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JR - Statutory Power of Decision (2). Deskin v. Ontario
In Deskin v. Ontario (Div Court, 2023) the Divisional Court considered a JR against a provincial decision which "gave six months notice to the Applicants that payments for therapy that they had been receiving for 15 years for their autistic children (now adults) to fund Applied Behavioural Analysis (“ABA”) (also called Intensive Behavioural Intervention or “IBI”)".
These quotes consider the non-Charter JR-'justiciability' of this issue, which was decided against the applicants on the basis that the decision was not one grounded in a 'statutory power of decision' (neither the predecessor CFSA nor the current CYFSA), but was rather a common law government funding/spending decision which not not judicially-reviewable:[22] It is the position of the Applicants that the Funding was made under statute, first the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”) and then the replacement legislation, the Child, Youth and Family Services Act, 2017, S.O.2017, c.14, Sched. 1 (“CYFSA”). Ontario’s position is that the Funding was not granted pursuant to the authority of any statute or contract. Rather, the funding was made by the Ministry under the Crown’s common law spending power, described as “the authority to do anything that it is not legally prohibited from doing.”[7]
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Issue 1: Is the Judicial Review Application, apart from the Charter Claims, Justiciable?
[55] At the hearing, we made a ruling with reasons to follow that apart from the Charter claims, the judicial review application was not justiciable. These are the reasons on the issue of justiciability.
[56] The Applicants submit that the decision is justiciable because the funding was authorized by and developed under statute, in this case s. 7 of the CFSA and then s. 25 of the CYFSA”. They rely on Ministry financial accounts that indicate that the court-ordered funding is a special service within the legislation. They argue that the letter of August 30, 2006 “makes promises that echo in the statutory language.”
[57] Section 7 of the CFSA provides:Provision of services directly or by purchase
s. 7 (1) The Minister may,
(a) provide services and establish, operate and maintain facilities for the provision of services; and
(b) make agreements with persons, municipalities and agencies for the provision of services,
and may make payments for those services and facilities out of legislative appropriations.
Grants and contributions for services, consultation, etc.
(2) The Minister may make grants and contributions, out of legislative appropriations, to any person, organization or municipality for consultation, research and evaluation with respect to services and for the provision of services. [58] Sections 25 the CYFSA provides:Provision of services directly or by others
s. 25 The Minister may,
(a) provide services;
(b) establish, operate and maintain premises for the provision of services;
(c) provide funding, pursuant to agreements, to persons, agencies, municipalities, organizations and other prescribed entities,
(i) for the provision or coordination of services by them,
(ii) for the acquisition, maintenance or operation of premises used for the provision or coordination of services,
(iii) for the establishment of advisory groups or committees with respect to services,
(iv) for research, evaluation, planning, development, co-ordination or redesign with respect to services,
(v) for any other prescribed purpose; and
(d) provide funding, pursuant to agreements, to lead agencies with respect to the performance of the functions referred to in subsection 30(5). [59] There is nothing in s. 7 of the CFSA or s. 25 of the CYFSA that requires Ontario to provide funding for ABA to the Applicants. Absent bad faith or an improper purpose, the funding decisions of the government are “political” (i.e., policy-based and discretionary), not judicial or “quasi-judicial”, and do not attract judicial review (except under the Charter).[8]
[60] The Applicants submit that the Funding was a stopgap measure and an operational step which was intended to bridge the gap until the parties transitioned into mainstream adult services which then lingered on. They argue that this was not a core policy decision (and therefore arguably not justiciable) because it affected a small group of vulnerable individuals who could not effectively seek redress at the ballot box and it is therefore justiciable. They rely on the factors set out by the Supreme Court of Canada in Nelson v. Marchi, and recently applied by the Court of Appeal for Ontario in Leroux v. Ontario, to argue that “Crown Immunity does not apply.”[9]
[61] Those cases dealt with whether a governmental decision is a “core policy decision” immune from liability in negligence, not whether a decision is susceptible to public law remedies such as certiorari. They are distinct legal frameworks. The “core policy” analysis forms part of the second stage of the Anns/Cooper test for liability in negligence. It has no bearing on an application for judicial review.[10]
[62] In Wise Elephant Family Health Team v. Ontario[11], this court held that a decision to terminate a health clinic’s funding agreement was not justiciable. It cited Paine v. University of Toronto (1981), 1981 CanLII 1921 (ON CA), 34 O.R. (2d) 770 (C.A.), at p. 722:It is not enough that the impugned decision be made in the exercise of a power conferred by or under a statute; it … must be a specific power or right to make the very decision in issue. [63] Section 25 of the CYFSA or section 7 of its predecessor legislation, the CFSA, empowers the Minister to provide services and to provide funding pursuant to “agreements”. There is no specific power or right to provide funding for ABA.
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[67] In Hamilton-Wentworth v. Ontario, the Divisional Court held that it is not for the court to oversee the Crown in its discretionary expenditure of public funds. Rather, funding decisions are political, and not judicial, issues.[13] In that case, the government of Ontario made a commitment to the City of Hamilton to contribute 70 per cent of the cost to construct the Red Hill Valley Parkway. The funding allocation was a special commitment outside the Ministry’s normal allocation for the construction and maintenance of existing roads.[14] No contract was signed, but construction was started, and funding provided. In 1990, a new provincial government was elected that declined to continue funding the construction.
[68] On judicial review, the Court held that “the government has the right to order its priorities and direct its fiscal resources towards those initiatives or programs which are most compatible with the policy decisions guiding that particular government’s action. This was simply a statement of funding policy and priorities and not the exercise of a statutory power of decision attracting judicial review.”[15] As a funding decision that was not subject to judicial review, the court had no authority to direct the government to expend funds in any particular way, nor was an undertaking to provide funding binding on future governments.[16]
[69] The principles in Hamilton-Wentworth have been applied in a variety of cases concerning child welfare and the funding of services for persons with disabilities.
[70] Bowman v. Ontario[17] dealt with Ontario’s decision to wind down a pilot project for basic income just one year into the three-year program the prior government had promised. The applicants in that case applied for judicial review, arguing that the decision to cancel the program "had a devastating impact on them and ... as a result of the cancellation, their futures are in jeopardy, their health has suffered, and their futures are uncertain."[18] The applicants in Bowman acknowledged that no legal authority required Ontario to continue funding the project, but argued that cancelling it adversely affected their well-being and that they had relied on the project to their detriment.[19]
[71] The Divisional Court held that the decision to wind down the project was not judicially reviewable, because courts have no authority to review funding decisions. The responsibility for the management of public funds rests with the government and not the court, as does the correctness of the government's decisions and policies. Moreover, the fact that funds were provided in the past does not mean government must continue to offer the same level of service, nor does the decision to reduce or eliminate funding alone create enforceable rights.[20]
[72] In Children’s Aid Society of Huron-Perth, a collection of Children’s Aid Societies (“CAS”) challenged a government decision to reduce funding to the group of CAS. The Court dismissed the application for judicial review, holding that "the government has a right to allocate public funds as it sees fit, and the exercise of that right cannot be the subject of judicial review in the absence of bad faith or for an improper purpose."[21]
[73] Similarly, in Shah v. Ontario, an adult with autism and other developmental disabilities sought judicial review of a Ministry decision not to grant additional funding so that he could live at home. Endorsing the approach of the Court in Hamilton-Wentworth, the Court held that funding decisions were a "question of allocation of scarce resources among the developmentally handicapped persons in the region" and were "not amenable to judicial review."[22]
[74] Likewise, in Kuki v. Ontario, the Ministry of Training, Colleges and Universities had established a skills training program for unemployed individuals. The Court held that the Crown has the authority to establish programs for the benefit of the public as it sees fit, and that programs created outside of statutory authority were not reviewable by the courts.[23] Furthermore, the decision of the Ministry to define eligibility under the program was not reviewable as it was a decision for the disbursement of public funds.[24]
[75] In Metropolitan General Hospital, on judicial review, the Court declined to order the Minister of Health to reinstate funding for hospital beds stating:10. It follows and has been long held that a Minster cannot be required by mandamus or otherwise to make a particular expenditure ...
13. ... The Minister has filed much material to justify the merits of his decision but I make no comment upon it or upon the case presented by the applicant because in my view it is not for me or any Court to oversee the Minister in his policy decisions or in the exercise of his discretion in the expenditure of public funds entrusted to his Department by the Legislature...the wisdom of the decision can never be the subject of judicial review. It is a political and not a judicial problem. [25] [76] The decision in Hamilton-Wentworth and the decisions which have applied it are the appropriate authorities to consider in this case. I disagree with the Deskin Applicants’ submission that Tesla Motors Canada ULC v. Ontario (Ministry of Transportation) [Tesla][26] supports the justiciability of the Decision. Tesla confirms that purely political matters like a decision to cancel a subsidy program are not subject to judicial review. A cabinet decision to exclude Tesla from the program was found to be justiciable due to bad faith in singling out Tesla to be excluded without providing any opportunity to be heard or any fair procedure whatsoever. These facts are distinguishable from the facts in this case where bad faith is not alleged.
[77] Here, after the Ontario Court of Appeal in Wynberg dismissed the Applicants’ claims, the Ministry undertook during the transition to adult mainstream services to temporarily continue the funding they had been receiving pursuant to the interlocutory court order. The Funding was not mandated under any statute. The general provisions of the CFSA or the CYFSA cited by the Applicants do not require that the Minister maintain the Funding for the Applicants. Rather, the Funding was a discretionary expenditure outside the Ministry’s normal allocation for adult developmental disabilities, not the exercise of a statutory power of decision attracting judicial review. The decision to reduce or eliminate funding alone does not create enforceable rights.[27]
[78] The government has the right to order its priorities and direct its fiscal resources towards those initiatives or programs which are most compatible with the policy decisions guiding that particular government’s action. In these circumstances, the court has no authority to direct the government to expend funds in any particular way. Absent bad faith or an improper purpose which is not alleged or supported by the evidence, Ontario’s Decision to discontinue the Funding (apart from the Charter claims discussed below) is not justiciable. . Deokaran v. Law Society Tribunal and Law Society of Ontario
In Deokaran v. Law Society Tribunal and Law Society of Ontario (Div Court, 2023) the Divisional Court considered whether the 'transfer' of a complaint by a party as to a tribunal's staffing constituted a 'statutory power of decision' and was thus judicially reviewable:[19] Ms. Deokaran also submits that the decision of the Law Society not to proceed with her complaint against Mr. Mercer, but instead direct the complaint to the Tribunal, constituted a final decision. I do not view the decision as final, since the complaint was directed to the Tribunal, where it has been put on hold but has not been finally disposed of. If viewed in isolation, the Law Society’s decision not to proceed with the complaint itself (but instead transfer it), does not constitute the exercise of a “statutory power of decision” under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 and, therefore, is not susceptible to judicial review: PC Ontario Fund v. Essensa, 2012 ONCA 453, [2012] O.J. No. 2908, at paras. 11-12; Patel v. The Law Society of Ontario, 2022 ONSC 7146, [2022] O.J. No. 5711, at para. 7. . Reisdorf v. Canada (Attorney General)
In Reisdorf v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal from a dismissal of a JR, here where the applicant argued that an administrative email response "setting out CBSA’s views on how the relevant legislation and investigative processes work" was justiciable (it wasn't, as it wasn't a "decision"):[5] We do not endorse the Federal Court’s reasons. That said, we see no reason to interfere with its decision because we agree that the CBSA email in question is not a matter that is amenable to judicial review.
[6] Under the Federal Courts Act, judicial review is available in respect of a wide range of matters, including orders and decisions issued by federal decision makers. However, the case law recognizes that such matters do not include situations where the conduct at issue in the judicial review application fails to affect legal rights, impose legal obligations, or cause prejudicial effects: Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605 at paras. 24, 29; Democracy Watch v. Conflict of Interest and Ethics Commissioner, 2009 FCA 15, 175 A.C.W.S. (3d) 303 at paras. 9-13, leave to appeal to SCC refused, 33086 (11 June 2009) [Democracy Watch].
[7] As was the case with the appellants in Democracy Watch, the appellants in the present appeal have no right to request or obtain a ruling from CBSA on their request. The right to request an advance ruling under section 43.1 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) is limited to specific goods and may be made only by designated members of a prescribed class, as set out in the regulations, which do not include the appellants (see Tariff Classification Advance Rulings Regulations, SOR/2005-256, s. 2.).
[8] Perhaps more importantly, the CBSA email in question does not decide anything at all in respect of the importation of goods from Xinjiang, China. Rather, the email is merely a courtesy reply, thanking the appellants for their inquiry and setting out CBSA’s views on how the relevant legislation and investigative processes work. . Segura Mosquera v Child and Family Services Review Board
In Segura Mosquera v Child and Family Services Review Board (Div Court, 2023) the Divisional Court addressed the procedure used to invoke R2.1.01 ['Stay, Dismissal of Frivolous, Vexatious, Abusive Proceeding'], which states that: "(t)he court may, on its own initiative". Here the underlying proceeding was a JR against a police service (although an IPC order under MFIPPA was identified as 'the decision to be reviewed'), and the respondent used a court 'requisition' to the Registrar to initiate R2.1.01.
In these quotes the court considers (and dismisses) the underlying JR as being not justiciable under the JRPA, here under the 'statutory power of decision' category:[12] Section 2(1) of the Judicial Review Procedure Act sets out the Divisional Court’s jurisdiction to hear an application for judicial review. That jurisdiction rests on the availability of the traditional prerogative writs and, more broadly, on the exercise of a statutory power of decision. In order to be subject to judicial review, a statutory power of decision “must be a specific power or right to make the very decision in issue”: Paine v. University of Toronto, at p. 722.[9]
[13] On its face, the application for judicial review against the OPS is frivolous because the decision the applicant seeks to challenge is that of the IPC – MO-4118 – and not a decision of the OPS.
[14] In addition, the decision under judicial review must relate to a power “conferred ‘by or under a statute’…There must be a specific power or right to make the very decision in issue”: McLeod v. City of Brantford, at paras. 9-12[10] (emphasis added). Unspecified “policies and procedures” cannot be judicially reviewed. The applicant’s written submissions confirm that what the applicant appears to seek is an audit of the OPS’ policies and procedures. For example, the applicant states in her written submissions that one of the issues the OPS “must respond to in this proceeding” is “whether the OPS is erring by keeping in its databases and record systems outdated records that no longer reflect the situation of the involved individuals?” An audit is not within the purview of judicial review under the Judicial Review Procedure Act. . Endicott v Independent Police Review Director
In Endicott v Independent Police Review Director (Ont CA, 2014) the Court of Appeal considers whether a decision of the Independent Police Review Director (OIPRD) to not pursue a complaint about police behaviour [under PSA s.60] constituted a 'statutory power of decision', here to determine whether the OIPRD had a duty to file their record under JRPA s.10 in a judicial review:Was the Director’s decision the exercise of a statutory power of decision?
[19] The respondent maintains that the Director’s decision was a “decision deciding or prescribing” her “legal rights”. This would bring the Director’s decision squarely within subparagraph (a) of the definition of “statutory power of decision” in the JRPA. (The respondent has not advanced any argument under subparagraph (b).) Both the motion judge and full panel of the Divisional Court agreed. Because the Director’s decision was one that affected the respondent’s rights, when the Director was served with a judicial review application, he was, in the respondent’s submission, required to “file in the court for use on the application the record of the proceedings in which the decision was made.”
[20] The Director, however, argues that the Divisional Court erred in its understanding of the way in which the complaint process operates pursuant to the PSA. Central to the Director’s argument is his position that the complainant does not have a “right” to have a complaint dealt with in any particular way. In the Director’s submission, the PSA gives him broad statutory discretion to “screen out” complaints. This discretion to screen out complaints, when exercised, does not meet the definition of a statutory power of decision. The party making the complaint has no “legal right” that is engaged when the screening process is used by the Director. In the Director’s submission, the decision under appeal runs counter to the established jurisprudence recognizing that discretionary decisions by a tribunal as to whether or not a matter should be investigated are found not to be the exercise of statutory powers of decision.
[21] The Director further submits that because a record of proceedings is not defined in the JRPA, but is defined in s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), a record of proceedings should only be required where the SPPA applies to a decision. For the SPPA to apply to a decision there must have been a “proceeding” as provided in s. 3 of the SPPA, namely a proceeding “where the tribunal is required … to afford to the parties to the proceeding an opportunity for a hearing before making a decision.” Clearly, the Director’s decision to screen out the respondent’s complaints was not a proceeding as contemplated by the SPPA because no hearing was held, nor has it been argued that the Director was under any obligation to afford to the respondent or to any other “party” the opportunity for one. This, in the Director’s submission, lends further support to his position.
[22] The Director maintains that the Divisional Court’s decision would seriously impair his ability to screen out complaints as intended by the PSA. If decisions to screen out complaints are held to be the exercise of a statutory power of decision affecting a complainant’s rights, then, the Director argues, such decisions will be impressed with additional fairness requirements including the requirement to give notice to the complainant and to give the complainant the opportunity to make submissions. This would result in the process being bogged down in unnecessary process and procedure, thereby defeating the intention of the legislature that the complaint process set up under the PSA strike an appropriate balance between the right of a complainant to fairly bring forward a complaint and have it investigated and dealt with properly, while at the same time allowing the Director broad discretion to screen out complaints that are without foundation or that, for other reasons outlined in s. 60, ought not to be pursued.
[23] I would not give effect to the Director’s submissions. In my view, the Divisional Court correctly interpreted the statutory complaint scheme created by the PSA. As I will explain, a proper reading of the relevant statutory provisions makes it clear that a person who lodges a complaint has the right to have that complaint pursued unless a decision is taken by the Director pursuant to the PSA that the complaint should be screened out. The complainant’s right to have the complaint pursued is thereby ended; in other words, the complainant’s legal right is thereby “decided”.
[24] I turn now to the statutory provisions of the PSA. As repeatedly affirmed by the Supreme Court of Canada, the “modern principle” of statutory interpretation is that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Re Rizzo and Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21 (quoting Elmer Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983)).
[25] It is immediately apparent that the statutory provisions of the PSA establishing the complaints procedure and assigning to the Director his role are quite different from the complaint procedures set out in other statutes cited by the Director as being comparable. The Director has, for example, referred the court to s. 75(1) of the Health Professions Procedural Code (“HPPC”), being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. The complaint procedure established by s. 75(1) was interpreted in Batacharya v. The College of Midwives of Ontario, 2012 ONSC 1072, and the court determined in that case that a decision by the college’s registrar not to pursue a complaint did not constitute the exercise of a statutory power of decision. The statutory provision in the HPPC, however, does not require the registrar to proceed with a complaint. To the contrary, a decision has to be made for the complaint to be pursued. The wording of s. 75(1) is that “[t]he Registrar may appoint one or more investigators to determine whether a member has committed an act of professional misconduct …” (emphasis added). The discretion is exercised to allow a complaint to be pursued.
[26] By contrast, s. 59(1) of the PSA provides that the Director “shall review every complaint … and shall determine whether the complaint is about the policies of or services provided by a police force or about the conduct of a police officer” (emphasis added). The complainant is therefore assured by statute, that unless the director decides otherwise, the complaint will be pursued. A determination will first be made as to whether the complaint is about a policy or service of the police force or about the conduct of a police officer. Section 59(2) then provides that “[s]ubject to section 60, the Independent Police Review Director shall ensure that every complaint reviewed under subsection (1) is referred or retained and dealt with in accordance with section 61” (emphasis added). Section 61 of the PSA directs how various complaints are to be dealt with on the merits.
[27] The use of “shall” in these provisions, as a matter of both grammatical and ordinary sense and of established legislative usage, imposes statutory obligations on the Director, upon receipt of a complaint from a member of the public, to pursue the complaint. The Director must deal with the complaint in accordance with the provisions of the PSA. His discretion to “screen out” certain complaints is circumscribed and requires a decision. Section 60 provides that the director “may … decide not to deal with a complaint”. Absent a decision by the Director, the complaint must be dealt with in accordance with the terms of the PSA. The statute gives the complainant that right. Unlike other statutes such as the HPPC, the Director’s discretion is not in deciding whether he will deal with a complaint. Rather, his discretion is deciding whether to stop a complaint from proceeding in accordance with the process established by the PSA. In fact, all complaints, even those that are susceptible to being screened out pursuant to s. 60 are, absent a decision by the Director to screen them out, dealt with and investigated. The PSA states only that he “may” decide not to deal with a complaint that falls within one of the categories listed in s. 60. Therefore, absent intervention, s. 59 ensures that the complaint will be pursued and investigated in accordance with the process set out in s. 61.
[28] My conclusion that the Director’s decision to screen out the respondent’s complaints is the exercise of a statutory power of decision does not, as the Director suggests, mean that the SPPA applies to that decision or that additional fairness requirements are imposed on the Director in carrying out his screening out function. The respondent’s right to have the complaint dealt with in accordance with the PSA comes with the limits to that right imposed by the PSA. It is beyond the scope of this appeal to define what limits or procedural requirements may be imposed by the PSA on a director’s discretion to screen out a complaint. Suffice it to say that the PSA does not contemplate the need for a hearing or notice, nor does it impose any specific procedural requirement. The PSA gives the Director broad discretion to screen out complaints and to do so before any investigation as provided in s. 61 is undertaken. No hearing or proceeding is contemplated at the weeding out stage. The SPPA, therefore, has no application and the concerns raised by the Director that the complaints process will be bogged down with procedural requirements is without foundation.
[29] My conclusion that the complainant has a right to have the complaint proceed in accordance with the PSA does not mean that the complainant has an unqualified right to have the complaint proceed to the investigation stage. It is presumed that the complaint will proceed to investigation but that presumption is qualified. The legislature has given the Director broad discretion in s. 60 to screen out complaints without an investigation being undertaken.
[30] The Director’s broad power to screen out complaints provides the balance in the complaint procedure that former Chief Justice of the Superior Court of Justice, the Honourable Patrick LeSage, considered necessary. The changes to the police complaints system that are now the subject of this appeal had their genesis in the report authored by Mr. LeSage: Report on the Police Complaints System in Ontario by Patrick J. LeSage (Toronto: Ministry of the Attorney General of Ontario, 2005). Therein, he expressed the view that access to the complaint process should be made easier for those with legitimate complaints about the police but also recognized that increasing access to the complaints system could tax the system’s resources. As he explained, at p. 64:Removing the current systemic barriers to the reception of complaints needs to be balanced by conferring greater discretion on the recipient of complaints to determine whether a complaint should be pursued. There will be cases where the evidence to support a complaint is so tenuous that resources should not be expended to pursue them. Also, there will be cases where the “complaint” is really not one that is suitable for the complaints system to resolve. For example, a dispute as to whether a traffic ticket has been wrongly issued is a matter for the courts. While the current system allows a chief of police’s decisions to not pursue a complaint to be reviewable by OCCOPS, such a review is time intensive and inimical to the efficient resolution of complaints.
Facilitating access should mean the reception of all complaints, but it also requires that judicious screening of complaints be made as early as possible to protect the integrity of the system. [31] Before turning to the second issue, I will respond to the Director’s submission that the decision in Jacko v. Ontario (Chief Coroner) (2008), 2008 CanLII 69579 (ON SCDC), 306 D.L.R. (4th) 126 (Div. Ct.), lends strong support to his position that the exercise of his discretion to screen out a complaint is not the exercise of a statutory power of decision.
[32] In Jacko, the Jacko family asked the coroner to conduct an inquest into the death of their son. When the coroner declined to do so, the family applied for judicial review and sought to have the coroner produce a record of proceedings. Thus, the Divisional Court was faced with the question whether the coroner’s decision not to proceed with an inquest was the exercise of a statutory power of decision within the meaning of s. 10 of the JRPA. Although arising in the context of different legislation, namely, the Coroners Act, R.S.O. 1990, c. C.37, the question before the court in Jacko was the same question posed in the present case.
[33] Section 20 of the Coroners Act lists a number of considerations that the coroner is to take into account when making a determination whether an inquest is necessary or unnecessary. If the coroner decides that an inquest is unnecessary, certain relatives of the deceased are empowered by s. 26 of the Coroners Act to ask for a review of that decision. The section affords them the opportunity to state the reasons for their request either personally, by an agent or in writing. The coroner is then to advise the person in writing of his or her decision and, where the decision is not to hold an inquest, reasons for the decision are to be provided in writing. The relative is also provided with the right to request that the chief coroner review the coroner’s decision. The section further provides for a similar process allowing the relative to submit reasons for requesting the inquest to the chief coroner for purposes of the chief coroner’s review and states that the decision of the chief coroner is final.
[34] The Divisional Court in Jacko found that the coroner’s decision whether or not to hold an inquest was based purely on the public interest and not on any “rights” of the deceased’s family. The coroner’s decision, therefore, was not the exercise of a statutory power of decision.
[35] In my view, Jacko can be distinguished. The statutory scheme established by the Coroners Act is significantly different from the scheme set up under the PSA. Section 59 of the PSA imposes a statutory obligation on the Director to deal with a complaint as provided in s. 61 unless the Director determines that the complaint falls within the criteria set out in s. 60 and he decides not to deal with the complaint. A complainant under the PSA therefore has a right to have the complaint dealt with in accordance with s. 61 unless those two conditions are met.
[36] By contrast, there is no default requirement under the Coroners Act that, absent a screening out decision, a relative’s request under s. 26 is to result in an inquest or further investigation of the case. The relative’s request is to have the coroner reconsider a decision already made not to hold an inquest. That case does not, in my view, assist the Director.
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