Forestell v. Regional Health Authority B, 2014 NBCA 40

• Judge: Larlee, Robertson and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 13, 2014
• Jurisdiction: New Brunswick
• Citations: 2014 NBCA 40;(2014), 425 N.B.R.(2d) 46 (CA)

Forestell v. Health Authority (2014), 425 N.B.R.(2d) 46 (CA);

    425 R.N.-B.(2e) 46; 1107 A.P.R. 46

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.B.R.(2d) TBEd. SE.024

Renvoi temp.: [2014] N.B.R.(2d) TBEd. SE.024

Gregory J. Forestell, Chief Coroner for the Province of New Brunswick, and John Evans, Presiding Coroner (respondents/appellants) v. Regional Health Authority B, operating under the name and style of Horizon Health Network, a body corporate (applicant/respondent)

Gregory J. Forestell, Chief Coroner for the Province of New Brunswick, and John Evans, Presiding Coroner (respondents/appellants) v. Dr. Pamela Forsythe and Dr. Mohammed Hossain (applicants/respondents)

(31-14-CA; 32-14-CA; 2014 NBCA 40)

Indexed As: Forestell v. Regional Health Authority B

Répertorié: Forestell v. Regional Health Authority B

New Brunswick Court of Appeal

Larlee, Robertson and Richard, JJ.A.

June 19, 2014.

Summary:

Résumé:

On February 14, 2012, Perry was found dead in the Amphitheatre of the Saint John Regional Hospital. She had been hospitalized in the psychiatric unit of that facility pursuant to an order made under the Mental Health Act. The autopsy did not definitively identify the cause of the death and the criminal investigation was terminated. The local coroner filed a declaration that an inquest into Perry's death was necessary. Perry's family filed civil lawsuits. The Regional Health Authority and two physicians (the applicants) requested permission for standing at the inquest. The request was refused. The applicants applied for judicial review.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, allowed the applications. The Chief Coroner and Presiding Coroner appealed.

The New Brunswick Court of Appeal allowed the appeal.

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - [See second Coroners - Topic 4022 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See second Coroners - Topic 4022 ].

Administrative Law - Topic 2272

Natural justice - The duty of fairness - Circumstances or powers to which duty applies (incl. extent of duty) - [See second Coroners - Topic 4022 ].

Coroners - Topic 4022

Inquests and fatality inquiries - Procedure - Standing - On February 14, 2012, Perry was found dead in the Amphitheatre of the Saint John Regional Hospital - She had been hospitalized in the psychiatric unit of that facility pursuant to an order made under the Mental Health Act - The autopsy did not definitively identify the cause of the death and the criminal investigation was terminated - The local coroner filed a declaration that an inquest into Perry's death was necessary - The Regional Health Authority and two physicians (the applicants) requested permission for standing at the inquest - The request was refused - The applicants applied for judicial review - The application judge allowed the applications - The Chief Coroner and Presiding Coroner (collectively, the Coroner) appealed - The New Brunswick Court of Appeal allowed the appeal - "In New Brunswick, coroners have neither the authority nor the discretion to grant standing to anyone at an inquest. ... the Coroners Act does not provide standing rights for those who have a substantial interest in the inquest, or even for those whose interests may be directly and substantially affected by the findings of the jury. Because of a unique provision in the New Brunswick legislation, the inquest must be governed by the common law practice as it was before legislative intervention into the institution of coroner, except where the practice has been changed by the Coroners Act. At the relevant time, at common law, the coroner had no authority and hence no discretion to grant anyone standing at an inquest" - See paragraphs 31 to 70.

Coroners - Topic 4022

Inquests and fatality inquiries - Procedure - Standing - On February 14, 2012, Perry was found dead in the Amphitheatre of the Saint John Regional Hospital - She had been hospitalized in the psychiatric unit of that facility pursuant to an order made under the Mental Health Act - The autopsy did not definitively identify the cause of the death and the criminal investigation was terminated - The local coroner filed a declaration that an inquest into Perry's death was necessary - The Regional Health Authority and two physicians (the applicants) requested permission for standing at the inquest - The request was refused - The applicants applied for judicial review - The application judge allowed the applications - The Chief Coroner and Presiding Coroner (collectively, the Coroner) appealed - At issue was whether the applicants were entitled to procedural fairness and, if so, whether they were denied fairness as a result of the Coroner's decision - The New Brunswick Court of Appeal held that the Coroner did not owe a duty of fairness to the applicants - In New Brunswick, coroners had neither the authority nor the discretion to grant standing to anyone at an inquest - Alternatively, even if there was a duty of procedural fairness, it would be met - There was in the New Brunswick coroner's process an opportunity for interested parties to be heard, albeit minimally - Because the Coroner's jury could not make findings of civil fault or criminal liability, any duty of procedural fairness owed to the applicants, if such a duty were to exist, would be minimal - Their opportunity to provide Crown counsel with questions for witnesses would satisfy any such duty - See paragraphs 71 to 87.

Coroners - Cote 4022

Enquêtes - Procédure - Qualité pour agir - [Voir Coroners - Topic 4022 ].

Droit administratif - Cote 2264

Justice naturelle - Devoir d'équité - Application - [Voir Administrative Law - Topic 2264 ].

Droit administratif - Cote 2266

Justice naturelle - Devoir d'équité - Équité procédurale - En quoi consiste - [Voir Administrative Law - Topic 2266 ].

Droit administratif - Cote 2272

Justice naturelle - Devoir d'équité - Circonstances ou pouvoirs assujettis au devoir - [Voir Administrative Law - Topic 2272 ].

Cases Noticed:

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 20].

Faber v. Québec (Procureur général) et Québec (Ministre de la Justice) et autres, [1976] 2 S.C.R. 9; 6 N.R. 1 (Fr.); 8 N.R. 29 (Eng.), refd to. [para. 34].

Grégoire v. Coroner (Campbellton District) and Campbellton Regional Hospital (1988), 89 N.B.R.(2d) 255; 226 A.P.R. 255 (T.D.), refd to. [para. 45].

Burton v. Chief Coroner (N.B.), [1996] N.B.R.(2d) (Supp.) No. 40 (T.D.), refd to. [para. 46].

Breau v. District Coroner (Miramichi) (2001), 242 N.B.R.(2d) 87; 628 A.P.R. 87; 2001 NBQB 168, refd to. [para. 46].

Bellefleur v. Kavanaugh et al. (2002), 255 N.B.R.(2d) 150; 668 A.P.R. 150; 2002 NBQB 354, refd to. [para. 46].

Silverfox v. Chief Coroner (Yuk.) (2013), 342 B.C.A.C. 189; 585 W.A.C. 189; 2013 YKCA 11, refd to. [para. 52].

Wolfe v. Robinson, [1961] O.J. No. 534 (H.C.), affd. [1961] O.J. No. 520 (C.A.), refd to. [para. 55].

Brown et al. and Patterson, Re, [1974] O.J. No. 2189 (Div. Ct.), refd to. [para. 55].

Sidley, Re, [1938] O.J. No. 451 (H.C.), refd to. [para. 57].

Wentzell, Administratrix, etc. of Wentzell v. New Brunswick & Prince Edward Island Railway Company (1915), 43 N.B.R. 475 (S.C.A.D.), refd to. [para. 63].

Lévesque v. New Brunswick et al. (2011), 372 N.B.R.(2d) 202; 961 A.P.R. 202; 2011 NBCA 48, refd to. [para. 70].

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, dist. [para. 71].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 79].

Authors and Works Noticed:

Halsbury's Laws of Canada, Inquests, Coroners and Medical Examiners (2013 Reissue), Investigation of Fatalities in Canada, HCN-1 [para. 35].

Marshall, David, Canadian Law of Inquests: A Handbook for Coroners, Medical Examiners, Counsel and the Police (3rd Ed. 2008), pp. 6, 7 [para. 37]; 13 [para. 32]; 208 [para. 89].

New Brunswick, Legislative Assembly, Synoptic Report of the Proceedings of the Legislature (March 5, 1900), p. 121 [para. 40].

Counsel:

Avocats:

Kelly T. VanBuskirk and Catherine A. Fawcett, for the appellants, Gregory J. Forestell and John Evans;

Regional Healthy Authority B, did not participate;

Robert M. Dysart and Sarah M. Dever Letson, for the respondents, Dr. Pamela Forsythe and Dr. Mohammed Hossain.

This appeal was heard on June 13, 2014, by Larlee, Robertson and Richard, JJ.A., of the New Brunswick Court of Appeal. Judgment was rendered on June 19, 2014, and the following written reasons for judgment were delivered in both official languages by Richard, J.A., on September 18, 2014.