Reference no: EM133104067

OVERVIEW

[1] On May 7, 2014, Brody, a four-year-old boy from Sandy Lake First Nation, died of complications from strep throat. Following an allegedly flawed coronial investigation into Brody's death, the issue in this appeal is whether the family of Brody may proceed with an action for damages, either in tort law against individual coroners, or under the Canadian Charter of Rights and Freedoms against the province of Ontario.

[2] Sandy Lake First Nation is a remote fly-in Oji-Cree community located in northwestern Ontario. Like those of many remote Indigenous and northern communities, the residents of Sandy Lake First Nation face significant challenges in receiving various public services, such as those offered by the Office of the Chief Coroner for Ontario (the "OCCO") under the Coroners Act, R.S.O. 1990, c. C.37 (the "Act").

[3] The respondent Dr. Wojciech Aniol was the coroner assigned to investigate Brody's death pursuant to the Coroners Act. Dr. Aniol did not attend in person at Sandy Lake First Nation during his investigation. He ultimately declined to recommend an inquest into Brody's death.

[4] The respondents Dr. Dirk Huyer, the Chief Coroner for Ontario, and Dr. Michael Wilson, the Regional Supervising Coroner (North Region), were responsible for supervising Dr. Aniol's investigation and otherwise administering the Coroners Act in Sandy Lake First Nation at the time of Brody's death.

[5] The respondent Ontario, through the Ministry of Community Safety and Correctional Services (now called the Ministry of the Solicitor General), was responsible for provincial coronial services offered by the OCCO under the Coroners Act at all relevant times.

[6] The appellants are Brody's parents, grandparents, and siblings. They are all residents of Sandy Lake First Nation and have status pursuant to the Indian Act, R.S.C. 1985, c. I-5.

[7] In 2016, the appellants brought a civil claim against the respondents concerning the OCCO's investigation into Brody's death. Their claim makes the following core allegations: (i) the nature of Dr. Aniol's investigation and his decision not to recommend an inquest, in light of known harms arising from the long-standing pattern of inadequate and discriminatory coronial investigations into child deaths on reserve, constituted misfeasance in public office; (ii) Drs. Huyer and Wilson were negligent in their supervision of Dr. Aniol's investigation; and (iii) Ontario is responsible in law for the coroners' conduct, which amounted to discrimination on the basis of race, ethnic origin, and/or on-reserve residency contrary to s. 15 of the Charter.

[8] In April 2019, the respondents succeeded on their motion to strike the appellants' claim in its entirety, without leave to amend. Pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the motion judge concluded the appellants' claim disclosed no reasonable cause of action.

[9] On appeal, the appellants contend the motion judge misapplied the test on a r. 21.01(1)(b) motion and erroneously struck their claim. They say they pleaded all the elements necessary to establish several of the causes of action alleged. The appellants therefore urge this court to permit their claim to proceed to trial.

In groups of three, respond to the following:

1. A Coroner's Inquest is a form of Administrative Law. In order to have authority, the Coroner's Inquest relies upon an enacted statute.  Identify the statute that applies in this matter.
2. Give a brief description of the purpose of a Coroner's Inquest.
3. Brody's family is alleging racism. If this is proven true, how would this impact the requirement for procedural fairness in Administrative Law?
4. Describe what a Privity Clause is.
5. Section 53 of the Coroners Act contains the following Privity Clause. 

53 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.  2009, c. 15, s. 27.

Considering the privity clause in this statute, explain why the Court of Appeal could consider interfering with the decision of Dr. Aniol. 

1. Define the concept of Duty of Care.
2. As a professional, what duty of care does Dr. Aniol owe to Brody's family when making his decision.
3. Explain how Dr. Aniol can be liable for the tort of misfeasance of public office despite that the evidence shows he is following the rules of the Coroners Act.
4. You be the (Appeal Court) Judge.  Based on the little information you have, should Brody's family be granted their appeal to have a trial, or should the decision of Dr. Aniol be allowed to stand?  Explain your answer.