision of Dr. Aniol by Drs. Huyer and Wilson. The plaintiffs further allege that Ontario is vicariously liable for the Coroners’ negligence.

[64] The defendants submit that s. 53 of the Act precludes an action being brought against a coroner for any act done in good faith in the execution or intended execution of any power or duty prescribed in the Act or for any alleged neglect or default in the execution in good faith of any such power or duty. The defendants contend that the plaintiffs are required to establish bad faith in order to overcome the immunity provision in s. 53. The defendants suggest that serious carelessness amounting to gross negligence, as pled by the plaintiffs, is insufficient.

[65] The defendants further submit that, in any event, the amended statement of claim fails to plead acts or omissions sufficient to support allegations of gross negligence or serious carelessness. The defendants suggest that the allegations pled, at best and if true, amount to acts or omissions falling within the range of decisions that the Coroners had the discretion to make under the Act. Section 53 thus bars the plaintiffs’ claims in negligence, according to the defendants.

[66] The defendants also submit that Ontario can only be vicariously liable for torts committed by its servants or agents, that coroners are neither servants nor agents of the Crown, and that the Crown therefore cannot be vicariously liable for any alleged torts on the part of the Coroners.

[67] Ontario concedes that the Chief Coroner and the Regional Supervising Coroner are Crown “servants or agents” pursuant to the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27. Nonetheless, the defendants submit that Ontario cannot be held vicariously liable for the negligence of the Chief Coroner or the Regional Supervising coroner when acting in good faith because the immunity clause in s. 53 of the Act applies in conjunction with s. 5(4) of the Proceedings Against the Crown Act, which states:

An enactment that negatives or limits the liability of a servant of the Crown in respect of a tort committed by that servant applies in relation to the Crown as it would have applied in relation to that servant if the proceeding against the Crown had been a proceeding against that servant.

The Plaintiffs’ Position

[68] The plaintiffs assert that the good faith immunity clause in s. 53 of the Act does not shield the defendants from liability because the defendants did not act in good faith. The plaintiffs submit that the Coroners’ failure to perform their duties, absent justifiable reasons, constitutes gross negligence or serious carelessness, the only explanation for which is bad faith.

[69] Alternatively, the plaintiffs suggest that the Coroners’ impugned acts and omissions are inexplicable and incomprehensible such that the absence of good faith can be inferred.

Discussion

(i) The Coroners

[70] Section 53 of the Act states:

No action or other proceeding shall be instituted against any person exercising a power or performing a duty under this Act for any act done in good faith in the execution or intended execution of any such power or duty or for any alleged neglect or default in the execution in good faith of any such power or duty.

[71] In Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17, the Supreme Court considered whether a claimant has to prove malice or bad faith in order to vitiate the immunity provided by a good faith provision under a regulatory body’s governing statute. The court broadened the concept of bad faith, noting that proof of serious carelessness or recklessness was sufficient. LeBel J. explains, at para. 39:

These difficulties nevertheless show that the concept of bad faith can and must be given a broader meaning that encompasses serious carelessness or recklessness. Bad faith certainly includes intentional fault, a classic example of which is found in the conduct of the Attorney General of Quebec that was examined in Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121 (S.C.C.). Such conduct is an abuse of power for which the State, or sometimes a public servant, may be held liable. However, recklessness implies a fundamental breakdown of the orderly exercise of authority to the point that absence of good faith can be deduced and bad faith presumed. The act, in terms of how it is performed, is then inexplicable and incomprehensible to the point that it can be regarded as an actual abuse of power, having regard to the purposes for which it is meant to be exercised. This Court seems to have adopted a similar view in Chaput v. Romain, 1955 CanLII 74 (SCC), [1955] S.C.R. 834 (S.C.C.). In that case, provincial police officers were held liable for breaking up a meeting of Jehovah's Witnesses. Although the police had been granted immunity by a provincial statute for acts carried out in good faith in the performance of their duties, Taschereau J. concluded that the police officers could not have acted in good faith, as there was no other explanation for their negligence Moreover, the fact that actions have been dismissed for want of evidence of bad faith and the importance attached to this factor in specific cases do not necessarily mean that bad faith on the part of a decision-maker can be found only where there is an intentional fault, based on the decision-maker's subjective intent.

[72] In Entreprises Sibeca Inc. v. Frelighsburg (Municipality), 2004 SCC 61, [2004] 3 S.C.R. 304, at para. 25, relying on Finney, Deschamps J. states that “[n]o problem arises when the bad faith test is applied in civil law. That concept is not unique to public law. In fact, it applies to a wide range of fields of law. The concept of bad faith is flexible, and its content will vary from one area of law to another.”

[73] While some Ontario courts have expressed trepidation over whether this broader conception of bad faith applies outside the context of a regulatory body (see Leclair v. Ontario (Attorney General) (2009), 182 A.C.W.S. (3d) 70 (ONSC), at para. 16), other Ontario courts have applied it in the context of negligence claims that involve a good faith immunity provision: see Sparks (Litigation Guardian of) v. Ontario, 2010 ONSC 4234, 191 A.C.W.S. (3d) 738; and Aspden v. Family and Children's Services Niagara, 2015 ONSC 1297, 49 C.C.L.T. (4th) 318.

[74] In Sparks, at para. 24, Allen J. outlined the necessary components to make out the broadened test for bad faith:

Applying the newer concept of bad faith I therefore conclude that whether a reasonable cause of action in bad faith is disclosed should be governed by the following principles:

a. reckless conduct can amount to bad faith;

b. bad faith can be inferred by inexplicable conduct;

c. bad faith can be presumed from a fundamental breakdown of the orderly exercise of authority;

d. where a victim is unable to present direct evidence of bad faith, no more is required than the introduction of facts that amount to circumstantial evidence of bad faith.

[75] Assuming this broader conception of bad faith is sufficient to vitiate the immunity afforded to coroners under s. 53 of the Act, the plaintiffs submit the following facts to support their claim:

1. Dr. Aniol made the deliberate decision not to travel to Sandy Lake First Nation for the purpose of his investigation following Brody’s death;

2. Dr. Aniol deliberately failed to consult with Dr. Wilson prior to allowing Brody’s body to be released for autopsy in Kenora;

3. Dr. Aniol made the deliberate decision not to collect detailed information from the medical staff at the Sandy Lake First Nation nursing station;

4. Dr. Aniol determined that an inquest was not required;

5. Dr. Aniol failed in his duty to communicate with Brody’s family as to the investigation into Brody’s death;

6. Dr. Aniol directed police officers to visit the Keno/Meekis family home to make observations regarding drugs and alcohol in the home following Brody’s death;

7. When making the above noted decisions, Dr. Aniol unjustifiably discriminated against the Keno/Meekis family on the bases of race, ethnic origin, and on-reserve residency; and

8. Drs. Wilson and Huyer deliberately failed to direct Dr. Aniol to attend in Sandy Lake First Nation, failed to direct Dr. Aniol to communicate with Brody’s family, and failed to ensure that Dr. Aniol obtained detailed information from the Sandy Lake First Nation nursing station staff.

[76] As with the claim for misfeasance in public office, in my opinion, the facts pleaded simply cannot support the assertions set out in the amended statement of claim. All of the factual breaches that the plaintiffs assert as evidence of serious carelessness or recklessness fall within the discretionary decision making authority afforded to coroners under the Act. The Act provides an investigating coroner with the discretion to determine how best to conduct his or her investigation, pursuant to ss. 16(1)-(2), as long as that coroner meets his or her statutory obligations under s. 15(1).

[77] The plaintiffs emphasize that Dr. Aniol did not follow the Guidelines, which state, at Ch. 4 pp. 9-11, that “[w]henever the investigating coroner does not attend a scene, the Regional Supervising Coroner should be consulted” and “this should be noted and the reasons documented in the narrative.” In non-urban areas “where the travel time to the death scene exceeds 60 minutes,” which is applicable in this case:

Investigating Coroners should attend at all death scenes, where the apparent means of death is homicide or suicide, or where the deceased is a child less than 19 years of age

or,

where unable to attend at these scenes, should call the [Regional Supervising Coroner] and review the circumstances of the death prior to the body being released from the scene.

Investigating Coroners should attend at accidental death scenes when police at the scene specifically request assistance from the Coroner

or,

where unable to attend at these scenes, should call the RSC and review the circumstances of the death prior to the body being released from the scene.

[78] These Guidelines are qualified by the following preamble, at p. 9:

The Investigating Coroner’s presence at a death scene is critical when the apparent means of death is homicide or suicide, but is also extremely important for the investigation of apparent accidental or natural deaths. The distance traveled to get to a death scene, must however, be considered so that application of these guidelines is both reasonable and practical.

[79] The Guidelines provide parameters for conducting investigations, but given that the Guidelines use the word “should,” they are permissive and must be considered in the context of the preamble. Notably, the Guidelines must be applied in a reasonable and practical manner, especially when travel distance is a factor. As with the discretionary authority outlined in the Act, the Guidelines do not mandate that Dr. Aniol was legally required to attend at the scene or contact the Regional Supervising Coroner as alleged in the amended statement of claim.

[80] Dr. Aniol’s conduct, and Drs. Wilson and Huyer’s conduct in their supervisory capacity, fell within what is legally prescribed by the Act and the Guidelines. As such, their conduct was not reckless or inexplicable. A simple explanation is that the Act and the Guidelines allow the conduct that the plaintiffs impugn. Despite the recommendation that, in the normal course, an investigating coroner “should” attend the scene, the Coroners’ conduct in the case at bar falls within the orderly exercise of authority because the Guidelines provide a range of acceptable, discretionary conduct. The plaintiffs plead no circumstantial evidence of bad faith beyond the bare assertion that Dr. Aniol’s decision making process was motivated by discrimination and the fact that Dr. Aniol instructed police to attend at the Keno/Meekis family home. This fact in isolation is insufficient to support an inference of bad faith as the investigating coroner does have the authority to engage local police: s. 9(1) of the Act. The plaintiffs plead no other facts to support an inference of bad faith.

(ii) Ontario

[81] In Leclair v. Ontario (Attorney General) (2008), 2008 CanLII 54306 (ON SC), 93 O.R. (3d) 131 (ONSC), at para. 19, affirmed in Leclair v. Ontario (Attorney General), 2009 ONCA 471, 178 A.C.W.S. (3d) 289, Pedlar J. found that an investigating coroner is not a servant or agent of the Crown, and therefore, the Crown cannot be vicariously liable for torts committed by an investigating coroner pursuant to s. 5(4) of the Proceedings Against the Crown Act. Coroner’s exercise independent statutory authority: at para. 24. I find that the Crown cannot be vicariously liable for Dr. Aniol’s actions.

[82] While the defendants concede that the Crown can be held liable for Drs. Wilson and Huyer’s conduct in their capacity as Regional Supervising Coroner and Chief Coroner of Ontario, given that the facts pleaded cannot possibly establish that any of the Coroners were seriously careless or reckless under the broadened conception of bad faith, the negligence claim has no reasonable prospect of success.

[83] As a result, the claim alleging negligent supervision is struck by reason of s. 53 of the Act.

ISSUE 3: Do the Defendants owe the Plaintiffs a Private Law Duty of Care?

The Defendants’ Position

[84] The defendants submit that the Coroners do not owe a private law duty of care to the plaintiffs. The defendants submit that the relationship between the plaintiffs and the Coroners has not previously been recognized as giving rise to a private law duty of care. The defendants further contend that this relationship does not give rise to a private law duty of care pursuant to the Anns/Cooper test.

[85] The defendants submit that, under the legislative scheme, the Coroners owe a duty of care to the public at large and not to the plaintiffs. The defendants contend that the plaintiffs fail to allege any direct interactions between the Chief Coroner, the Regional Supervising Coroner, and the plaintiffs that could create sufficient proximity to ground a prima facie duty of care as required at the first stage of the Anns/Cooper analysis.

[86] If the claim in negligence is not struck at the first stage of the Anns/Cooper analysis, the defendants submit that, pursuant to the second stage of the test, there are strong policy reasons for negating a private law duty of care in these circumstances.

[87] The defendants suggest that the imposition of a private law duty of care on the facts pleaded would:

1. Create an unreasonable and undesirable burden on coroners that would interfere with decision making in the public interest;

2. Hamper the legislated purpose of the Act; and

3. Further complicate rather than motivate decision making in the public interest.

The Plaintiffs’ Position

[88] The plaintiffs acknowledge that a private law duty of care in relation to an investigating coroner, a Regional Supervising Coroner, or a Chief Coroner and the family members of a deceased person has not yet been recognized in Ontario. The plaintiffs assert that the novelty of their claim is not a reason to strike it.

[89] The plaintiffs submit that the application of the Anns/Cooper test to the facts of the case at bar justify the imposition of a duty of care owed by the defendants to the plaintiffs. The plaintiffs submit that the facts disclose a relationship of sufficient proximity between the plaintiffs and defendants such that it was reasonably foreseeable that the Coroners’ acts and omissions would cause harm to the plaintiffs. As a result, the plaintiffs argue, a prima facie duty of care arises. The plaintiffs suggest that there are no policy reasons for not recognizing this prima facie duty of care.

[90] The plaintiffs submit that it was reasonably foreseeable that:

1. The Coroners failure to communicate with the plaintiffs would compound the trauma they experienced as a result of Brody’s sudden death;

2. Dr. Aniol’s failure to attend the death scene would compromise the efficacy of his investigation and cause emotional and psychological harm to the family by suggesting that their child is less worthy than others; and

3. A negligent death investigation could cause harm to the family members of the deceased child by inadvertently and improperly implicating them in the child’s death.

[91] The plaintiffs submit that both the unique relationship between an investigating coroner and the family members of the deceased as well as and the relationship between Supervising Coroners and the family members are close and direct enough to establish the required proximity such that a prima facie duty of care should be recognized in this case.

[92] The plaintiffs submit that the policy reasons advanced by the defendants in support of their submission that a duty of care should not be recognized are speculative at best.

Discussion

[93] If I am incorrect in my determination that s. 53 of the Act applies, I must consider whether the defendants owe the plaintiffs a private law duty of care under the Anns/Cooper test. Given that the plaintiffs acknowledge that the negligence claim against the Coroners contemplates a novel duty of care, it is necessary to consider both stages of the Anns/Cooper test: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at para. 39.

[94] In order to establish a duty of care, the Supreme Court has outlined the following considerations, as described in Cooper v. Hobart, at para. 30:

… At the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant's act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. It may be … that such considerations will not often prevail. However, we think it useful expressly to ask, before imposing a new duty of care, whether despite foreseeability and proximity of relationship, there are other policy reasons why the duty should not be imposed.

[95] In Imperial Tobacco, the Supreme Court considered the role that legislation should play when a court determines if a government actor owes a prima facie duty of care. MacLachlin C.J., writing for the court, considered this question in the context of a motion to strike and noted that there are two types of situations that often arise. In the first kind of case, “the statute itself creates a private relationship of proximity giving rise to a prima facie duty of care”: at para. 44. The second situation occurs “where the proximity essential to the private duty of care is alleged to arise from a series of specific interactions between the government and the claimant;” that is “the government has, through its conduct, entered into a special relationship with the plaintiff sufficient to establish the necessary proximity for a duty of care”: at para. 45. McLachlin C.J. notes, at para. 47:

… On one hand, where the sole basis asserted for proximity is the statute, conflicting public duties may rule out any possibility of proximity being established as a matter of statutory interpretation. On the other, where the asserted basis for proximity is grounded in specific conduct and interactions, ruling a claim out at the proximity stage may be difficult. So long as there is a reasonable prospect that the asserted interactions could, if true, result in a finding of sufficient proximity, and the statute does not exclude that possibility, the matter must be allowed to proceed to trial, subject to any policy considerations that may negate the prima facie duty of care at the second stage of the analysis. [Citation omitted.]

[96] Pursuant to the plaintiffs’ submissions, I must consider whether this case engages either situation.

(i) Reasonable Foreseeability and Proximity

[97] The plaintiffs argue that it was reasonably foreseeable that psychological injury would result from Dr. Aniol’s failure to communicate with the Keno/Meekis family and his failure to attend the scene. They also submit that it was reasonably foreseeable that a negligent investigation could inadvertently implicate the family in their child’s death. Given that the investigating coroner’s duties arise directly from the Act, it is essential to consider reasonable foreseeability and proximity within the context of the statutory scheme. In Imperial Tobacco, at para. 44, McLachlin C.J. notes that “it may be difficult to find that a statute creates sufficient proximity to give rise to a duty of care.” This is particularly the case where the statute is aimed at public goods or “if the recognition of a private law duty would conflict with the public authority's duty to the public”: at para. 44. McLachlin C.J., explains that "[w]here an alleged duty of care is found to conflict with an overarching statutory or public duty, this may constitute a compelling policy reason for refusing to find proximity": at para. 44.

[98] Under the Act, the Chief Coroner’s duty is to the public as a whole, not to an individual: Braithwaite v. Ontario (Attorney General) (2007), 2007 CanLII 56481 (ON SCDC), 88 O.R. (3d) 455 (Ont. Div. Ct.), at para. 34. The coroner’s duty is to serve the public interest, not any private interests: Braithwaite, at para. 37; Jacko v. McLellan (2008), 2008 CanLII 69579 (ON SCDC), 247 O.A.C. 318 (Ont. Div. Ct.), at para. 17. Finding that coroners have a private law duty of care to a deceased person’s family would directly conflict with this overarching duty to the public.

[99] The Act includes a good faith immunity clause, s. 53, which is emblematic of the legislature’s intention. Section 53 does not protect coroners from seriously careless or reckless behaviour, but the provision was clearly intended to protect coroners from liability for negligence.

[100] As noted, the Act mandates that an investigating coroner answer the questions outlined in ss. 15(1) and 31(1). An investigating coroner is not required to interact with the deceased’s family over the course of the investigation at all. It is only once the investigation is complete that the family can request a copy of the findings: s. 18(7). This is the extent to which the Act contemplates a direct relationship between the coroner and the deceased’s family. While the relationship is unique in the sense that family members are afforded the right to coronial findings, it is not close and direct in that it is limited to an interaction that occurs after the investigation is complete. This implies that the investigating coroner’s priority is the public at large while the investigation is underway. Given that the plaintiffs take issue with the scope of the investigation as Dr. Aniol was conducting it, the Act, by focusing on the public interest during the investigation, forecloses the prospect of a duty of care to individual members of the public.

[101] Even where the investigating coroner does interact directly with the deceased’s family, something the Goudge Report, quoting the Office of the Chief Coroner, notes is a “key component to the coroner’s role,” Vol. 3 at p. 561, any expectations on the part of the family, representations by the coroner, or other interests – including any potential inadvertent effect on other legal proceedings including criminal or child protection liability – must be considered within the context of the statutory discretion afforded coroners under the Act: See Cooper v. Hobart, at para. 34; Imperial Tobacco, at para. 45.

[102] Without foreclosing the possibility that close and direct contact between an investigating coroner and a deceased person’s family during an investigation could give rise to a duty of care if the coroner was seriously careless or reckless, the facts in this case as pled cannot support the conclusion that the Coroners owed the plaintiffs a duty of care.

[103] The plaintiffs claim that there was an expectation that Dr. Aniol communicate and interact with them directly during the investigation, but ultimately the Act leaves this up to the investigating coroner’s discretion. Again, the plaintiffs’ legal interests included only the right to know the results of the investigation upon request. Outside of this, the legislation does not contemplate any close or direct interaction between the investigating coroner and the deceased’s family. The plaintiffs essentially argue that there should have been direct contact and the fact that there was no contract between the plaintiffs and the Coroners is evidence of the Coroners’ negligence. Given that the Act does not require close and direct contact, a duty of care can only arise from a series of specific interactions between the parties. Lack of contact cannot support a duty of care where the duty can only arise from direct contact.

[104] Given the legislative context, I do not believe that, even if an investigating coroner does communicate directly with the deceased’s family, this automatically creates a special relationship sufficient to ground a duty of care. If anything, given that the Goudge Report emphasizes the value of direct communication between the investigating coroner and the deceased’s family and that there has traditionally been a lack of communication between investigating coroners and individuals in remote First Nation communities, finding a duty of care based on direct interaction alone would, in most cases, decrease the likelihood that investigating coroners will communicate directly with families in the future.

[105] In my opinion, the legislative context does not contemplate a close and direct relationship between a coroner and a deceased person’s family sufficient to create a private law duty of care, and as there was no direct contact between the Coroners and the plaintiffs as pleaded in the amended statement of claim, no special relationship exists between them.

(ii) Residual Policy Considerations

[106] While I find that the plaintiffs have not established a duty of care on the first stage of the Anns/Cooper test, in my opinion, the claim should be dismissed on the second stage as well. Cooper v. Hobart, at para. 37, notes that, at the second stage of the test, the court is “not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally.” A reviewing court should ask the following questions: “Does the law already provide a remedy? Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class? Are there other reasons of broad policy that suggest that the duty of care should not be recognized?”: at para. 37.

[107] A Chief Coroner’s decision not to hold an inquest is subject to judicial review: Connelly v. Ontario (Chief Coroner), 2013 ONSC 2874, 310 O.A.C. 357 (Ont. Div. Ct.), at para. 14. While this remedy does not provide economic compensation for psychological injury, it can include declatory relief and reconsideration of whether an inquest is warranted with the goal of vindicating families who feel they were wronged by inadequacies in a coronial investigation.

[108] Also, while the claim at bar is specific as to a coroner’s liability for damages caused to a deceased person’s family, the specter of unlimited liability does pose a potential risk to a coroner’s overarching duty to the public given that coronial services are pervasive and effect anyone facing the death of a friend or family member who falls within the investigative mandate of the Act.

[109] In my opinion, the Coroners did not owe a private law duty of care to Brody’s family. In turn, the claim for negligent supervision has no reasonable prospect of success and is therefore struck.

ISSUE 4: Is Underfunding a Cause of Action?

The Defendants’ Position

[110] At para. 67 of the amended statement of claim, the plaintiffs allege that Ontario is responsible for funding and providing death investigation services on First Nations communities and that Ontario has failed to do so.

[111] The defendants submit that the law is clear that government policy decisions cannot form the basis of a cause of action in common law unless they are for an improper purpose or made in bad faith, neither of which have been pleaded.

[112] Further, the defendants submit that this claim is made against Ontario directly and that the Ontario Crown is immune from claims in direct liability.

The Plaintiffs’ Position

[113] The plaintiffs did not acknowledge this issue in their written or oral submissions.

Discussion

[114] Based on the language the plaintiffs use in the amended statement of claim, it is unclear whether they are asserting underfunding as an independent cause of action or simply asserting, as a fact, that Ontario failed to fund and provide death investigation services on reserve. In any event, the Ontario Court of Appeal has clearly stated that underfunding is not a cause of action: Phaneuf v. Ontario, 2010 ONCA 901, 104 O.R. (3d) 392, at para. 13.

[115] I therefore find that the claim for underfunding has no reasonable prospect of success and is therefore struck.

ISSUE 5: The Constitutional Claim

[116] Section 15(1) of the Charter states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[117] Section 24(1) of the Charter states:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

The Defendants’ Position

(i) [Section 15](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[118] The defendants submit that, even on a generous reading of the claim, there are no facts pleaded that suggest that the Coroners’ alleged conduct was discriminatory or had the effect of treating the plaintiffs differently on the basis of their on-reserve residency or any other prohibited ground. The defendants contend that the plaintiffs’ claim includes only an unsupported allegation that the plaintiffs’ on-reserve status, race, or ethnic origin were the reasons for the Coroners’ alleged misconduct.

(ii) [Section 24(1)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[119] The defendants submit that, in Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3, the Supreme Court upheld the motion judge’s decision to strike a claim for Charter damages against a quasi-judicial state actor in the face of a statutory immunity clause. The defendants submit that Ernst is dispositive of the plaintiffs’ claim in this case.

[120] The defendants contend that Coroners are mandated to make quasi-judicial decisions and that they benefit from common law and statutory immunity in order to preserve this decision making ability.

The Plaintiffs’ Position

(i) [Section 15](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[121] The plaintiffs submit that the pleadings contain the factual basis required to support a claim pursuant to s. 15 of the Charter, including:

1. The plaintiffs are Status Indians residing on Sandy Lake First Nation;

2. The Act provides a benefit, namely the provision of death investigation services to allow families to understand how a loved one has died and to protect the public by making recommendations for remedying systemic issues that contributed to the death in question;

3. The failure of the defendants to conduct a thorough investigation into Brody’s death, including failing to attend the scene of his death, resulted in the failure to provide coronial services of a comparable quality to those provided to non-reserve residents of Ontario; and

4. The Coroners’ failure to conduct a thorough death investigation perpetuates historical disadvantages faced by First Nations people on reserves, including but not limited to, systemic disadvantages resulting from inadequate health care services.

(ii) [Section 24(1)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[122] The plaintiffs submit that damages are an appropriate remedy in the case at bar as they would provide compensation to the plaintiffs for harm caused to their respect and dignity as a result of discriminatory treatment. The plaintiffs submit that Charter damages would further serve to enhance public confidence in the efficacy of constitutional protection against discrimination and help secure state compliance with the Charter in the future by deterring discrimination in the provision of other on-reserve services.

[123] The plaintiffs submit that Ernst, relied upon by the defendants in support of their submission that Charter damages are not an appropriate and just remedy against a quasi-judicial state actor in the face of a statutory immunity clause, is distinguishable from this case. The plaintiffs submit that the Coroners’ roles and functions were investigative and not adjudicative such that they were not quasi-judicial decision makers.

Discussion

(i) [Section 15](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[124] In Québec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464, at para. 25, the Supreme Court of Canada states:

… The test for a prima facie violation of s. 15 proceeds in two stages: does the impugned law, on its face or in its impact, create a distinction based on enumerated or analogous grounds; if so, does the law impose ‘burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating ... disadvantage.’ [Citation omitted.]

[125] In Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, Abella J. elaborates, at paras. 19-20:

The first part of the s. 15 analysis therefore asks whether, on its face or in its impact, a law creates a distinction on the basis of an enumerated or analogous ground. Limiting claims to enumerated or analogous grounds, which “stand as constant markers of suspect decision making or potential discrimination”, screens out those claims “having nothing to do with substantive equality and helps keep the focus on equality for groups that are disadvantaged in the larger social and economic context. Claimants may frame their claim in terms of one protected ground or several, depending on the conduct at issue and how it interacts with the disadvantage imposed on members of the claimant's group.

The second part of the analysis focuses on arbitrary — or discriminatory — disadvantage, that is, whether the impugned law fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage. [Citations omitted.]

[126] Abella J. goes on to explain that “[t]o establish a prima facie violation of s. 15(1), the claimant must therefore demonstrate that the law at issue has a disproportionate effect on the claimant based on his or her membership in an enumerated or analogous group”: at para. 21. This analysis is predicated on the claimant showing that they have a right to the benefit they claim to have been denied: Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, at para. 3.

[127] The plaintiffs do not challenge the provisions of the Act. They challenge the Coroners’ conduct in administering coronial services pursuant to their statutory authority under the Act. The enumerated and analogous grounds at issue are race and on-reserve residency.

[128] The plaintiffs claim they have a right to coronial services that are comparable to those provided to other off-reserve members of the public. The plaintiffs assert that, because Dr. Aniol did not attend the scene, did not communicate with the deceased’s family, and did not properly investigate the nursing station staff, this equates to a distinction in law under s. 15.

[129] As previously noted, the Act does not require the investigating coroner to attend the scene, communicate with the deceased’s family, or interview particular individuals as part of his or her investigation. Properly characterized, the plaintiffs claim that they have a right to comparable coronial services, which must include these particular procedural outcomes as part of the investigation.

[130] Based on a plain reading of the Act, the plaintiffs have no legal right to a particular outcome when a coroner makes a discretionary, procedural decision over the course of the coronial investigation. The procedural decisions involved in an investigation, including the decision to inspect the place in which the deceased person was prior to his or her death, are discretionary pursuant to ss. 16(1) and (2), and therefore, the plaintiffs cannot found a s. 15 claim on being denied a benefit to which they are not legally entitled. A deceased person’s family members do not have a legal right to the specific process of a coronial investigation.

[131] As in Auton, the plaintiffs’ discrimination claim is based on the erroneous assumption that the Act provides the benefit claimed: at para. 3. It does not. The lack of a benefit equally distributed cannot ground a claim under s. 15(1). Put another way, “[t]here can be no administrative duty to distribute non-existent benefits equally”: Auton, at para. 46.

[132] While discretionary decisions by state actors must conform to the Charter, Doré c. Québec (Tribunal des professions), 2012 SCC 12, [2012] 1 S.C.R. 395, at para. 24, the only fact alleged in the amended statement of claim to support discrimination, outside of the bare assertion that Dr. Aniol was motivated by bias, is that he ordered the local police to attend at the Keno/Meekis family home following Brody’s death. This, in isolation, is insufficient to ground a Charter claim given that s. 9(1) of the Act gives the investigating coroner the discretion to engage local police to conduct aspects of the investigation.

[133] As a result, I find that there is no distinction in the way the Coroners provided coronial services and, as this is an essential element of a s. 15 Charter claim, it has no reasonable prospect of success. The plaintiffs’ s. 15 Charter claim is therefore struck.

(ii) [Section 24(1)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[134] The plaintiffs do not argue that s. 53 of the Act is unconstitutional. Assuming that the Coroners are not protected by the good faith immunity clause and that the plaintiffs have made out their s. 15 Charter claim, the issue becomes whether the plaintiffs are entitled to damages pursuant to s. 24(1) of the Charter. If s. 53 does apply, the plaintiffs’ claim for Charter damages is barred: Ernst, at para. 21. Even if I am wrong in finding that s. 53 does apply and that the plaintiffs’ s. 15 Charter claim has no reasonable prospect of success, in my opinion, this is not a case where I would grant Charter damages pursuant to s. 24(1) and the criteria outlined by the Supreme Court in Ward v. Vancouver (City), 2010 SCC 27, [2010] 2 S.C.R. 28.

[135] In Ward, McLachlin C.J. emphasizes that a Charter damages award must further the general objects of the Charter, at para. 25, and notes, at paras. 31 and 33:

… [D]amages under s. 24(1) of the Charter are a unique public law remedy, which may serve the objectives of: (1) compensating the claimant for loss and suffering caused by the breach; (2) vindicating the right by emphasizing its importance and the gravity of the breach; and (3) deterring state agents from committing future breaches. Achieving one or more of these objects is the first requirement for "appropriate and just" damages under s. 24(1) of the Charter.

However, even if the claimant establishes that damages are functionally justified, the state may establish that other considerations render s. 24(1) damages inappropriate or unjust. A complete catalogue of countervailing considerations remains to be developed as the law in this area matures. At this point, however, two considerations are apparent: the existence of alternative remedies and concerns for good governance.

[136] In Ernst, Cromwell J., writing for a majority of the Supreme Court, explains that judicial review can provide redress for Charter breaches, and a statutory immunity clause cannot bar access to judicial review: at para. 33. Cromwell J. provides further detail, at paras. 35-37:

First, judicial review can provide substantial and effective relief against alleged Charter breaches by a quasi-judicial and regulatory board like this one. The facts of this case strikingly illustrate the utility of the remedy of judicial review. The basis of Ms. Ernst's complaint is that the Board abused its discretion and breached the Charter by refusing to deal with her. If that claim were established in the context of judicial review, a superior court could set aside the directive which Ms. Ernst alleges was issued to stop interaction with her and could order corrective action. Such orders would go a long way towards vindicating Ms. Ernst's Charter rights.

Moreover, judicial review would in all likelihood provide vindication in a much more timely manner than an action for damages … While an application for judicial review would not have led to an award of damages, it might well have addressed the breach much sooner and thereby significantly reduced the extent of its impact as well as vindicated Ms. Ernst's Charter right to freedom of expression. Finally, judicial review would have provided a convenient process to clarify what the Charter required of the Board. That sort of clarification plays an important role in preventing similar future rights infringements.

Thus, judicial review of the Board's decisions and directives has the potential to provide prompt vindication of Charter rights, to provide effective relief in relation to the Board's conduct in the future, to reduce the extent of any damage flowing from the breach, and to provide legal clarity to help prevent any future breach of a similar nature. While the remedies available under judicial review do not include Charter damages, Ward directs us to consider the existence of alternative remedies, not identical ones: para. 33.

[137] While Cromwell J. distinguishes between cases involving administrative tribunals protected by an absolute immunity clause and cases where the government actor is subject to an elevated liability threshold, at para. 38, he explains that “the contours of liability must be considered in the context of, among other things, the particular state actor, having regard to the nature of the duties, the potential availability of other remedies and general principles of liability”: at para. 39. The immunity clause at issue in Ernst was “absolute and unqualified”: at para. 70. Section 53 of the Act contemplates immunity only for individuals who administer the Act in good faith. It is important to note that, unlike the exercise of core prosecutorial discretion, which is immune from judicial review (Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214, at para. 49), as noted previously, the Chief Coroner’s decision not to order an inquest is subject to judicial review: Connelly v. Ontario (Chief Coroner), at para. 14.

[138] I do not read Ernst as dispositive of the issue of whether Charter damages should ever be awarded against an investigating coroner for Charter breaches that are not protected by s. 53. Ernst dealt exclusively with a regulatory board acting in a quasi-judicial manner. The board enjoyed the protection of a broadly worded statutory immunity clause. Section 53 contemplates a heightened liability threshold. It is qualified. It is not absolute. Coroners exercising discretion pursuant to the authority granted by the Act function both quasi-judicially and in an investigative capacity.

[139] Ultimately, while I find that Charter damages can further the objectives of compensation, vindication, and deterrence in the plaintiffs’ case, I also find that judicial review would provide an alternative remedy sufficient to vindicate the plaintiffs’ Charter claim as alleged in the amended statement of claim. The plaintiffs’ claim focuses on the means of the coronial investigation and that the Coroners did not recommend an inquest. This is the alleged source of the plaintiffs’ damages. As a remedy pursuant to judicial review, a court can order corrective action. Notably, a court can order that an inquest take place. This would go a long way towards compensating and vindicating the plaintiffs for alleged inadequacies in the coronial investigation.

[140] Judicial review would also provide a convenient process to clarify what the Charter required of the Coroners throughout the investigation and the discretionary decision making process. This sort of clarification plays an important role in preventing similar future rights infringements. Finally, judicial review might well have addressed the breach much sooner and thereby significantly reduced the extent of the breach’s impact on the plaintiffs as well as vindicate their right to equal treatment under the law pursuant to s. 15.

[141] For all of these reasons, I find that the claim for Charter damages pursuant to s. 24(1) has no reasonable prospect of success and is therefore struck.

ISSUE 6: The Honour of the Crown

The Defendants’ Position

[142] The plaintiffs have pleaded that the honour of the Crown was engaged and breached by the defendants. The defendants submit that the claim does not plead facts or legal obligations that engage the honour of the Crown and that, in any event, the honour of the Crown is not a stand-alone cause of action and does not give rise to legal obligations in and of itself.

The Plaintiffs’ Position

[143] The plaintiffs acknowledge that breach of the honour of the Crown is not itself a cause of action. The plaintiffs’ position is that the honour of the Crown gives rise to duties, the breach of which can form a cause of action. The plaintiffs submit that the claim regarding the honour of the Crown should not be struck because a generous reading of the pleadings shows that they are capable of supporting a novel cause of action: breach of the duty not to discriminate contrary to the honour of the Crown.

Discussion

[144] The parties agree that the honour of the Crown is not a cause of action in itself: Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 73. The question is whether the honour of the Crown gives rise to a duty not to discriminate. McLachlin C.J. notes in Métis Federation, at para. 73:

[T]he honour of the Crown has been applied in at least four situations:

(1) The honour of the Crown gives rise to a fiduciary duty when the Crown assumes discretionary control over a specific Aboriginal interest;

(2) The honour of the Crown informs the purposive interpretation of s. 35 of the Constitution Act, 1982, and gives rise to a duty to consult when the Crown contemplates an action that will affect a claimed but as of yet unproven Aboriginal interest;

(3) The honour of the Crown governs treaty-making and implementation … leading to requirements such as honourable negotiation and the avoidance of the appearance of sharp dealing; and

(4) The honour of the Crown requires the Crown to act in a way that accomplishes the intended purposes of treaty and statutory grants to Aboriginal peoples. [Citations omitted.]

[145] When determining whether the honour of the Crown applies in a given situation, it is important to keep in mind the following, as McLachlin C.J. explains, at para. 72:

[T]he obligation must be explicitly owed to an Aboriginal group. The honour of the Crown will not be engaged by a constitutional obligation in which Aboriginal peoples simply have a strong interest. Nor will it be engaged by a constitutional obligation owed to a group partially composed of Aboriginal peoples. Aboriginal peoples are part of Canada, and they do not have special status with respect to constitutional obligations owed to Canadians as a whole. But a constitutional obligation explicitly directed at an Aboriginal group invokes its "special relationship" with the Crown. [Citations omitted.]

[146] The claim, as pleaded, contemplates a novel cause of action for discrimination arising out of the Crown’s duty to treat Aboriginal people honourably. The pleadings state that, through the provision of coronial services, the Crown treated the plaintiffs differently on the basis of their indigeneity, which deprived them of comparable coronial services. This claim does not involve a situation where the Crown has assumed discretionary control over an Aboriginal interest. It does not engage s. 35 or involve a purposive interpretation of s. 35. It does not involve treaty-making, treaty implementation, or the intended purposes of a treaty or statutory grant.

[147] As noted in R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at para. 99, “not all interactions between the Crown and Aboriginal peoples engage the honour of the Crown.” The right not to be discriminated against is a constitutional obligation the Crown owes to all Canadians pursuant to s. 15 of the Charter. The provision of coronial services and the obligations that arise under the Act are not directed at a specific Aboriginal group. A coroner’s duty is to the public as a whole: Braithwaite, at para. 37; Jacko, at para. 17.

[148] In my opinion, on a generous reading, the plaintiffs’ claim alleging discrimination cannot support a novel cause of action arising out of the honour of the Crown. The facts supporting this claim and the obligations that the plaintiffs claim the Coroners’ breached are indistinguishable from those pleaded as part of their s. 15 Charter claim.

[149] As a result, the plaintiffs’ claim arising out of the honour of the Crown has no reasonable prospect of success and is therefore struck.

ISSUE 7: Damages

The Defendants’ Position

[150] The defendants argue that the plaintiffs’ claims are not compensable at law. The defendants submit that the Coroners had no part in Brody’s death and that, as a result, the plaintiffs’ claims for damages for added grief and mental distress resulting from the coronial investigation have no reasonable prospect of success.

The Plaintiffs’ Position

[151] The plaintiffs argue that their claim for damages resulting from the Coroners’ acts or omissions are compensable psychological injuries as pleaded in the amended statement of claim.

Discussion

[152] The plaintiffs claim the following damages in the amended statement of claim:

i. Depression

ii. Anxiety

iii. Nervousness and irritability

iv. Post-traumatic stress

v. Embarrassment and feelings of humiliation and shame

vi. Mood disorders and

vii. Insomnia and sleep disturbances.

[153] In Wellington v. Ontario, 2011 ONCA 274, 105 O.R. (3d) 81, at para. 31, Sharpe J.A. states that “[c]laims for added grief and mental distress are compensable only in exceptional cases.”

[154] More recently, in Saadati v. Moorhead, 2017 SCC 28, the Supreme Court has clarified the requisite factual basis for awarding damages for psychological injury. Brown J. explains, at para. 2:

This Court has, however, never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mental injury. Nor, in my view, would it be desirable for it to do so now. Just as recovery for physical injury is not, as a matter of law, conditioned upon a claimant adducing expert diagnostic evidence in support, recovery for mental injury does not require proof of a recognizable psychiatric illness. This and other mechanisms by which some courts have historically sought to control recovery for mental injury are, in my respectful view, premised upon dubious perceptions of psychiatry and of mental illness in general, which Canadian tort law should repudiate. Further, the elements of the cause of action of negligence, together with the threshold stated by this Court in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114 (S.C.C.), at para. 9, for proving mental injury, furnish a sufficiently robust array of protections against unworthy claims. I therefore conclude that a finding of legally compensable mental injury need not rest, in whole or in part, on the claimant proving a recognized psychiatric illness.

[155] On a r. 21 motion to strike, the court must assume all facts as pleaded are true. The plaintiffs plead that the above noted damages arose as a result of the Coroners’ actions. While causation would likely be a contentious issue at trial given that the Coroners’ actions are alleged to have exacerbated, but not initially caused the plaintiffs’ psychological injuries, a r. 21 motion is not about evidence or causation: Imperial Tobacco, at para. 22.

[156] In my opinion, assuming the facts as pleaded are true, the plaintiffs’ damages are potentially compensable at law. However, as I have found that none of the plaintiffs’ claims giving rise to these damages have a reasonable prospect of success, their claim for damages as relief must therefore also be struck.

ISSUE 8: Rule 25.11(c) and Leave to Amend

The Defendants’ Position

[157] Finally, the defendants submit that the amended statement of claim should be struck out as abuse of the court’s process pursuant to r. 25.11(c) for making unsupported allegations of bad faith, malice, and intentional wrongdoing and for failing to plead material facts to support the claims for misfeasance in public office, negligent supervision, and breach of s. 15 of the Charter.

[158] The defendants also note that the plaintiffs have already amended their statement of claim once, and as a result, the plaintiffs should be presumed to have already pled any grounds that exist to support their claims. The defendants urge me to deny the plaintiffs leave to amend.

The Plaintiffs’ Position

[159] The plaintiffs argue that, under r. 25.11(c), the court may strike all or part of a pleading on the ground that it is an abuse of process. They submit that the doctrine of abuse of process exists to prevent the misuse of court procedure “in a way that would be manifestly unfair to a party to the litigation … or would in some other way bring the administration of justice into disrepute”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 37. The plaintiffs argue that, if I strike their pleadings, I should grant them leave to amend and in doing so there would not be an abuse of process.

Discussion

[160] In C.U.P.E., Local 79, at para. 35, the Supreme Court emphasizes that “[j]udges have an inherent and residual discretion to prevent an abuse of the court's process.” Arbour J., writing for the majority, explains, at para. 43:

… In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts. Whether it serves to disentitle the Crown from proceeding because of undue delays or whether it prevents a civil party from using the courts for an improper purpose, the focus is less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice. [Citations omitted.]

[161] In Mitchinson v. Baker, 2015 ONCA 623, 128 O.R. (3d) 220, at para. 15, relying on the ruling in C.U.P.E., Local 79, the Ontario Court of Appeal “explains that the doctrine of abuse of process is discretionary and not confined to set categories. The general purpose of the doctrine is to bar proceedings that are inconsistent with public policy considerations such as finality, judicial economy, consistency of results, and the integrity of the justice system.”

[162] I have found that the plaintiffs’ claims for misfeasance in public office, negligent supervision, and discrimination pursuant to s. 15 of the Charter have no reasonable prospect of success. I have also found that their claims for underfunding and discrimination arising from the honour of the Crown are not independent causes of action and therefore have no reasonable prospect of success. The plaintiffs urge me to allow them leave to amend.

[163] I have struck the plaintiffs’ claims because the pleadings fail to establish a sufficient factual basis to support any of the causes of action alleged. These are not minor deficiencies that further amendments can remedy. The underlying legal foundations of the claims proceed on an erroneous interpretation of the Coroners’ statutory obligations under the Act. Amendments, even with further factual submissions, cannot support the plaintiffs’ claims. To allow the plaintiffs leave to amend would be inconsistent with judicial economy and the integrity of the justice system.

[164] For these reasons, I strike the plaintiffs’ claims without leave to amend.

COSTS

[165] The defendants have been wholly successful on this motion. If the parties cannot agree on the costs of the motion, they shall file written submissions as to costs, not to exceed five pages, exclusive of their respective Bills of Costs. The defendants’ costs submissions shall be filed within 14 days of the release of these Reasons; the plaintiffs’ within 7 days thereafter. If costs submissions are not filed within this timeframe, costs of the motion shall be deemed to have been settled.

The Hon. Mr. Justice J.S. Fregeau

Released: April 15, 2019