Sears Canada Inc. v. Southwest Region Regional Coroner, (1997) 102 O.A.C. 60 (DC)

• Judge: Adams, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: April 04, 1997
• Jurisdiction: Ontario
• Citations: (1997), 102 O.A.C. 60 (DC)

Sears Can. Inc. v. Reg. Coroner (1997), 102 O.A.C. 60 (DC)

MLB headnote and full text

Temp. Cite: O.A.C. TBEd. AP.014

In The Matter of the Coroner's Inquest into the Deaths of Russell Davis and Theresa Vince pursuant to the Coroners Act, R.S.O. 1990, c. C-37

And In The Matter of the Coroner's Ruling dated February 13, 1997

Sears Canada Inc. (applicants) v. Dr. Thomas N. Wilson, Regional Coroner, Southwest Region (respondent)

(Court File No. 156/97)

Indexed As: Sears Canada Inc. v. Southwest Region Regional Coroner

Ontario Court of Justice

General Division

Divisional Court

Adams, J.

April 4, 1997.

Summary:

In June 1996 police found the bodies of Davis and Vince in the Sears Chatham store, both individuals having been fatally wounded by gunshot. A police investigation concluded that Davis shot Vince and then himself. Further investigation revealed that Vince had informed Sears' senior manage­ment that Davis was harassing her. An inquest into the matter was announced in September 1996. Because of Vince's com­plaint, sexual harassment as well as workplace violence and occupational health and safety were to be considered. During the inquest Sears sought: (1) judicial review of the inquest proceedings, including an order to quash; (2) an order prohibiting the presid­ing Coroner from continuing; (3) an order requiring a new Coroner; (4) an order quashing one of the Coroner's rulings, and many other requests relating to the inquest. The Southwest Regional Coroner sought to quash the judicial review application for prematurity. Prior to the hearing, the Cor­oner who was hearing the inquest stepped down and a new Coroner appointed.

The Ontario Divisional Court declined to quash the judicial review application and then dealt with the issues in the application accordingly. The court concluded that the application should be dismissed.

Coroners - Topic 1001

Powers - General - The Ontario Divi­sional Court reviewed scope of a Coron­er's power stating that the Coroner was the master of his or her procedures - "Inquest proceedings can become very complex and emotional ... A court should not be asked to simply second guess the procedural rulings of these experienced officials" - See para­graphs 12 to 17.

Coroners - Topic 4001

Inquests - Nature of inquest - The Ontario Divisional Court stated that an inquest was not an adversary trial with a lis between parties - "Indeed, there is no lis or dispute and rights are not being determined" - See paragraph 10.

Coroners - Topic 4003

Inquests - Functions of coroner - The Ontario Divisional Court reviewed the functions and powers of a coroner - See paragraphs 10 to 17.

Coroners - Topic 4061

Inquests - Judicial review - General - [See Coroners - Topic 7404 ].

Coroners - Topic 7404

Judicial review - General - Interim appli­cations - In June 1996 police found the bodies of Davis and Vince in the Sears Chatham store, both individuals having been fatally wounded by gunshot - A police investigation concluded that Davis shot Vince and then himself - Further investigation revealed that Vince had informed Sears' senior management that Davis was harassing her - An inquest into the matter was announced in September 1996 - Because of Vince's complaint, sexual harassment as well as workplace violence and occupational health and safe­ty were to be considered - During the inquest Sears sought, inter alia, judicial review of the inquest proceedings, includ­ing an order to quash - The Southwest Regional Coroner sought to quash the judicial review application for prematurity - The Ontario Divisional Court declined to quash the judicial review application for prematurity, stating that it had jurisdiction to deal with the matter - See paragraphs 1 to 17.

Coroners - Topic 7424

Judicial review - Grounds - Apprehension of bias - Police investigation into the death of two employees (Davis and Vince) of the Sears Chatham store concluded that Davis shot Vince and then himself - Fur­ther investigation revealed that Vince had informed Sears' senior management that Davis was harassing her - An inquest into the matter was announced in September 1996 - During the proceeding an issue arose concerning the right and propriety of Sears' counsel to contact and or act on behalf of any non-management employees who could be called to testify - The Cor­oner reviewed the evidence and after mak­ing some critical remarks, restricted Sears' counsel's contact with the employees - Although the jury was not present for the ruling, it was reported in the press - Sears alleged, inter alia, that the Coroner's actions gave rise to a reasonable appre­hension of bias - The Ontario Divisional Court rejected the argument where the Coroner had been replaced and where the publicity could be dealt with in the Coron­er's instructions to the jury - See para­graphs 1 to 16.

Courts - Topic 7503

Provincial Courts - Ontario - Divisional Court - Jurisdiction - Respecting judicial review - General - The Ontario Divisional Court stated that a Divisional Court motions judge had jurisdiction to entertain a motion to quash or to declare an appli­cation for judicial review premature, just as that same judge could entertain a mo­tion to stay the determination of an ad­ministrative tribunal pending judicial re­view - The court further noted that it would not intervene during the course of proceedings of an inferior tribunal except in exceptional circumstances - "This approach is based on the reason that the work of these important bodies would otherwise become irreparably fragmented and delayed with both single and multiple trips 'up the judicial ladder' ... The excep­tion to this procedural deference is where an application for judicial review raises serious concerns, which if they material­ized, would likely result in a fundamental failing of justice" - See paragraphs 9 to 16.

Cases Noticed:

Jafine v. College of Veterinarians (Ont.) (1991), 5 O.R.(3d) 439 (Gen. Div.), refd to. [para. 9].

University of Toronto v. Canadian Union of Educational Workers, Local 2 (1988), 28 O.A.C. 295; 65 O.R.(2d) 268 (Div. Ct.), refd to. [para. 11].

Ontario College of Art et al. v. Human Rights Commission (Ont.) (1993), 63 O.A.C. 393; 99 D.L.R.(4th) 738 (Div. Ct.), refd to. [para. 11].

Howe v. Institute of Chartered Accountants (Ont.) (1994), 74 O.A.C. 26; 19 O.R.(3d) 483 (C.A.), refd to. [para. 11].

Black Action Defence Committee v. Hux­ter (1992), 59 O.A.C. 327; 11 O.R.(3d) 641 (Div. Ct.), refd to. [para. 12].

Consumers Gas Co. v. Coroner, Ottawa-Carleton Region (1988), 28 O.A.C. 356; 9 A.C.W.S.(3d) 187 (Div. Ct.), refd to. [para. 12].

Philips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1; 124 D.L.R.(4th) 129, refd to. [para. 12].

Beckon v. Deputy Chief Coroner (Ont.) (1992), 57 O.A.C. 21; 9 O.R.(3d) 256 (C.A.), refd to. [para. 12].

People First of Ontario et al. v. Regional Coroner of Niagara et al. (1991), 50 O.A.C. 90; 5 O.R.(3d) 609 (Div. Ct.), revd. (1992), 54 O.A.C. 187; 6 O.R.(3d) 289 (C.A.), refd to. [para. 12].

Booth et al. v. Huxter (1994), 69 O.A.C. 10; 16 O.R.(3d) 528 (Div. Ct.), refd to. [para. 13].

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241; 77 D.L.R.(4th) 249; [1991] 1 W.W.R. 705, refd to. [para. 13].

Gray, Administrator of MacDonald Estate - see MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd.

Martin v. Gray - see MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd.

Counsel:

Jerome R. Morse and Elizabeth K.P. Grace, for Sears Canada Inc.;

Sara Blake, for the Regional Coroner, Dr. Thomas Wilson;

Brian E. Chambers, for the Davis Family;

Geri Sanson, for the Coalition;

Leslie Reaume, for the Vince Family.

This action was heard on April 4, 1997, before Adams, J., of the Ontario Divisional Court, who delivered the following judgment orally on April 4, 1997, and released the written decision on April 10, 1997.