Administrative law – Coroner’s inquest – Judicial review – Administrative tribunals – Delay – Stay of proceedings – Hearings – Unreasonable delay – Test
Loblaws Supermarkets Ltd. v. Shand Inquest (Coroner of),  O.J. No. 619, Ontario Superior Court of Justice, February 16, 2004, Swinton J.
Patrick Shand Jr. died on September 14, 1999 while involved in an altercation with two employees of Loblaws. The altercation was precipitated by an act of shoplifting at a Loblaws store. On June 27, 2000, the Coroner notified counsel for Loblaws of the decision to conduct an inquest. The inquest was originally scheduled to begin October 7, 2002. The start date of the inquest was delayed on at least three occasions and did not commence until March 24, 2003. The inquest was scheduled to resume for a further four to five weeks commencing February 23, 2004. In January 2004, Loblaws decided to seek an Order of prohibition preventing the inquest on the grounds that the delay of 53 months since the death of Mr. Shand was inordinate.
The court reviewed the decision of the Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission),  2 S.C.R. 307 where the court held that delay alone will not be grounds to stay the proceedings of a tribunal as an abuse of process at common law. The court noted that the Supreme Court of Canada had set out two circumstances where a court may intervene because of delay:
(1) Where there has been a delay which impairs a party’s ability to make full answer and defence, so that his or her rights to a fair hearing have been prejudiced; and
(2) Where there has been an inordinate delay which would bring the administrative process into disrepute and so constitute an abuse of process.
The Supreme Court of Canada noted that few lengthy delays would meet the threshold. The decision of whether a delay was “inordinate” involved consideration of various factors including the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the Respondent contributed to the delay or waived the delay, and other circumstances of the case.
The court looked at the nature of a Coroner’s inquest and noted that it performed both an investigative function with respect to a particular death and a social and preventive function which focused on the public interest. The court also noted that there was no evidence that the delay in this case resulted in any prejudice to Loblaws’ ability to make its case. The court held that there was an important public interest in determining the cause and means of death of an individual and in trying to prevent further deaths in similar circumstances. As Loblaws had not satisfied the court that it would suffer a significant prejudice if the hearing proceeded, the delay could not be characterized as inordinate and, therefore, did not constitute an abuse of process. In the result, Loblaws’ application for an Order of prohibition was dismissed.
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