Awasis Agency of Northern Manitoba v. Allen,

• Jurisdiction: Manitoba
• Judge: Joyal
• Neutral Citation: 2013 MBQB 47
• Citation: 2013 MBQB 47,(2013), 289 Man.R.(2d) 38 (QB),289 Man R (2d) 38,289 ManR(2d) 38,(2013), 289 ManR(2d) 38 (QB),289 Man.R.(2d) 38
• Date: 27 February 2013
• Court: Court of Queen's Bench of Manitoba (Canada)

Awasis Agency v. Allen (2013), 289 Man.R.(2d) 38 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. MR.010

In The Matter Of: The Fatality Inquiries Act, C.C.S.M., c. F-52

And In The Matter Of: An Inquest into the death of Jaylene Sanderson-Redhead

Awasis Agency of Northern Manitoba (applicant) v. The Honourable Judge Herbert Lawrence Allen (respondent)

(CI 13-01-81680; 2013 MBQB 47)

Indexed As: Awasis Agency of Northern Manitoba v. Allen

Manitoba Court of Queen's Bench

Winnipeg Centre

Joyal, C.J.Q.B.

February 27, 2013.

Summary:

The Chief Medical Examiner called an inquest into the death of a 20 month old child. The inquest was held between December 11 and 21, 2012. The Awasis Agency of Northern Manitoba moved for orders of certiorari, mandamus and prohibition, seeking to quash or set aside the decision made by the Inquest Judge to not recuse himself as the presiding judge of the inquest.

The Manitoba Court of Queen's Bench dismissed the motion.

Coroners - Topic 4001

Inquests and fatality inquiries - General - Nature of inquest - The Manitoba Court of Queen's Bench discussed the objectives and parameters of an inquest under the Fatality Inquiries Act and the duties of the Inquest Judge - See paragraphs 22 to 75.

Coroners - Topic 7404

Judicial review - General - Interim applications - [See Courts - Topic 691 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The Chief Medical Examiner called an inquest into the death of a 20 month old child - The inquest was held between December 11 and 21, 2012 - The Awasis Agency of Northern Manitoba moved for orders of certiorari, mandamus and prohibition, seeking to quash or set aside the decision made by the Inquest Judge to not recuse himself as the presiding judge of the inquest - Awasis asserted that the Inquest Judge's interventionist approach with one witness, where he asked very pointed questions, repeated requests for clarification and further requests for explanation concerning what he seemed to think were incongruities, gave rise to a reasonable apprehension of bias - The Manitoba Court of Queen's Bench dismissed the motion - To be able to access the interlocutory review and relief that Awasis sought at this mid-point in the inquest, Awasis had to demonstrate that the impugned comments and questions on the part of the Inquest Judge constituted conduct so flagrant that it amounted to a breach of natural justice - Awasis failed to do that - This was not one of those rare and clear cases where the impugned conduct could or should justify the review, on an interlocutory basis, of a presiding judge's discretionary determination to not recuse - Neither was this a case where it would be unfair to oblige the participants to continue the inquest to completion before raising any similar complaints on appeal - If the court was wrong, the motion would still fail on the merits - While the timing and extent of the Inquest Judge's interventions might have on occasion moved significantly away from the ideal of judiciousness, those interventions were not irrelevant nor were they examples of inappropriate roving (outside the reasonably understood scope of the issues of this particular inquest) - Despite their sometimes pointed and direct tone, neither were the interventions of a nature so as to give rise to a reasonable apprehension of bias - See paragraphs 76 to 93.

Cases Noticed:

Hudson Bay Mining and Smelting Co. v. Cummings, P.C.J. (2006), 208 Man.R.(2d) 75; 383 W.A.C. 75; 2006 MBCA 98, refd to. [para. 24].

Hudson Bay Mining and Smelting Co. v. Cummings, P.C.J. (2004), 190 Man.R.(2d) 231; 335 W.A.C. 231; 2004 MBCA 182; 2005 MBCA 9, refd to. [para. 31].

Manitoba Government and General Employees' Union v. Hughes (2012), 275 Man.R.(2d) 256; 538 W.A.C. 256; 2012 MBCA 16, refd to. [para. 32].

Re Brown et al. and Patterson (1974), 6 O.R.(2d) 441, refd to. [para. 37].

Métis Child, Family and Community Services v. A.J.M. et al. (2008), 225 Man.R.(2d) 261; 419 W.A.C. 261; 2008 MBCA 30, refd to. [para. 44].

Lennox v. Arbor Memorial Services Inc. (2001), 151 O.A.C. 297; 56 O.R.(3d) 795 (C.A.), refd to. [para. 51].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 59].

R. v. Trunzo (M.) (2012), 282 Man.R.(2d) 18; 2012 MBQB 211, refd to. [para. 60].

Kalo v. Human Rights Commission (Man.) (2008), 226 Man.R.(2d) 139; 2008 MBQB 92, refd to. [para. 60].

Head and Head v. Trudel, P.C.J. (1988), 54 Man.R.(2d) 145 (Q.B.), affd. (1989), 57 Man.R.(2d) 153 (C.A.), refd to. [para. 64].

Swan v. Harris (1992), 79 Man.R.(2d) 188 (Q.B.), refd to. [para. 64].

Bennet v. Registered Psychiatric Nurses Association (Man.), [2002] Man.R.(2d) Uned. 116; 116 A.C.W.S.(3d) 964; 2002 MBCA 116, refd to. [para. 65].

Chrétien v. Gomery et al., [2009] 2 F.C.R. 417; 333 F.T.R. 157; 2008 FC 802, affd. (2010), 409 N.R. 193; 2010 FCA 283, refd to. [para. 70].

Sanofi Pasteur Ltd. v. Canada (Attorney General) (2008), 327 F.T.R. 291; 165 A.C.W.S.(3d) 767; 2008 FC 286, refd to. [para. 71].

R. v. Moman (R.) (2008), 234 Man.R.(2d) 149; 2008 MBQB 311, refd to. [para. 73].

R. v. Felderhof (J.B.), [2002] O.T.C. 829 (Sup. Ct.), refd to. [para. 75].

Authors and Works Noticed:

Marshall, David T., Canadian Law of Inquests (3rd Ed.), p. 29 [para. 23].

Counsel:

John B. Harvie and Anthony Lafontaine Guerra, for the applicant;

Jim R. Koch, for the Government of Manitoba;

Bruce M. Sychuk, appointed Crown counsel;

J. Graeme E. Young, for Native Women's Transition Centre;

Jurgen W. Feldschmid, for Northern Authority;

Harold Cochrane, for ANCR.

This motion was heard by Joyal, C.J.Q.B., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on February 27, 2013.