The Applicants were unsuccessful in seeking a judicial review of the Respondent Coroner’s decision to not allow cross-examination on a narrow issue that related solely to credibility

Administrative law – Coroner’s inquest – Police officers – Investigations – Right to cross-examine – Judicial review application – Premature – Witnesses – Privileged communications

Minty v. Lucas, [2014] O.J. No. 2579, 2014 ONSC 3169, Ontario Superior Court of Justice – Divisional Court, May 27, 2014, F.P. Kiteley, M.R. Dambrot and T.D. Ray JJ.

The Applicants, the Mintys, sought a judicial review of an interlocutory ruling made by the Coroner at the outset of a Coroner’s Inquest relating to the scope of the cross-examination that would be permitted of two police officers who were to be called as witnesses at the inquest into the shooting death of the Applicants’ developmentally disabled relative, Douglas Minty. The cross-examination related solely to credibility.

The Applicants brought an interlocutory motion seeking permission to cross-examine the two police officers regarding their conversations with their counsel prior to preparing their police notes relating to the shooting. The Applicants also brought a companion motion seeking a ruling that if such cross-examination was allowed, counsel representing the officers at the inquest should be disqualified for conflict of interest. The Applicants’ motions were accompanied by detailed written submissions, which included a request to make oral submissions.

The Coroner denied the Applicants’ request for an oral hearing of their motions, and ruled that the communications between the officers and their counsel could not be subject to cross-examination as those communications were the subject of solicitor-client privilege and that the crime and fraud exceptions did not apply. In light of this ruling, the Coroner deemed the motion to disqualify counsel for both the officers to be moot.

Before hearing the Applicants’ submissions, the Ontario Supreme Court asked counsel to address the issue of prematurity at the outset of the hearing. The Respondent, Coroner, argued that the Divisional Court should only intervene during the course of an administrative tribunal to permit challenges to interlocutory rulings in exceptional circumstances.

The Court considered the issue of prematurity and held that in the “absence of exceptional circumstances, it is preferable to allow administrative proceedings to run their full course before a tribunal and to consider the legal issues arising from the proceedings, including procedural matters, against the backdrop of a full record and a reasoned decision of the tribunal.” This position is rooted in the principle of deference to administrative tribunals and is done to avoid a piecemeal approach to judicial review of administrative actions. The Court held that exceptional circumstances generally arise where there has been or will be a “serious error in legal principle which produces an unfair inquest” or “a fundamental failing of justice.”

The Court then held that the application was premature given that the inquest had not been completed and that there was no risk that if the ruling was left to stand a fundamental failing of justice would result. The court also held that it could not be said a serious error in legal principle was made which, if left to stand, produced an unfair inquest. The Court further noted that the best time to evaluate whether or not an evidentiary ruling said to be made in error such as this one has occasioned an unfair inquest, or a fundamental failing of justice, is after the inquiry is completed, when there is a complete evidentiary record and the findings of the jury are known.

The Court dismissed the application for judicial review on a finding that the application was premature.

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