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Judicial Review - Not for Advisory Roles
MORE CASES
Part 2
. Mikisew Cree First Nation v. Canadian Environmental Assessment Agency
In Mikisew Cree First Nation v. Canadian Environmental Assessment Agency (Fed CA, 2023) the Federal Court of Appeal interestingly considered the judicial review of an advisory report, here in relation to a dismissed judicial review of the then federal Minister of Environment and Climate Change declining "to designate an extension of the Horizon Oil Sands Mine (the Horizon Mine) owned by the respondent, Canadian Natural Resources Limited (CNRL), as a reviewable project under subsection 14(2) of the now-repealed Canadian Environmental Assessment Act":[106] In discussing these arguments, it is critical to bear in mind that the decision under review in this appeal is the Minister’s decision not to designate the Extension Project, for which she gave reasons, and not the Agency’s memoranda or report: Tsleil-Watuth Nation v. Canada, 2018 FCA 153, [2018] F.C.J. No. 876 at paras. 4-5, leave to appeal to SCC refused, 38379 (2 May 2019) [Tsleil-Watuth].
[107] This Court has repeatedly held that such reports, produced by responsible authorities under CEAA, 2012, for consideration by the Minister or the Governor in Council (GIC), are not justiciable on their own because they affect no legal rights and carry no legal consequences: see Taseko Mines Limited v. Canada (Environment), 2019 FCA 319, 313 A.C.W.S. (3d) 312 at para. 43, leave to appeal to SCC refused, 39066 (14 May 2020) [Taseko Mines #2] citing Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418, leave to appeal to SCC refused, 37201 (9 February 2017) at paras. 121-123, 125 [Gitxaala Nation] and Tsleil-Watuth at paras. 179-180.
[108] That said, such reports are not entirely shielded from consideration in the judicial review of a subsequent decision made by the GIC or the Minister, where that decision relies on the report at issue: Taseko Mines #2 at para. 45. In the context of a report issued by the National Energy Board (NEB) to the GIC, prior to the GIC’s decision to issue a certificate of public convenience and necessity in respect of the Trans Mountain pipeline extension, this Court held in Tsleil-Watuth at paragraph 201:The Court must be satisfied that the decision of the Governor in Council is lawful, reasonable and constitutionally valid. If the decision of the Governor in Council is based upon a materially flawed report the decision may be set aside on that basis. Put another way, under the legislation the Governor in Council can act only if it has a “report” before it; a materially deficient report, such as one that falls short of legislative standards, is not such a report. In this context the Board’s report may be reviewed to ensure that it was a “report” that the Governor in Council could rely upon. The report is not immune from review by this Court and the Supreme Court.
[Emphasis added] [109] Thus, the test to be applied to the report at issue in that case was whether the report was materially flawed. ... . Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board
In Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board (Ont CA, 2023) the Court of Appeal held that a Board's recommendations to Cabinet were not judicially reviewable since they were not 'decisions', but only advisory in nature:[14] The Divisional Court dismissed CCC’s judicial review application and concluded that the Board’s recommendations were not reviewable because the Board’s authority is confined to making recommendations, not decisions. The Divisional Court only has jurisdiction to grant relief in relation to “decisions.” ... . Murray v. Independent Police Review Director (Ontario)
In Murray v. Independent Police Review Director (Ontario) (Div Court, 2023) the Divisional Court held that an 'advisory' investigative report is not judicially reviewable, as it is not a 'decision':[10] When the OIPRD refers a complaint by a member of the public for investigation by a police service, the professional standards unit (PSU) of that police service investigates the complaint and prepares an investigative report. The investigative report, which contains the PSU’s recommendations regarding the disposition of the complaint, is given to the Chief of the police service to which the subject officer belongs. The Chief then decides whether to adopt the findings in the investigative report. The final decision regarding whether misconduct has been committed by the subject officers (whether the complaint is “substantiated” or “unsubstantiated”) is therefore that of the Chief.
[11] In this matter, the OIPRD referred the investigation of the complaint to the OPP. At the conclusion of the OPP’s investigation, the OPP’s Report was sent to the Chief of the Windsor Police Service to make a final determination of whether the applicant’s allegations were substantiated or unsubstantiated. The Chief determined that they were unsubstantiated.
[12] The OPP Report is not reviewable on judicial review and cannot be quashed by this Court because the OPP acted in an exclusively advisory role; the power of decision regarding whether misconduct was committed by the subject officers was reserved to the Chief of the Windsor Police Service. The Chief was not bound by the opinion and recommendations in the OPP Report when he made his decision regarding the conduct of the subject officers.
[13] As recently stated by this Court (Canada Christian College and School of Graduate Theological Studies v. Postsecondary Education Quality Assessment Board, 2022 ONSC 1608, para. 51):Under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, the Divisional Court has jurisdiction to grant relief in relation to decisions, not recommendations. Thus, the recommendations of the Board are not reviewable. As applied to the circumstances of this case, the Divisional Court does not have jurisdiction to grant relief in respect to the OPP Report.
. Turner v Death Investigation Oversight Council
In Turner v Death Investigation Oversight Council (Div Court, 2023) the Divisional Court dismissed, with some irritation, a judicial review of a "reporting letter delivered by the Death Investigation Oversight Council" (DIOC) [under the Coroners Act] - that resulted from a formal complaint to it - as the role of the DIOC is advisory, not 'decisional' [SS: my term]:This judicial review
[45] The issue was not raised by either party but, to my mind, it is not clear that this matter is properly the subject of a judicial review. The Judicial Review Procedure Act section 2(1) states:2 (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:
1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
[Emphasis added] [46] In the context of an advisory body making recommendations, there is no decision which affects the rights of anyone. There is no decision that has not been made, that should be compelled (mandamus, which is only appropriate where there is no remaining discretion), no decision, the imposition of which, should be prohibited (prohibition) and no decision that could be quashed (certiorari). Recommendations may be implemented; they may not be.
[47] A “statutory power” as referred to in paragraph 2 is defined in section 1 of the Judicial Review Procedure Act as:“statutory power” means a power or right conferred by or under a statute,
(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,
(b) to exercise a statutory power of decision,
(c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,
(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party; (“compétence légale”) [48] It is at least arguable that following an investigation, where recommendations are made, they are not the subject of a statutory power, as defined and are not subject to judicial review. There are cases where issues of the process and procedure of coroners’ inquests have been challenged on judicial review. Maybe they could be applied here to demonstrate that the issues raised are properly subject to judicial review maybe they could not. As the issue was not raised, and given the circumstances, this court has no option but to complete its consideration of this as an application for judicial review. If there is an issue it will have to be reserved for another day.
[49] In any case, Dr. Jane Turner does not contest the recommendations that were made. Nonetheless, she wants the “reporting letter” set aside because of a recommendation that was not made: a recommendation to the Minister that Dr. Michael Pollanen be removed as the Chief Forensic Pathologist. In other words, Dr. Jane Turner wants this complaint dealt with as an inquiry into the conduct of Dr. Michael Pollanen. This would treat circumstances such as this as a discipline proceeding. If it is, it means that a complaint from any person against the Chief Coroner or, as in this case against the Chief Forensic Pathologist, could result in a full-blown inquiry where the individual complained about would be required to defend himself or herself. Again, this process is dedicated to improving investigations not bringing down its leaders.
....
Analysis
[51] What ought to be immediately apparent is that the supposed absence of reasonableness is not directed at the recommendations that are the core of the reporting letter but at Dr. Michael Pollanen and the failure to recommend to the Minister that he be removed from office. The issues put on behalf of Dr. Jane Turner are:1. Did the Death Investigation Oversight Council act unreasonably by failing to make any finding of fact in response to Dr. Jane Turner’s complaint against Dr. Michael Pollanen?[66]
2. Did the Death Investigation Oversight Council act unreasonably in failing to determine if Dr. Turner’s complaint was substantiated?[67]
3. Did the Death Investigation Oversight Committee act unreasonably by failing to take appropriate action to respond to a substantiated complaint against the Chief Forensic Pathologist beyond making recommendations?[68]
[Underlining added] [52] That the overarching concern is the failure to address the allegations that Dr. Michael Pollanen abused his authority is confirmed through a review of the orders being sought:1. an order setting aside the “decision” of the Death Investigation Oversight Council
2. an order remitting the complaint back to the Death Investigation Oversight Council for its reconsideration, but only after Dr. Jane Turner is allowed to file new evidence, and
3. an order directing the Death Investigation Oversight Council, once its reconsideration is complete, to refer to Dr. Pollanen’s superiors, the Deputy Solicitor-General and the Solicitor-General, any of the complaints which are more appropriately dealt with by them[69] [53] This position, adopted on behalf of Dr. Jane Turner, fails to grasp in a fundamental way the intent and means of the oversight provided under the Coroners Act.
[54] In reviewing the reasonableness of the “decision”, the starting point is the administrative context in which the “reporting letter” was prepared. As is well-known the oversight provisions found in the Coroners Act are the result of complaints against Dr. Charles Smith regarding his conduct in investigating cases, including strong biases in favour of child abuse as the cause of death as against other alternative explanations. The concerns raised were the catalyst for an inquiry (colloquially the “Goudge Inquiry”) and the resulting Report into Pediatric Forensic Pathology in Ontario.
[55] The report included recommendations to strengthen the oversight of pathologists including:. the appointment of a Chief Forensic Pathologist who is responsible for the Ontario Forensic Pathology Service and oversees all pathologists in Ontario,[70]
. the creation of a registry controlled by the Chief Forensic Pathologist to ensure only qualified individuals conduct autopsies,[71] and
. the establishment of a “governing council” to provide oversight of strategic planning and to administer a public complaints process.[72] [56] The Goudge inquiry recommended that the complaints process be remedial rather than punitive[73] and run concurrently with the complaints process of the College of Physicians and Surgeons.[74] The Goudge inquiry recommended that the Complaints Committee of the governing council or the deputy minister, where necessary, review complaints related to the Chief Forensic Pathologist.[75] Many of the recommendations made by the Goudge inquiry have been incorporated into the Coroners Act. These include the creation of the Death Investigation Oversight Council. It is tasked with overseeing “the Chief Corner and Chief Forensic Pathologist by making recommendations to them.[76]
[57] The complaints procedure found in the Coroners Act is decidedly different from and should not be equated to disciplinary tribunals that oversee many regulated professionals. It is this distinction that Dr. Jane Turner, and those who support her have failed to understand and account for. The submissions being made suggest that the Death Investigation Oversight Council is required to make detailed factual findings, render a conclusion on compliance or violation of specific rules and recommend consequences for the subject of the complaint. There is no provision within the Coroners Act or any accompanying regulation that requires the Death Investigation Oversight Council or its Complaints Committee or for that matter the Child Injury Investigation Committee to hold oral hearings, weigh evidence or assess the credibility of witnesses. It is those structures which allow for detailed findings and to provide the procedural safeguards that are necessary where a decision may have serious consequences for any individual.
[58] The complaints process was intended to serve a different purpose. The core function of the complaint process is to make recommendations to improve the carrying out of investigations into death and injuries. The Death Investigation Oversight Council is empowered to make recommendations (specifically to the Minister) as to “the appointment or dismissal of the Chief Forensic Pathologist”[77] but this is ancillary to the underlying concern for the efficacy of investigations and not central to the consideration of a complaint.
The failure to find facts
[59] The submissions made on behalf of Dr. Jane Turner propose that the Goudge Report, the amendments to the Coroners Act that respond to that report and the annual reports of the Death Investigation Oversight Council all demonstrate an obligation to “find facts”. Recommendation 61 of the Goudge inquiry report states that the complaints process should be “transparent, responsive and timely”.[78] As submitted on behalf of Dr. Jane Turner, s. 8.4(6) of the Coroners Act should be interpreted to give effect to that recommendation. That section directs that the complaints committee is to “review every complaint made about the Chief Coroner or the Chief Forensic Pathologist”.[79] Each of the Annual Reports of the Death Investigation Oversight Council from 2016 to 2019 indicates that “Upon completing their review, the Complaints Committee members will prepare a reporting letter, which details their findings.”[80] The problem with this is the same. It considers these sources as if they were functioning within a judicial or quasi judicial forum like a discipline proceeding under legislation regulating a profession rather than a review directed to making recommendations to improve the investigation of death and injuries. A complaints process can be transparent and responsive without requiring that specific facts be proved. To the contrary, advisory bodies don’t necessarily rely on facts; recommendations may result from concern or speculation as to what could happen, not on what has happened. A “review” as referred to in s. 8.4(6) does not require a hearing and consideration of credibility to determine what happened. It may canvas different perspectives and without choosing between them (accepting one in preference to another) provide guidance for the future. In referring to the word “findings” the submissions made on behalf of Dr. Jane Turner rely on the use of that word in the context of a legal proceeding. It refers to a succession of definitions, each one from a legal dictionary[81] and fails to account for the fact that the context in which the word is being used is different. The Annual Report of the Death Investigation Oversight Council for 2020 removed this requirement.
The failure to substantiate the complaint
[60] What follows from this is that there is no requirement that the Death Investigation Oversight Council or its Complaints Committee make findings that establish or reject the proposition that Dr. Michael Pollanen abused his position or authority. The issue is how his actions contributed to the investigation and whether there were recommendations as to how his involvement could better assist in providing a proper, efficacious and transparent process of investigation.
[61] The Factum filed on behalf of Dr. Jane Turner lists evidence that, it is submitted, was not accounted for by the Death Investigation Oversight Committee which is said to support her allegations (substantiate her complaint) that Dr. Michael Pollanen abused his authority and acted unprofessionally.[82] In each case, as the review contained in these reasons demonstrates, there is evidence on which a contrary or reasonable alternative determination could be made, as follows:a. Dr. Michael Pollanen concluded the cause of death was child abuse after reviewing the bone slides for only 20 minutes and without reviewing other available evidence.
There is evidence that he did not decide, following his review of the slides, that the cause of death was child abuse. His note to file indicated that in his view traumatic injury remained a consideration. That’s why the matter was referred to the Child Injury Investigation Committee. None of the many professionals involved provided evidence that 20 minutes was insufficient time to interpret the bone slides.
b. Dr. Michael Pollanen referred the death of the child to the Child Injury Investigation Committee even though it fell outside its jurisdiction.
The fact that Dr. Jane Turner, as the applicable “forensic pathologist” would not, in any event, be prepared to change her opinion, even when confronted with the different determination of others is not enough to remove the concern that child abuse was involved. Child abuse fell within the jurisdiction of the Child Injury Investigation Committee.
c. Dr. Michael Pollanen appointed his deputy as the chair of the Child Injury Investigation Committee when he lacked authority to do so.
There is evidence that the deputy was not appointed as the Chair for the purpose of carrying out the particular review. He was the Committee’s continuing Chair. There is nothing inherently wrong with the deputy of Dr. Michael Pollanen acting as the Chair for the purposes of this, or any other review.
d. Concerns with the work of the Child Injury Investigation Committee
. the members provided opinions even though they lacked expertise in bone pathology;
. the Committee agreed to get a second opinion but one was never obtained;
. the bone pathology was sent to the Victorian Institute of Forensic Medicine without consulting Dr. Jane Turner, (it has no bone pathologists on staff, they concluded that there were too many deficiencies such that the case was not reviewable and they did not disagree with Dr. Turner’s conclusion that child abuse was not the cause of death);
. the Committee concluded that child abuse was not excluded as the cause of death.
Consistent with s. 8.2(1) of the Coroners Act members of the committee were appointed by the Chair. A bone specialist was involved. The opinion being sought was a second opinion. There is no suggestion that anyone gave opinions outside their area of expertise. Efforts were made to locate a second bone specialist without success. The Victorian Institute of Forensic Medicine was engaged. Dr. Jane Turner was offered the opportunity to comment on its selection but declined to do so. The Victorian Institute of Forensic Medicine did not agree with Dr. Jane Turner. The report it delivered states that its people did not accept there was evidence of any underlying bone disease but also did not think there was sufficient evidence to conclude that the death was due to inflicted trauma. There was evidence on which the Child Injury Investigation Committee could reasonably determine not to rule out inflicted trauma and to refuse to accept the perspective of Dr. Jane Turner.
e. Dr. Michael Pollanen’s view of the cause of death
. he wrote his own report concluding that inflicted injury could not be ruled out and the cause of death was undetermined;
. he changed his position at the final case conference that the cause of death was child abuse.
The first report was consistent with the view of the Child Injury Investigation Committee and not consistent with an effort to override Dr. Jane Turner. There is nothing wrong with his having changing his mind but, in this case, it is without importance because it happened at a case conference held after the complaint of Dr. Jane Turner had been delivered. Did the Committee fail to understand that its authority to make recommendations to improve the death investigation system included recommending the dismissal of the Chief Forensic Pathologist of Ontario
[62] As has already been noted in these reasons, there is nothing to suggest that the Council or the Committee was unaware of the authority to make the recommendation, it just is not one that was made in these circumstances. Moreover, having reviewed the background to the complaint, there is nothing that would support such a recommendation, certainly nothing to suggest that the failure to do so was unreasonable. The issue of dismissal was not raised before the Committee. This judicial review does not take issue with the recommendations that were made or that the justification for them cannot be understood from a review of the history of this investigation. By way of example, there are recommendations that address the underlying allegations of abuse of authority. These include the recommendation for an independent, external operational review of the office and for the establishment of random external reviews of the casework of the Chief Forensic Pathologist. What the application seeks is a justification why a different recommendation was not made; that is a recommendation to the Minister that Dr. Michael Pollanen be dismissed. In a discipline matter, the reasonableness of a sanction that was imposed may be questioned. That is not the circumstance here. In this case, there is no need to demonstrate that the decision not to make the recommendation being sought was reasonable.
[63] The Coroners Act recognizes that there may be circumstances where there are others, including the College of Physicians and Surgeons of Ontario, better suited to deal with what has come to the Death Investigation Oversight Council as a complaint.[83] The Death Investigation Oversight Council was aware of the authority of the Complaints Committee to refer such a situation to others and that the allegations made against Dr. Michael Pollanen would be better dealt with in that way:With respect to the allegations of bullying and/or workplace harassment, while the Committee can make recommendations pertaining to supporting a healthy and collaborative workplace environment, such concerns need to be referred to the employer of the person(s) [Dr. Huyer and Dr. Pollanen] who is subject to the complaint. Pursuant to s. 8(4) of the [Coroners Act], we are of the opinion that the allegations of bullying and/or workplace harassment would be more appropriately dealt with by the Chiefs’ superiors.[84] Conclusion
[64] I return to where these reasons began. This judicial review was ill-considered and should never have been brought. It misunderstands the process provided under the legislation. The process is directed to advice, not discipline. The judicial review seeks to set aside the “decision” (the recommendations) in favour of attacking the actions and participation of Dr. Michael Pollanen. The application stands as an impediment to the acceptance of the advice provided, preferring instead, to air a personal grievance pointed at Dr. Michael Pollanen because the investigation failed to accept the analysis of Dr. Jane Turner as to the cause of death. In doing this, it impugned the participation of virtually every professional involved, regardless of their expertise and the substance of their contribution. There is no requirement to provide a justification or reasons for a recommendation not being made. There is no need to explain why there was no referral to the Minister recommending the dismissal of Dr. Michael Pollanen as the Chief Forensic Pathologist. As it is, the analysis of what took place makes clear that it was reasonable that such a recommendation was not made. There would be no point in re-evaluating this issue. Judicial review is a discretionary remedy. If it was required, I would exercise the court’s discretion and refuse to grant judicial review. Too much time has been taken and wasted by this unfortunate application.
[65] For the reasons reviewed the application is dismissed.
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