COURT OF APPEAL FOR ONTARIO

CITATION:
Meekis v. Ontario, 2021 ONCA 534

DATE: 20210726

DOCKET: C66971

Juriansz, van Rensburg and
    Sossin JJ.A.

BETWEEN

Fraser Meekis,
    Wawasaysca Keno, Richard Rae, Michael Linklater,

Tyson Wren an infant
    under the age of 18 years by his litigation guardian Fraser Meekis, Brayden
    Meekis an infant under the age of 18 years by his litigation guardian Fraser
    Meekis, Zachary Meekis an infant under the age of 18 years by his litigation
    guardian Fraser Meekis, and Makara Meekis an infant under the age of 18 years
    by her litigation guardian Fraser Meekis

Plaintiffs/Responding Parties

(Appellants)

and

Her Majesty the Queen in Right of Ontario, Wojciech Aniol,
    Investigating Coroner, Michael Wilson, Regional Supervising Coroner, Dirk
    Huyer,

Chief
    Coroner for Ontario

Defendants/Moving Parties

(Respondents)

Julian Falconer and Mary (Molly)
    Churchill, for the appellants

Sarah Valair, Hart Schwartz and Kisha
    Chatterjee, for the respondents

Heard: May 6, 2021 by video conference

On appeal from the order of Justice John
    S. Fregeau of the Superior Court of Justice, dated April 15, 2019, with reasons
    reported at 2019 ONSC 2370, 432 C.R.R. (2d) 133.

Sossin J.A.:

OVERVIEW

[1]

On May 7, 2014, Brody Meekis, a four-year-old
    boy from Sandy Lake First Nation, died of complications from strep throat. Following
    an allegedly flawed coronial investigation into Brodys death, the issue in
    this appeal is whether the family of Brody Meekis 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 Brodys 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 Brodys
    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. Aniols investigation and
    otherwise administering the
Coroners Act
in Sandy Lake First Nation at
    the time of Brodys 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 Brodys 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 OCCOs investigation into Brodys death.
    Their claim makes the following core allegations: (i) the nature of Dr. Aniols
    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. Aniols 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.

[10]

For reasons that follow, I would allow the
    appeal in part. In my view, the motion judge erred in striking the misfeasance
    in public office and
Charter

claims. Consequently, I would
    allow these elements of the appellants claim to proceed. However, I would dismiss
    the appeal in all other respects.

BACKGROUND

(1)

PROCEDURAL HISTORY

[11]

On May 6, 2016, the appellants provided Ontario
    with their notice of claim, pursuant to s. 7 of the
Proceedings Against the
    Crown Act
, R.S.O. 1990, c. P.27.

[12]

The appellants original statement of claim was
    issued in July 2016.

[13]

The appellants statement of claim was amended
    on July 26, 2018 (the amended statement of claim). The amended statement of
    claim is the pleading in issue on this appeal.

[14]

On September 28, 2018, the respondents brought a
    motion in the Superior Court of Justice seeking the following relief: (1) an
    order striking the amended statement of claim, without leave to amend, as
    disclosing no reasonable cause of action, pursuant to r. 21.01(1)(b); and (2) an
    order striking the amended statement of claim as an abuse of process, pursuant
    to r. 25.11(c).

[15]

The motion hearing proceeded on January 15, 2019
    in Thunder Bay.

(2)

THE MATERIAL FACTS AS PLEADED

[16]

I draw the facts below from the appellants amended
    statement of claim. They are assumed to be true for the purposes of the r. 21 motion,
    unless they are patently ridiculous or incapable of proof: see,
Hunt v.
    Carey Canada Inc.
, [1990] 2 S.C.R. 959, at p. 980;
Nash v. Ontario

(1995),

27 O.R. (3d) 1 (C.A.), at p. 6;
Darmar Farms Inc. v.
    Syngenta Canada Inc.
, 2019 ONCA 789, 148 O.R. (3d) 115, at para. 11, leave
    to appeal to S.C.C. refused, 38915 (December 10, 2020). However, as this court
    affirmed in
Darmar Farms
, at para. 11, bald conclusory statements of
    fact and allegations of legal conclusions unsupported by material facts are
    not assumed to be true.

(a)

The Death of Brody Meekis

[17]

Brody Meekis was born on July 16, 2009 in Sandy
    Lake First Nation. By 2014, Brody had begun attending junior kindergarten,
    where he enjoyed learning Oji-Cree.

[18]

On May 1, 2014, Brody began showing symptoms of
    a cold, including a cough and runny nose. When these symptoms persisted for
    three days, Brodys mother called the nursing station in Sandy Lake First
    Nation. She was advised that it was not necessary to bring Brody in for an
    examination because he did not have a fever.

[19]

On May 4, 2014, Brody complained of a sore
    throat and began exhibiting signs of fever. His mother called the nursing
    station that day, and once again on May 5, but was not given an appointment for
    Brody.

[20]

On May 6, 2014, Brodys condition deteriorated
    further. His mother decided to take him to the nursing station the following
    morning without an appointment.

[21]

On the morning of May 7, 2014, Brody was
    feverish, pale, and had difficulty breathing. His mother brought him to the
    nursing station at 9:00 a.m., where nurses examined him.

[22]

Brody died at approximately 12:00 p.m. on May 7,
    2014, of cardiac complications arising from Group A Streptococcal Infection, commonly
    known as strep throat. He was four years old.

(b)

The Relevant Provisions of the
Coroners Act

[23]

This appeal concerns the duties owed by OCCO coroners
    in the context of death investigations. Those duties are governed by the
Coroners
    Act
. Immediately below, I will set out or describe the provisions of the
    Act raised either implicitly or explicitly in the amended statement of claim.

The Chief Coroner and the Regional
    Supervising Coroner

[24]

Section 3(1) of the
Coroners Act
sets
    out the duties of the Chief Coroner for Ontario, which include (a)
    administering the Act and the regulations, and (b) supervising, directing, and
    controlling all coroners in Ontario in the performance of their duties.

[25]

Section 4(2) requires Regional Supervising
    Coroners to assist the Chief Coroner in the performance of their duties in the
    region.

Duty to give information

[26]

Brodys death was reported to the OCCO pursuant
    to s. 10(1)(e) of the
Coroners Act
. Section 10(1)(e) requires any person
    with reason to believe that a person died from an illness for which he or she
    was not medically treated to immediately notify a coroner of the facts and circumstances
    relating to the death.

Coroners investigation

[27]

Pursuant to s. 15(1) of the
Coroners Act
,
    a report under s. 10(1)(e) triggers the coroners duty to conduct such
    investigation as, in the opinion of the coroner, is necessary in the public
    interest to enable the coroner to: (a) determine who the deceased was, as well
    as how, where, when, and by what means they died; (b) determine whether or not an
    inquest is necessary; and (c) collect and analyze information about the death
    in order to prevent further deaths.

Where inquest unnecessary

[28]

If a coroner determines an inquest is
    unnecessary pursuant to s. 15(1)(b) of the Act
,
s. 18(1) requires the
    coroner to transmit to the Chief Coroner a signed statement setting forth
    briefly the results of the investigation, and shall also forthwith transmit to
    the division registrar a notice of the death in the form prescribed.

[29]

Pursuant to s. 18(7), all reported results of a coroners
    investigation in which an inquest has been deemed unnecessary, including the
    results of the autopsy, must be provided to the deceaseds immediate family
    members upon request.

What coroner shall consider and have regard
    to

[30]

Section 20 of the Act sets out three criteria which
    an investigating coroner must consider in determining whether an inquest is
    necessary:

When making a determination whether
    an inquest is necessary or unnecessary, the coroner shall have regard to
    whether the holding of an inquest would serve the public interest and, without
    restricting the generality of the foregoing, shall consider,

(a) whether the matters described
    in clauses 31 (1) (a) to (e) [who the deceased was, and how, when, where, and
    by what means they died] are known;

(b) the desirability of the
    public being fully informed of the circumstances of the death through an
    inquest; and

(c) the likelihood that the jury
    on an inquest might make useful recommendations directed to the avoidance of
    further deaths.

Request by relative for inquest

[31]

Section 26(1) addresses the right of family
    members of a deceased person to request reasons from the coroner where the
    coroner determines that an inquest is not necessary. Section 26(1) provides as
    follows:

Where the coroner determines that an
    inquest is unnecessary, the spouse, parent, child, brother, sister or personal
    representative of the deceased person may request the coroner in writing to
    hold an inquest, and the coroner shall give the person requesting the inquest
    an opportunity to state his or her reasons, either personally, by the persons
    agent or in writing, and the coroner shall advise the person in writing within
    sixty days of the receipt of the request of the coroners final decision and
    where the decision is to not hold an inquest shall deliver the reasons therefor
    in writing.

[32]

Section 26(2) provides that, where the final
    decision of the coroner is not to hold an inquest despite a request under s.
    26(1), the family member(s) of the deceased person who made the request may ask
    the Chief Coroner to review that decision. Pursuant to section 26(3), the
    decision of the Chief Coroner on review is final.

Good faith immunity clause

[33]

The final relevant provision is s. 53 of the
Coroners
    Act
, which provides coroners with limited protection from personal liability.
    I will refer to this provision throughout these reasons as the good faith
    immunity clause. Section 53 provides as follows:

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.

(c)

OCCO Guidelines for Death Investigation

[34]

On April 12, 2007, the OCCO issued the second
    edition of its Guidelines for Death Investigation (the OCCO Guidelines).
[1]

[35]

According to s. 1.4(2)(b)(iii) of the OCCO Guidelines,
    where a death occurs in a non-urban area and travel time to the death scene is
    greater than 60 minutes, an investigating coroner "should attend all
    death scenes where the deceased is a child less than 12 years of age.

[36]

If the investigating coroner is unable to attend
    a death scene, the OCCO Guidelines state that he or she should call the
    Regional Supervising Coroner and review the circumstances of death prior to the
    body being released from the scene.

[37]

In addition, s. 3 of the OCCO Guidelines deals
    with communication. In cases involving deaths of children under five, s. 3.1
    advises investigating coroners to notify the Regional Supervising Coroner as
    soon as possible. In all cases, the OCCO Guidelines recommends that
    investigating coroners contact the next-of-kin of the deceased as soon as
    possible after attending the scene, to introduce themselves, and to keep the
    family informed of developments in the investigation.

(d)

The Coronial Investigation into Brodys Death

[38]

Dr. Aniol was assigned to investigate Brodys
    death. Pursuant to s. 15(1) of the
Coroners Act
, Dr. Aniol was obliged
    to examine Brodys body, collect and analyze information regarding his death,
    and determine whether an inquest was necessary.

[39]

Dr. Aniol decided not to attend Sandy Lake First
    Nation after Brodys death. He conducted his investigation from Red Lake.

[40]

Brodys body was subsequently sent to a hospital
    in Kenora for autopsy. Dr. Aniol did not consult with Dr. Wilson, the Regional
    Supervising Coroner, prior to having Brodys body released from the death
    scene.

[41]

Dr. Aniol did not provide a reason for his
    non-attendance at the death scene. Nor did he discuss his non-attendance with Dr.
    Wilson or Dr. Huyer, the Chief Coroner for Ontario. Neither Dr. Wilson nor Dr.
    Huyer directed Dr. Aniol to attend in Sandy Lake First Nation.

[42]

Dr. Aniol did not take a detailed statement from
    any of the nurses who treated Brody before his death, nor did he fully or
    accurately collect or create documentation of the circumstances surrounding
    Brodys death. Rather, he directed police officers to attend Brodys home to
    gather evidence for the investigation.

[43]

Dr. Aniol determined that an inquest into
    Brodys death was not necessary.

[44]

Dr. Aniol did not keep the appellants informed
    regarding his investigation into Brodys death.

[45]

After reviewing Brodys case, the OCCOs Deaths
    Under Five Committee recommended that it be referred to the Patient Safety
    Review Committee to assess potential systemic issues with northern health care
    services. The respondent coroners did not refer Brodys case to the Patient
    Safety Review Committee.

THE DECISION BELOW

[46]

On the respondents motion to strike, the motion
    judge considered whether any of the following claims by the appellants
    disclosed a reasonable cause of action within the meaning of r. 21.01(1)(b):

1)

A claim of misfeasance in public office against Dr.
    Aniol (the investigating coroner) and Drs. Huyer and Wilson (the supervising
    coroners);

2)

A claim in negligent supervision against the supervising
    coroners;

3)

A claim that the appellants s. 15
Charter

rights were infringed, and that damages were warranted as a remedy under s.
    24(1) of the
Charter
;

4)

A claim against Ontario based on the
    underfunding of coronial services in the province; and

5)

A claim against Ontario based on the honour of
    the Crown.

The role of the Goudge Report and the OCCO
    Guidelines

[47]

In his reasons for decision, the motion judge
    dealt with several preliminary issues prior to his analysis of the pleadings. Of
    importance to this appeal, he found that two sources, the OCCO Guidelines and the
    Goudge Report, were incorporated by reference into the amended statement of claim.

[48]

The motion judge next dealt with the merits of
    the motion to strike. He struck each of the appellants claims in its entirety,
    without leave to amend. I will briefly summarize his analysis with respect to
    each claim.

Misfeasance in public office

[49]

The motion judge held that, read generously, the
    appellants claim against the respondent coroners for misfeasance in public office
    had no reasonable prospect of success. He found that none of the respondent
    coroners were under any legal requirement to carry out their duties in the
    manner alleged by the appellants. Therefore, the motion judge concluded it was
    plain and obvious that the impugned acts and omissions could not amount to deliberate
    unlawful conduct in the exercise of public functions, one of the two essential
    elements unique to the tort of misfeasance.

The good faith immunity clause

[50]

Next, the motion judge found that the good faith
    immunity clause in s. 53 of the
Coroners Act
was not displaced by the
    allegations in the appellants amended statement of claim. Specifically, he
    found that the facts pleaded by the appellants were insufficient to support a
    claim of bad faith, stating as follows, at paras. 75-76:

[T]he plaintiffs submit the following facts to
    support their claim:

1. Dr. Aniol made the deliberate decision
    not to travel to Sandy Lake First Nation for the purpose of his investigation
    following Brodys death;

2. Dr. Aniol deliberately failed to consult
    with Dr. Wilson prior to allowing Brodys body to be released for autopsy in
    Kenora;

3. Dr. Aniol made the deliberate decision
    not to collect detailed information from the medical staff at the Sandy Lake
    First Nation nursing station;

4. Dr. Aniol determined that an inquest was
    not required;

5. Dr. Aniol failed in his duty to
    communicate with Brodys family as to the investigation into Brodys death;

6. Dr. Aniol directed police officers to
    visit the Keno/Meekis family home to make observations regarding drugs and
    alcohol in the home following Brodys death;

7. When making the above noted decisions,
    Dr. Aniol unjustifiably discriminated against the Keno/Meekis family on the
    bases of race, ethnic origin, and on-reserve residency; and

8. Drs. Wilson and Huyer deliberately
    failed to direct Dr. Aniol to attend in Sandy Lake First Nation, failed to
    direct Dr. Aniol to communicate with Brodys family, and failed to ensure that
    Dr. Aniol obtained detailed information from the Sandy Lake First Nation
    nursing station staff.

As with the claim for misfeasance in public
    office, in my opinion, the facts pleaded simply cannot support the assertions
    set out in the amended statement of claim. All of the factual breaches that the
    plaintiffs assert as evidence of serious carelessness or recklessness fall
    within the discretionary decision making authority afforded to coroners under
    the Act. The Act provides an investigating coroner with the discretion to
    determine how best to conduct his or her investigation, pursuant to ss.
    16(1)-(2), as long as that coroner meets his or her statutory obligations under
    s. 15(1).

Negligent supervision

[51]

The motion judge reached a similar conclusion in
    relation to the claim for negligent supervision, holding that the amended
    statement of claim failed to plead facts which could establish a duty of care
    owed by the supervising coroners to the appellants.

[52]

According to the motion judge, the lack of
    direct contact between the respondent coroners and the appellants, as pleaded
    in the amended statement of claim, precluded the possibility that a private law
    duty of care arose between them. As such, the motion judge held the claim had
    no reasonable prospect of success.

The
Charter
claim and
Charter
damages

[53]

The motion judge also found that the appellants
Charter
claim under s. 15 had no reasonable prospect of success and
    struck it without leave to amend.

[54]

The motion judge characterized the appellants
    discrimination claim as asserting a right to particular procedural outcomes following
    a coronial investigation. According to the motion judge, as the
Coroners
    Act
does not legally entitle the appellants to any such outcome, the benefit
    they claimed was not provided by law and could not ground a claim under s.
    15(1) of the
Charter: Auton (Guardian ad litem of) v. British Columbia
    (Attorney General)
, 2004 SCC 78, [2004] 3 S.C.R. 657, at para. 3.
    Therefore, he concluded there was no distinction in the way coronial services
    were provided to the appellants, and that it was plain and obvious that the s.
    15

claim could not succeed.

[55]

Moreover, even if the motion judge had found
    that this claim met the r. 21.01(1)(b) threshold with respect to s. 15(1) of
    the
Charter
, he held that the facts as pleaded were insufficient to
    warrant
Charter
damages as a remedy under s. 24(1). Specifically, at
    para. 139, he found that judicial review would provide an alternative remedy
    sufficient to vindicate the appellants
Charter
claim as alleged:
Ernst
    v. Alberta Energy Regulator
, 2017 SCC 1, [2017] 1 S.C.R. 3. The motion
    judge concluded that this was not a case where I would grant
Charter
damages and struck the claim pursuant to s. 24(1), again without leave to
    amend.

Underfunding and the honour of the Crown

[56]

The motion judge further held that the
    appellants claims based on the honour of the Crown and the underfunding of
    coronial services were not independent causes of action, and struck each of them
    on this basis.

Damages

[57]

The motion judge next assessed the appellants
    claim in damages for compensable psychological injuries arising from the
    respondents conduct. He accepted that, assuming the facts as pleaded were
    true, the appellants tort damages were potentially compensable at law: at para.
    156. However, as he had already concluded that none of the appellants claims potentially
    giving rise to damages had a reasonable prospect of success, he held that the
    appellants claim for damages as relief also had to be struck.

Leave to amend

[58]

Finally, in support of the decision to deny the
    appellants leave to amend their pleadings, the motion judge explained as
    follows, at para. 163:

I have struck the plaintiffs claims because
    the pleadings fail to establish a sufficient factual basis to support any of
    the causes of action alleged. These are not minor deficiencies that further
    amendments can remedy. The underlying legal foundations of the claims proceed
    on an erroneous interpretation of the Coroners statutory obligations under
    the Act. Amendments, even with further factual submissions, cannot support
    the plaintiffs claims. To allow the plaintiffs leave to amend would be
    inconsistent with judicial economy and the integrity of the justice
    system.

ISSUES ON APPEAL

[59]

The appellants take no issue on this appeal with
    the motion judges order insofar as it strikes their claims based on the honour
    of the Crown and the underfunding of coronial services. I will therefore say no
    more about these issues.

[60]

The appellants grounds of appeal may be
    conveniently summarized and approached as follows:

1)

The motion judge erred by striking the claim in
    misfeasance in public office and finding that all pleaded conduct constituted
    lawful exercises of statutory discretion;

2)

The motion judge erred by striking the claim in
    negligent supervision and finding that the supervising coroners did not owe the
    appellants a duty of care; and

3)

The motion judge erred by striking the claim of
    unjustified breach of s. 15 of the
Charter

and the claim for
Charter

damages; and

4)

The motion judge erred by finding (a) that the
    facts pleaded could not overcome the good faith immunity clause, and (b) that an
    investigating coroner is not a servant or agent of the Crown.

[61]

I will deal with each of the grounds above in
    turn. Each engages the overarching issue of whether the motion judge properly
    applied the test on a motion to strike. Accordingly, I will begin by
    identifying the general principles of law applicable on an appeal arising from
    a pleadings motion under r. 21.01(1)(b).

THE GOVERNING TEST AND STANDARD OF REVIEW

[62]

On a motion to strike for failure to disclose a
    reasonable cause of action under r. 21.01(1)(b), the well-established test is
    whether the claim has no reasonable prospect of success:
Grand River Enterprises
    Six Nations Ltd. v. Attorney General (Canada)
,
2017 ONCA 526, at
    para. 15;
R. v. Imperial Tobacco Canada Ltd.
, 2011 SCC 42, [2011] 3
    S.C.R. 45, at para. 17;
Odhavji Estate v. Woodhouse
, 2003 SCC 69,
    [2003] 3 S.C.R. 263, at paras. 14-15.

[63]

In
Imperial Tobacco
, at para. 21, the
    Supreme Court emphasized that the judicial approach on motions to strike must
    be generous, erring on the side of allowing novel but arguable claims to
    proceed to trial, since actions that yesterday were deemed hopeless may
    tomorrow succeed.

[64]

On appeal from an order made under r.
    21.01(1)(b), the applicable standard of review is correctness:
Grand River
,
    at para. 18;
The Catalyst Capital Group Inc. v. Dundee Kilmer Developments
    Limited Partnership
, 2020 ONCA 272, 150 O.R. (3d) 449, at para. 37.

ANALYSIS

(1)

MISFEASANCE IN PUBLIC OFFICE

[65]

The amended statement of claim alleges that all
    the respondent coroners are liable for the tort of misfeasance in public
    office. The appellants submit that their pleadings disclose a reasonable cause
    of action for misfeasance and contend that the motion judge erred in striking
    this part of their claim, without leave to amend, on the basis that the pleaded
    acts and omissions amounted to the lawful exercise of statutory discretion
    under the
Coroners Act
.

[66]

Specifically, the appellants say they pleaded
    that the respondent coroners followed a pre-determined line of conduct on the
    basis that Brody was a First Nations child from a remote Indigenous community.
    In finding that the respondent coroners conduct was a lawful exercise of
    statutory discretion, the appellants argue the motion judge failed to consider
    their pleading that the respondent coroners actions were dictated by a
    discriminatory, unwritten blanket policy of non-attendance, non-communication,
    and otherwise inadequate coronial service delivery in communities like Sandy
    Lake First Nation.

[67]

According to the appellants, this discriminatory
    fettering amounts to an improper and unlawful exercise of discretion
    conducted with subjective knowledge, acquired through the Goudge Report, that
    such conduct was unlawful and would likely harm the appellants, all of whom are
    First Nations people living on-reserve. As such, the appellants say the claim
    for misfeasance in public office does not contain a radical defect and should
    not have been struck by the motion judge.

[68]

I would give effect to this submission and
    permit the appellants claim of misfeasance in public office to proceed to
    trial.

[69]

Before explaining my reasoning, it is helpful to
    summarize the relevant legal principles regarding the tort at issue.

(a)

The Governing Principles

[70]

In
Ontario (Attorney General) v. Clark
,
    2021 SCC 18
, 456 D.L.R. (4th) 361,
    at para. 22, a majority of the Supreme Court summarized the tort of misfeasance
    in public office in the following terms:

A successful misfeasance claim requires the plaintiff
    to establish that the public official engaged in deliberate and unlawful
    conduct in his or her capacity as a public official, and that the official was
    aware that the conduct was unlawful and likely to harm the plaintiff.
    [Citations omitted.]

[71]

This court described the purpose of the tort of
    misfeasance in public office in
Freeman-Maloy v. Marsden
(2006),
79 O.R. (3d) 401
    (C.A.), at para.
10
, leave to appeal refused, [2006] S.C.C.A. No. 201, as follows:

The tort of misfeasance in a public office is
    founded on the fundamental rule of law principle that those who hold public
    office and exercise public functions are subject to the law and must not abuse
    their powers to the detriment of the ordinary citizen. As Lord Steyn put it in
Three
    Rivers District Council v. Bank of England (No. 3)
, [2000] 2 W.L.R. 1220
    (U.K. H.L.), at 1230: The rationale of the tort is that in a legal system
    based on the rule of law executive or administrative power may be exercised
    only for the public good and not for ulterior and improper purposes. The
    underlying purpose of the tort of misfeasance in a public office is to protect
    each citizen's reasonable expectation that a public officer will not
    intentionally injure a member of the public through deliberate and unlawful
    conduct in the exercise of public functions:
Odhavji
at para. 30.

[72]

The past four decades have seen a revival in the
    application of the tort of misfeasance in public office, both in Canada and
    abroad. The wide-ranging situations in which plaintiffs have claimed
    misfeasance against various kinds of public officials illustrate that it is a
    tort of great flexibility and breadth: Erika Chamberlain and Stephen G.A.
    Pitel,
Fridmans The Law of Torts in Canada
(Toronto: Thomson Reuters,
    2020), at p. 1099.

The elements of misfeasance in public office

[73]

Iacobucci J. set out the elements of the tort of
    misfeasance in public office in
Odhavji
, at para.
32
. As summarized in
    Lewis N. Klar et al.,
Remedies in Tort
(Toronto: Thomson Reuters,
    2021), at §60, to succeed on a misfeasance claim, a plaintiff must show that:

1)

the defendant was a public official exercising
    public functions at the relevant time;

2)

the public official deliberately engaged in an
    unlawful act in their public capacity, which, as affirmed in
Clark
, at
    para. 23, is typically established by proving any of(a) an act in excess of the
    public officials powers, (b) an exercise of a power for an improper purpose,
    or (c) a breach of a statutory duty
(the unlawful act
    element)
;

3)

the public official was aware both that their
    conduct was unlawful and that it was likely to harm the plaintiff, which, as
    noted in
Clark
, at para. 23, may be established through actual
    knowledge, subjective recklessness, or conscious disregard for the lawfulness
    of the conduct and the consequences to the plaintiff (the knowledge element);

4)

the public officials tortious conduct was the
    legal cause of the plaintiffs injuries; and

5)

the injuries suffered are compensable in tort
    law.

[74]

The first three of these elements are unique to
    the tort of misfeasance in public office, while the other two are common to
    torts generally:
Foschia v. Conseil des Écoles Catholique de Langue
    Française du Centre-Est
, 2009 ONCA 499, 266 O.A.C. 17, at para. 22.

[75]

I do not take the respondents to be disputing
    that the coroners involved in the investigation into Brodys death were public
    officials exercising public functions at the relevant times. As such, I will
    focus my analysis below on the remaining four elements of the tort, and in
    particular the unlawful act and knowledge elements.

A narrow window of opportunity to succeed
    at trial is sufficient

[76]

While the material facts may lack detail in the
    early stages of a proceeding, at the pleadings stage it is generally enough for
    a plaintiff to establish a narrow window of opportunity to make out a
    misfeasance claim at trial:
Granite Power Corp. v. Ontario
,

72
    O.R. (3d) 194, at para. 40.

[77]

However, the tort requires more than a bald
    pleading that a public official acted for an improper purpose; there must be
    material facts about specific officials and their specific unlawful purpose in
    acting as they did:
Trillium Power Wind Corporation v. Ontario (National
    Resources)
, 2013 ONCA 683, 117 O.R. (3d) 721, at paras. 59-61.

Discriminatory conduct may satisfy the
    unlawful act element

[78]

In
Castrillo v. Workplace Safety and
    Insurance Board
, 2017 ONCA 121, 136 O.R. (3d) 654, at para. 45, Lauwers
    J.A. found that a misfeasance claim based on an alleged improper purpose in the
    exercise of a discretionary public spending power was adequate in strictly
    pleadings terms. He explained that this amounted to a specific application of
    the more general proposition that a statutory power must only be used for a
proper
    purpose
 [Emphasis added].

[79]

It is well-settled that exercising discretion
    based on discriminatory considerations constitutes an improper purpose:
Baker
    v. Canada (Minister of Citizenship and Immigration)
, [1999] 2 S.C.R. 817,
    at para. 53. There can be no doubt that a failure to act, if based on
    discriminatory considerations, is equally improper. Indeed, in his oft-cited
    judgment in
Roncarelli v. Duplessis
, [1959] S.C.R. 121, Rand J.
    affirmed that using ones public power to discriminate against a particular
    class of persons is knowingly foreign to the proper exercise of discretionary
    statutory decision-making.

[80]

In
Madadi v. Nichols
, 2021 BCCA 10, 455
    D.L.R. (4th) 471, the British Columbia Court of Appeal recently considered the
    adequacy of pleadings in support of a claim for misfeasance in public office
    where the plaintiff alleged that a disciplinary body penalized him for the
    improper purpose of discrimination. The court confirmed, at para. 72, that a
    misfeasance claim grounded in part on the pleading that a public body exercised
    its discretion based on discriminatory reasoning, coupled with pleas of
    knowledge that the conduct was unlawful, subjective awareness of the
    consequential harm to the respondent, and improper purpose was sufficient to
    establish a possible cause of action for misfeasance in public office.

Failures to act may be unlawful even where
    there is no positive duty to act

[81]

Additionally, this court has confirmed that
    omissions by public officials may be the source of a claim for misfeasance in
    public office. In
Grand River
, Epstein J.A. explicitly rejected the
    argument that an omission to act cannot be unlawful without a deliberate breach
    of an express statutory duty. Rather, Epstein J.A. held as follows, at para.
    81:

On my reading of
    the relevant paragraphs from
Odhavji
, there is no requirement for a
    breach of a statutory duty to make out a claim for misfeasance in public
    office. Conduct by a public officer may be unlawful even where there is no
    positive duty to act, provided that the conduct was done with the intent to
    harm.
Similarly, a refusal to exercise a power with a specific intent to
    injure might satisfy the test for misfeasance in public office
. Here, the
    respondents plead that the Ministers continuous course of conduct (including
    their failure to act)  was deliberate and unlawful in the exercise of their
    public functions: they knowingly acted for an improper purpose as described
    above and knowingly exceeded their authority. Thus,
I reject the Crowns
    argument that the misfeasance claim should have been struck because the
    respondents did not plead a failure to act in the face of a clear statutory
    duty
. [Emphasis added.]

The two categories of misfeasance in public
    office

[82]

In
Odhavji
, at paras. 22-23, Iacobucci
    J. discussed two ways in which the tort of misfeasance can arise: (a) through
    conduct that is specifically intended to injure a person or class of persons,
    sometimes called targeted malice (Category A); and (b) where a public
    official acts with knowledge both that she or he has no power to do the act
    complained of and that the act is likely to injure the plaintiff (Category
    B).

[83]

In
Foschia
, at para. 24, this court
    elaborated on the key distinction between Category A and Category B claims of
    misfeasance in public office:

While the
    constituent elements of the tort do not change depending on the Category of
    misfeasance alleged, the way those elements are proven does. If the plaintiff
    proves that the public official was acting for the improper purpose of
    deliberately causing harm to the plaintiff, this will be sufficient to prove
    both the [unlawful act] and [knowledge] elements of the tort. If, on the other
    hand, the plaintiff is alleging misfeasance in the form of Category B, then it
    is necessary to individually prove both the [unlawful act] and [knowledge] elements.
    In proving the [knowledge] element, it is sufficient for the plaintiff to show
    that the public official acted with reckless indifference to both the
    unlawfulness of his or her act and the likelihood that it would injure the
    plaintiff. [Citations omitted.]

(b)

Analysis

[84]

The motion judge found that the discretion
    afforded by the
Coroners Act
precluded the possibility that the
    appellants could show at trial that the conduct of the respondent coroners was
    unlawful for the purposes of the misfeasance analysis. Specifically, the motion
    judge concluded as follows, at paras. 60-61:

In my opinion, the facts pleaded simply cannot
    support the assertions set out in the amended statement of claim, namely that
    the Coroners engaged in deliberate unlawful conduct  in the exercise of
    public functions or that they deliberately breached [their] legal duties
    through [their] acts and/or omissions.

Given that the facts pleaded cannot possibly
    establish deliberate unlawful conduct in the exercise of public functions by
    the Coroners, one of two essential elements of the tort of misfeasance in
    public office, this claim has no reasonable prospect of success.

[85]

I would disagree. As I will explain, in my view
    the appellants claim discloses a reasonable prospect of success in
    establishing both (i) the unlawful act element, and (ii) the knowledge element
    of the tort of misfeasance in public office.

(i)

The unlawful act element

[86]

The appellants core misfeasance allegation on the
    unlawful act element is that the respondent coroners exercised their discretion
    to knowingly discriminate against a class of persons which included the
    appellants. In my view, this may be understood as an exercise of discretion for
    an improper purpose. Discretion must be exercised reasonably and, as indicated,
    it cannot be exercised based on discriminatory considerations. Rather, it
    should be structured by the relevant statutory factors under the applicable
    legislative scheme: see,
Ojeikere v. Ojeikere
, 2018 ONCA 372, 140 O.R.
    (3d) 561, at para. 63.

[87]

The motion judge characterized the appellants
    claim in the following terms:

The [respondent] Coroners particular actions
    and omissions, as alleged in the pleadings in support of the [appellants]
    misfeasance in public office claim, include the following:

1. That Dr. Aniol made the deliberate
    decision not to travel to Sandy Lake First Nation for the purpose of his
    investigation following Brodys death;

2. That Dr. Aniol deliberately failed to
    consult with Dr. Wilson prior to allowing Brodys body to be released for
    autopsy in Kenora;

3. That Dr. Aniol made the deliberate
    decision not to collect detailed information from the medical staff at the Sandy
    Lake First Nation nursing station;

4. That Dr. Aniol determined that an
    inquest was not required;

5. That Dr. Aniol failed in his duty to
    communicate with Brodys family as to the investigation into Brodys death; and

6. That Drs. Wilson and Huyer deliberately
    failed to direct Dr. Aniol to attend in Sandy Lake First Nation, failed to
    direct Dr. Aniol to communicate with Brodys family, and failed to ensure that
    Dr. Aniol obtained detailed information from the Sandy Lake First Nation
    nursing station staff.

[88]

As noted, the motion judge found that these
    allegations did not establish an unlawful act capable of leading to liability
    for misfeasance in public office.

[89]

The respondents argue that this finding was
    correct, since the
Coroners Act
affords coroners discretion in conducting
    death investigations. A coroner is authorized to attend the scene of a death,
    for example, but the Act does not
require
them to do so.

[90]

Similarly, the respondents say the motion judge
    properly concluded that the investigating coroners failure to follow the OCCO
    Guidelines, which merely
recommend
that coroners attend the scene when
    investigating child deaths, does not constitute unlawful conduct that could
    support a claim in misfeasance. The respondents emphasize that the OCCO
    Guidelines are permissive, not mandatory.

[91]

I do not accept these submissions. As I will
    explain, in my view, the motion judge failed to consider how the appellants
    pleaded facts and allegations as to discrimination could satisfy the unlawful
    act element of misfeasance.

The motion judge failed to consider
    discrimination as an improper purpose

[92]

In summarizing the appellants position on
    misfeasance, the motion judge appeared to consider the possibility that the
    unlawful conduct underlying their claim was the exercise of statutory discretion
    for an improper purpose. He acknowledged the appellants submission that the
    deliberate unlawful conduct pleaded includes discrimination, and that the
    allegations of discrimination included reliance on negative stereotypes about
    First Nations parenting and that the inadequate coronial investigation into
    Brodys death perpetuated historic disadvantages experienced by First Nations
    people living on-reserve: at para. 46.

[93]

However, the motion judge failed to advert to
    these pleadings or submissions in his subsequent analysis. In striking the
    appellants claim for misfeasance, he made no finding on or reference to the
    possibility that a discriminatory exercise of statutory discretion could
    satisfy the unlawful act element of the tort.

[94]

In my view, this oversight led the motion judge
    to erroneously conclude that the appellants had failed to plead facts
    supporting a viable claim of liability for misfeasance in public office.

[95]

At this juncture, it is important to recall that
    the question for the motion judge was not whether the appellants had
    established the elements of misfeasance on the merits. Rather, the motion judge
    was obliged to read the appellants misfeasance claim generously and determine
    whether it was plain and obvious that the claim would fail, assuming the facts
    alleged were true.

[96]

As I read it, the amended statement of claim is
    premised on the core allegation that the actions and omissions of the
    investigating coroner formed part of a pattern of discriminatory conduct on the
    part of the OCCO in relation to Indigenous communities like Sandy Lake First
    Nation. Among others, I would highlight paras. 32-33 from the amended statement
    of claim:

The plaintiffs plead that the Investigating
    Coroner failed to attend Sandy Lake in the context of a long-standing history
    of coroners failing to attend in First Nations communities to investigate
    childrens deaths. This pattern results in First Nations families being
    deprived of protections afforded to other Ontario families, thereby placing
    them at greater risk of harm, in violation of their
Charter
rights.

Dr. Aniol failed to perform a thorough
    investigation into the death of Brody Meekis. In addition to not attending on
    the death scene, Dr. Aniol deliberately did not do the following: (1) take a
    detailed statement from any of the nurses involved; and (2) fully or accurately
    collect or create documentation of the circumstances surrounding Brodys death.
    The Plaintiffs plead that the fact that Brody and the Keno/Meekis family are
    all First Nations living on-reserve in a remote First Nations community factored
    heavily into Dr. Aniols deliberate decisions, actions, and/or omissions. In so
    failing to perform his statutory and legal duties, Dr. Aniol knowingly
    aggravated the grieving process for the families and the community at large.
    [Emphasis added.]

[97]

Further, on a generous reading of para. 59(e) of
    the amended statement of claim, the appellants pleaded that the respondent
    coroners, like all coroners in this province, would have been aware of the
    findings and recommendations of the Goudge Report, which highlighted the
    harmful effects of inadequate coronial service delivery by the OCCO in remote
    First Nations communities.

[98]

Indeed, in volume 3, chapter 20 of the Goudge
    Report, entitled First Nations and Remote Communities, Commissioner Goudge
    described at length the evidence before the Inquiry indicating that coroners
    were routinely failing to attend death scenes in many remote communities,
    including, but not limited to, First Nations communities. At p. 553, the Goudge
    Report states as follows:

The status quo is not acceptable. Although it
    is recognized by everyone that investigating coroners may frequently be unable
    to attend death scenes in a timely way because of weather, distances, and
    travelling logistics, it does not follow that their non-attendance should be
    presumed or effectively be treated as the norm. The death investigation is
    enhanced by their attendance in ways that are not always fully compensated for
    by surrogates, technological substitutes, or telephone consultations. Dr.
    McLellan [former Chief Coroner for Ontario] expressed the opinion that there
    is no substitute for being at the scene oneself.

Equally important, the non-attendance of
    coroners represents a lost opportunity for them to speak directly with the
    affected families and to build relationships with communities. As conceded by
    Dr. Legge [former Regional Supervising Coroner for the North] and others, that
    discussion is simply not happening as it should. As a result, affected families
    are frequently uninformed about the cause of death  and communities are left
    with the perception that their deaths are less important than others to the
    system. That was certainly the message communicated to our Inquiry by First
    Nations leaders and those who work in those communities.

[99]

The amended statement of claim thus alleges a
    link between the respondent coroners actions in Brodys case and the
    well-documented pattern of neglect of on-reserve First Nations communities by
    the OCCO, supported by the Goudge Report. Read generously, the appellants pleaded
    that the respondent coroners knowingly perpetuated this pattern by deliberately
    conducting and supervising an inadequate coronial investigation into Brodys
    death, an investigation which ignored the findings and recommendations of the
    Goudge Report and failed to meet the OCCOs own Guidelines.

[100]

Put another way, the amended statement of claim alleges that the
    respondent coroners did not exercise their discretion reasonably and in
    accordance with the relevant factors under the Act. Rather, the claim is that
    the respondent coroners were motivated by discriminatory considerations which,
    as indicated, are knowingly foreign to the proper exercise of discretionary
    statutory decision-making. Although such a claim may arguably be novel and
    difficult to prove at trial, in my view, these concerns do not justify driving
    the appellants from the judgment seat at this early juncture.

[101]

Accordingly, I am persuaded that the facts and allegations contained
    in the amended statement of claim are sufficient to provide at least a narrow
    window of opportunity for the appellants to establish, on a full evidentiary
    record, that the respondent coroners acted and/or failed to act for the
    improper purpose of discriminating against them in the delivery of coronial
    services. If proven, such an improper purpose could satisfy the unlawful act
    element of misfeasance. In my view, the motion judges finding to the contrary
    was in error.

(ii)     The
    knowledge element

[102]

According to Iacobucci J. in
Odhavji
, at para. 25, the
    knowledge element may be satisfied by showing that the public official acted
    with recklessness or conscious disregard as to the unlawfulness of their
    conduct and the likelihood that it would injure the plaintiff.

[103]

The pleadings include a number
    of allegations that the respondent coroners either knew, were reckless to, or
    were careless of the potential that their conduct in Brodys case was both
    unlawful and likely to harm the appellants. For example, the amended statement
    of claim discloses as follows, at paras. 42, 45, and 57:

[T]he plaintiffs state that  Dr. Aniol acted with
    gross or serious carelessness regarding the safety of the Keno/Meekis family
    and other on-reserve members of the public, and regarding the right of the
    Keno/Meekis family and other on-reserve First Nations members to
    non-discrimination in the receipt of coronial services.

The plaintiffs state that  Dr. Aniol was aware or was
    reckless to the fact his conduct was unlawful and likely to injure the
    plaintiffs. The plaintiffs plead that the defendant is therefore liable to the
    plaintiffs for misfeasance in public office.

The plaintiffs state that Drs. Wilson and Huyer acted
    with gross or serious carelessness that is incompatible with good faith in
    their exercise of public power under the
Coroners
    Act
. In particular
     Drs. Wilson and Huyer acted with gross or serious carelessness regarding the
    safety of the Keno/Meekis family and other on-reserve members of the public,
    and regarding the right of the Keno/Meekis family and other on-reserve First
    Nations members to non-discrimination in the receipt of coronial services.

[104]

I do not agree with the
    respondents submission that the appellants failed to plead circumstances from
    which knowledge of unlawful conduct could be inferred. As noted, the amended
    statement of claim contains material facts, including the findings and
    recommendations of the Goudge Report, which in my view are sufficient at this
    preliminary stage to support the above allegations of recklessness or
    carelessness. As Lauwers J.A. stated in
Trillium Power
, at para. 60, the pleadings in
    this case are detailed and as fact-specific as the appellant[s] can be at this
    stage of the proceeding, and the allegations link to actual events, documents,
    and people. The appellants cannot provide more particulars now because many of
    the necessary supporting facts would be within the respondents knowledge and
    control, and there has been no document production or discovery:
Trillium Power
, at para. 61.

Conclusion on the unlawful act and knowledge
    elements

[105]

In sum,
in my view there exists at least a narrow window of opportunity for
    the appellants to establish that the respondent coroners engaged in deliberate
    and unlawful conduct, and that they were aware of, reckless to, or consciously
    disregarded the possibility that their conduct was unlawful and likely to harm
    the appellants.

[106]

I would therefore find that the motion judge erred in striking the
    claim for misfeasance in public office without leave to amend.

The
    remaining elements: causation and compensability

[107]

Beyond establishing the unlawful act and knowledge elements, the
    appellants must also ultimately show that the unlawful conduct caused their
    harm and that such harm is compensable in law, as is the case with all other
    torts.

[108]

Even if the pleadings were sufficient to support the unlawful act
    and knowledge elements of misfeasance, the respondents argue that the impugned
    conduct at issue here could not lead to compensable harm. In advancing this
    submission, they rely on
Wellington v. Ontario
,
2011 ONCA 274,
    105 O.R. (3d) 81, at para. 31, leave to appeal refused, [2011] S.C.C.A. No. 258.
    In
Wellington
, this court upheld a finding that a claim for grief and
    mental distress damages arising from an allegedly inadequate police
    investigation was not compensable and had no reasonable prospect of success.

[109]

I would not accept this submission. In my view, the analogy to
Wellington
is inapt.
Wellington
did not involve a claim for misfeasance. It
    focused instead on an allegation of negligence arising from an investigation by
    a police Special Investigations Unit. I do not view this passage from
Wellington
as in any way precluding the existence of compensable damages in a claim for
    misfeasance in the circumstances of the case before us.

[110]

More broadly, the nature of the compensable damages, if any, which
    may flow from a death investigation allegedly conducted inadequately for an
    improper purpose is a question which should not be addressed on a pleadings
    motion. Rather, compensability, as well as causation, should be determined on a
    factual record capable of capturing the full scope of the alleged harm and its
    attendant impact, if any, on the appellants.

Conclusion on the claim for misfeasance in
    public office

[111]

For the foregoing reasons, I do not agree that it is plain and
    obvious that the claim in misfeasance has no reasonable prospect of success. In
    my view, the motion judge erred in finding to the contrary.

[112]

Accordingly, I would permit this part of the claim to proceed.

(2)

NEGLIGENT SUPERVISION

[113]

The amended statement of claim alleges that the supervising coroners
    negligently supervised the coronial investigation into Brodys death. Of
    importance, the appellants do not raise a claim in negligence against the
    investigating coroner himself.

[114]

In striking this part of their claim, the appellants argue the
    motion judge erred in finding it was plain and obvious that there could be no
    duty of care owed by any of the respondent coroners to the appellants. The
    appellants submit that, if the motion judge had correctly applied the governing
    law, he would have found they had a reasonable prospect of establishing a duty
    of care sufficient to ground a claim in negligent supervision against the
    supervising coroners for failing to require the investigating coroner to attend
    the scene, communicate with the appellants, and conduct a thorough
    investigation with an eye to systemic causes underlying Brodys death.

[115]

I would not accept this submission. As I will explain, I am not
    persuaded that the motion judge erred in his application of the requisite tests
    to the appellants claim in negligent supervision as pleaded.

(a)

The
Anns/Cooper
Analysis

[116]

To succeed in a claim in negligent supervision at trial, the
    appellants would need to establish that the supervising coroners owed them a
    private duty of care that is not negated by statute. The appellants acknowledge
    that such a duty of care would be novel, as it has yet to be recognized at
    common law.

[117]

Therefore, as the motion judge correctly acknowledged, to determine
    if such a novel duty of care could be found to exist, he was required to apply
    the
Anns/Cooper
test arising from
Cooper v. Hobart
, 2001 SCC
    79, [2001] 3 S.C.R. 537, at para. 39.

[118]

The
Anns/Cooper
test is applied in two stages. At the first
    stage, the inquiry focuses on the relationship between the parties and asks
    whether the facts disclose a relationship of proximity in which failure to take
    reasonable care might foreseeably cause loss or harm to the plaintiff. If
    proximity and reasonable foreseeability are established, then a
prima facie
duty of care arises:
Cooper
, at para. 22;
Deloitte & Touche v.
    Livent Inc. (Receiver of)
, 2017 SCC 63, [2017] 2 S.C.R. 855, at para. 23.

[119]

At the second stage, the focus is on factors outside the
    relationship between the parties, and the inquiry focuses on whether there are
    policy reasons why the potential
prima facie
duty of care should not
    be recognized:
Cooper
, at para. 30;
Livent
, at para. 37.

(b)

Application of the
Anns/Cooper
Test

Proximity and reasonable foreseeability

[120]

The appellants, Brodys immediate family members, submit that the
    facts as pleaded disclose a relationship of sufficient proximity between them
    and the respondents, such that it was reasonably foreseeable that the supervising
    coroners acts and omissions would cause them harm.

[121]

More specifically, the appellants contend it was reasonably
    foreseeable that the OCCOs failure to communicate with the appellants would
    compound the trauma they experienced as a result of Brodys death, and that the
    investigating coroners failure to attend the scene would compromise the
    efficacy of the death investigation and cause emotional and psychological harm
    to the family by suggesting their child is less worthy than others. As a
    result, the appellants argue that it is not plain and obvious that a
prima
    facie
duty of care did not arise.

[122]

The respondents disagree. They urge that the requisite proximity
    between supervising coroners and family members, such as the appellants, is
    missing in this context. According to the respondents, it is not the role of
    coroners to conduct death investigations or inquests to advance or respond to
    the private interests of the family members of the deceased.

[123]

I would accept the respondents submission regarding the first stage
    of the
Anns/Cooper

test.

[124]

To be clear, in my view it is possible that a relationship of
    proximity may arise based on a statutory scheme. However, in this case, the
Coroners
    Act
imposes a duty on coroners to provide family members of the deceased
    with the results of the death investigation only
if requested
, pursuant to
    s. 18(7), and a right of family members to require reasons for a decision not
    to order an inquest, a decision they may urge the Chief Coroner to reconsider,
    pursuant to s. 26. The statutory provisions at issue in this case establish
    public duties,  but do not, on their own, establish a relationship between the
    respondents and the family members of a deceased which might reasonably be
    found to form the basis of a private duty of care.

[125]

Therefore, absent allegations of actual contact between the
    supervising coroners and family members, in my view the motion judge was
    correct to find it plain and obvious that the threshold for proximity could not
    be met in this case.

Residual public policy considerations

[126]

Given my conclusion with respect to the motion judges analysis on
    the first stage of
Anns/Cooper
, it is not necessary to consider
    whether any
prima facie
duty would be negated for policy reasons.

(c)

Conclusion on Negligent Supervision

[127]

With respect to the respondents motion to strike the negligent
    supervision claim, the motion judge concluded as follows, at para. 102:

Without foreclosing the possibility that close
    and direct contact between an investigating coroner and a deceased persons
    family during an investigation could give rise to a duty of care if the coroner
    was seriously careless or reckless, the facts in this case as pled cannot
    support the conclusion that the Coroners owed the [appellants] a duty of care.

[128]

Based on the foregoing, I see no reversible error in this
    conclusion.

(3)

SECTION 15 OF THE
CHARTER
AND
CHARTER
DAMAGES

[129]

The amended statement of claim seeks damages under s. 24(1) of the
Charter
on the basis that the respondents subjected the appellants to discrimination
    on the basis of race, national or ethnic origin, and/or on-reserve residency,
    contrary to s. 15 of the
Charter
.

[130]

The appellants submit that the motion judge erred by striking both
    the s. 15
Charter

claim and the claim for
Charter

damages
    under s. 24(1). According to the appellants, the pleaded unwritten blanket
    policy of coronial non-attendance on child death scenes in remote First
    Nations communities is sufficient, if proven, to establish adverse differential
    treatment under s. 15(1). The appellants contend that differential treatment at
    the administrative level can ground a successful s. 15 claim where, as
    alleged here, the impugned treatment perpetuates pre-existing disadvantage. The
    appellants further submit that the motion judge incorrectly assessed whether
    they had established a distinction on the merits, instead of assessing whether
    their pleadings contained the requisite factual allegations of distinction.

[131]

With respect to s. 24(1), the appellants argue that the motion judge
    erred in finding that their claim for
Charter
damages had no
    reasonable prospect of success on the basis that judicial review is available under
    the
Coroners Act
,

thereby providing an alternative remedy to
    damages sufficient to vindicate their
Charter
rights. The appellants
    point out that compensation for mental distress damages is unavailable as a
    remedy on judicial review.

[132]

I would accept these submissions and permit the
Charter
claim to proceed. I propose to deal with the s. 15 and the s. 24(1) issues in
    turn.

(a)

The s. 15
Charter
Claim

The governing principles

[133]

Section 15(1) of the
Charter
states as follows:

Every individual is equal before and under the
    law and has the right to the equal protection and equal benefit of the law
    without discrimination and, in particular, without discrimination based on
    race, national or ethnic origin, colour, religion, sex, age or mental or
    physical disability.

[134]

Abella J., writing for a majority of the Supreme Court of Canada in
Fraser
    v. Canada (Attorney General)
, 2020 SCC 28, 450 D.L.R. (4th) 1, summarized the
    proper s. 15 analysis as follows, at para. 27:

Section 15(1) reflects a profound commitment
    to promote equality and prevent discrimination against disadvantaged groups. To
    prove a
prima facie
violation of s. 15(1), a claimant must demonstrate
    that the impugned law or state action:

·

on its face or in its impact, creates a distinction
    based on enumerated or analogous grounds; and

·

imposes burdens or denies a benefit in a manner
    that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.
    [Citations omitted.]

[135]

In

Fraser
, the claimants were retired female members
    of the RCMP who had temporarily participated in job sharing in order to work
    reduced hours while raising their children. Their participation in this scheme
    resulted in reduced pension contributions, which they were not entitled to
    offset, and, consequently, reduced retirement income. The majority found that the
    impugned scheme was a form of adverse impact discrimination, which violated
    s. 15(1) of the
Charter

and could not be saved under s. 1.

[136]

Abella J. explained the concept of adverse impact discrimination in
    the following terms, at paras. 30 and 52-53:

Adverse impact discrimination occurs when a
    seemingly neutral law has a disproportionate impact on members of groups
    protected on the basis of an enumerated or analogous ground. Instead of
    explicitly singling out those who are in the protected groups for differential
    treatment, the law indirectly places them at a disadvantage.

In order for a law to create a distinction
    based on prohibited grounds through its effects, it must have a
    disproportionate impact on members of a protected group. If so, the first stage
    of the s. 15 test will be met.

How does this work in practice? Instead of
    asking whether a law explicitly targets a protected group for differential
    treatment, a court must explore whether it does so indirectly through its
    impact on members of that group  A law, for example, may include seemingly
    neutral rules, restrictions or criteria that operate in practice as built‑in
    headwinds for members of protected groups

To assess the adverse
    impact of these policies, courts looked beyond the facially neutral criteria on
    which they were based, and examined whether they had the effect of placing
    members of protected groups at a disadvantage. [Citations omitted].

[137]

Although recently elaborated upon in
Fraser
, the concept of
    adverse impact discrimination is not new to s. 15 jurisprudence. For instance,
    in
Eldridge v. British Columbia (Attorney General)
, [1997] 3 S.C.R.
    624, at para. 77, La Forest J., for a unanimous court, asserted as follows:

This Court has consistently held  that
    discrimination can arise both from the adverse effects of rules of general
    application as well as from express distinctions flowing from the distribution
    of benefits  [Section 15] makes no distinction between laws that impose
    unequal burdens and those that deny equal benefits. If we accept the concept of
    adverse effect discrimination, it seems inevitable, at least at the s. 15(1) stage
    of analysis, that the government will be required to take special measures to
    ensure that disadvantaged groups are able to benefit equally from government
    services.

Analysis of the appellants s. 15 claim

[138]

The motion judge characterized the appellants
Charter
claim in the following terms:

The plaintiffs do not challenge the provisions
    of the Act. They challenge the Coroners conduct in administering coronial
    services pursuant to their statutory authority under the Act. The enumerated
    and analogous grounds at issue are race and on-reserve residency.

The plaintiffs claim they have a right to
    coronial services that are comparable to those provided to other off-reserve
    members of the public. The plaintiffs assert that, because Dr. Aniol did not
    attend the scene, did not communicate with the deceaseds family, and did not
    properly investigate the nursing station staff, this equates to a distinction
    in law under s. 15.

[139]

In my view, the appellants claim is one of adverse impact discrimination,
    as defined in
Fraser
,
albeit where the impugned law is alleged
    to have a discriminatory effect in its application, as in
Little Sisters
    Book and Art Emporium v. Canada (Minister of Justice)
, 2000 SCC 69, [2000]
    2 S.C.R. 1120.

While the motion judge did not have the benefit of
Fraser
s
    helpful discussion of adverse impact discrimination, as noted, the concept is
    not new.

[140]

As I will explain, in my view the motion judge erred in his s. 15
    analysis in three interrelated ways: (i) failing to find that the appellants had
    adequately pleaded a distinction premised on adverse impact discrimination at
    the first stage of the s. 15(1) test; (ii) misapplying
Auton
to strike
    the s. 15 claim on the basis that the appellants had not sought any benefit provided
    by law under the
Coroners Act
; and (iii) concluding the appellants had
    not pleaded sufficient particulars to ground a s. 15 claim disclosing a
    reasonable prospect of success.

[141]

I shall address each of these matters in turn.

(i)

Does
the claim allege a
    distinction based on a prohibited ground?

[142]

In this case, whether or not the respondents intentionally drew a
    discriminatory distinction against Indigenous communities like Sandy Lake First
    Nation in the exercise of statutory discretion in on-reserve death
    investigations, the amended statement of claim pleaded that the respondents
    conduct had this effect.

[143]

Nevertheless, the motion judge found that the appellants claim
    disclosed no distinction in the way the Coroners provided coronial services
    to the appellants.

[144]

I do not agree. As affirmed in
Fraser
,
at the first step
    of the s. 15(1) test in an adverse impact discrimination claim, the motion
    judge was required to look beyond the facially neutral rules of the
Coroners
    Act

to examine whether those rules were pleaded to have been
    applied by the respondent coroners in a manner which effectively disadvantaged members
    of a protected group, such as the appellants.

[145]

As acknowledged by the motion judge, the amended statement of claim alleges
    that by failing to conduct a thorough in-person investigation into Brodys death,
    the investigating coroner did not provide the appellants with coronial services
    of a comparable quality and level to those provided to off-reserve residents of
    Ontario. In other words, the appellants allege that because they are First
    Nations people living on a reserve, and therefore members of a group protected
    by s. 15, they received differential treatment. Indeed, at para. 46(j), the
    amended statement of claim alleges that the investigating coroners conduct
    unjustifiably discriminated against the appellants on the basis of race,
    ethnic origin, and on-reserve residency.

[146]

Again, it must be recalled that the appellants were not required to
prove
a distinction at this stage. In my view, the amended statement of claim, which
    incorporates the Goudge Report and the OCCO Guidelines by reference, contains
    sufficient material facts to support the allegation of a distinction based on a
    prohibited ground.

[147]

Accordingly, I would conclude that the amended statement of claim discloses
    a reasonable possibility that the appellants could succeed in satisfying the
    first step of the s. 15(1) test with the benefit of a full evidentiary record,
    and that the motion judge erred in finding to the contrary.

(ii)

Does
Auton

foreclose the
    appellants s. 15 claim?

[148]

The respondents urge that the motion judge was correct to conclude that
    the appellants s. 15 claim is foreclosed based on the principles articulated
    by the Supreme Court of Canada in
Auton
.

[149]

In
Auton
, based on a full evidentiary record, McLachlin
    C.J.C. dismissed a s. 15 claim on the basis that the benefit sought  funding
    for a specific type of autism therapy  was not provided by law.

[150]

In the motion judges s. 15(1) analysis, he made the link to
Auton

as follows:

[The s. 15(1)] analysis is predicated on the
    claimant showing that they have a right to the benefit they claim to have been
    denied:
Auton
, at para. 3.

As previously noted, the Act does not require
    the investigating coroner to attend the scene, communicate with the deceaseds
    family, or interview particular individuals as part of his or her
    investigation. Properly characterized, the plaintiffs claim that they have a
    right to comparable coronial services, which
must
include these
    particular procedural outcomes as part of the investigation.

Based on a plain reading of the Act, the
    plaintiffs have no legal right to a particular outcome when a coroner makes a
    discretionary, procedural decision over the course of the coronial
    investigation. The procedural decisions involved in an investigation, including
    the decision to inspect the place in which the deceased person was prior to his
    or her death, are discretionary pursuant to ss. 16(1) and (2), and therefore,
    the plaintiffs cannot found a s. 15 claim on being denied a benefit to which
    they are not legally entitled. A deceased persons family members do not have a
    legal right to the specific process of a coronial investigation.

As in
Auton
, the [appellants]
    discrimination claim is based on the erroneous assumption that the Act provides
    the benefit claimed: at para. 3. It does not. The lack of a benefit equally
    distributed cannot ground a claim under s. 15(1). Put another way,
    "[t]here can be no administrative duty to distribute non-existent benefits
    equally":
Auton
, at para. 46.

[151]

In my view, the motion judges analogy to
Auton

was in
    error for two reasons.

[152]

First, while the motion judge correctly identified the principle
    arising from
Auton
,
in my view he mischaracterized the nature
    of the appellants claim. On a properly generous reading of the amended
    statement of claim, the benefit sought is not a particular outcome in the
    discretionary coronial investigation into Brodys death. Indeed, I share the
    motion judges view that the
Coroners Act
does not provide a statutory
    right to in-person coronial attendance, an inquest, nor to any other particular
    procedural outcome.

[153]

With respect, however, this misses the point. As I read the claim,
    the appellants core allegation under s. 15(1) is that the way coronial
    services are provided in Ontario arbitrarily and disproportionately exclude
    on-reserve Indigenous communities, thereby undercutting the purpose of the
Coroners
    Act
. Indeed, para. 72 of the amended statement of claim pleads as follows:

The Coroners failure to conduct a thorough
    investigation perpetuates disadvantages faced by First Nations on reserve,
    including but not limited to systemic disadvantages resulting from inadequate
    health care services. It compounds a history of disadvantage and discrimination
    in which the lives of Indigenous children were treated as less deserving of
    concern and attention than the lives of non-Indigenous children, and in which
    Indigenous families were not informed of the deaths of their children and/or
    the circumstances surrounding the deaths of their children and/or systemic
    causes contributing to their deaths.

[154]

If the investigating coroners conduct in Brodys case is proved to
    be part of a blanket policy of coronial non-attendance in places like Sandy
    Lake First Nation, this would amount to an effective denial of the benefit of
    coronial services available elsewhere in the province. It is not plain and
    obvious that such a denial could not be shown to exacerbate the pre-existing
    disadvantage experienced by Indigenous peoples living on-reserve. Put another
    way, requiring on-reserve Indigenous peoples to live without adequate coronial
    services could arguably amount to a burden imposed on individuals of a
    historically disadvantaged group, a burden which is not imposed on non-members
    of that group. In my view, if established, this would be sufficient to satisfy
    the second step of the s. 15(1) test.

[155]

Relatedly, the motion judge failed to consider principles applicable
    to s. 15 which, in my respectful view, indicate that
Auton

is
    not a bar to the appellants claim. I will provide two examples.

[156]

The first relevant principle arises from the Supreme Court of
    Canadas decision in
Eldridge
. In
Auton
, at para. 35, the
    court explained that the benefit sought in the case at bar was not provided
    for by the law because the legislative scheme at issue did not promise funding
    for non-core services, like behavioural therapy for autistic children, to all
    Canadians. To illustrate this point, the court distinguished
Eldridge
as follows, at paras. 38 and 45:

Eldridge
was concerned with unequal access to a benefit that the law
    conferred and with applying a benefit-granting law in a non-discriminatory
    fashion
. By contrast, this case is concerned with access
    to a benefit that the law has not conferred.

Had the situation been different,
the
    petitioners might have attempted to frame their legal action as a claim to the
    benefit of equal application of the law
This would not have been a
    substantive claim for funding for particular medical services, but
a
    procedural claim anchored in the assertion that benefits provided by the law
    were not distributed in an equal fashion. Such a claim, if made out, would be
    supported by
Eldridge
.
[Emphasis added.]

[157]

The foregoing passage from
Auton
supports my view that the
    motion judges analogy to
Auton

was inapt. Unlike in
Auton
,
    the appellants do not seek special services not available to the general
    public. To the contrary, their claim is anchored in the assertion that the
    benefits of coronial services provided under the
Coroners Act

are
    not being distributed in an equal fashion. As such, read generously, the
    appellants have framed their action as a claim to the benefit of equal
    application to the law, as in
Eldridge
.

[158]

Contrary to the motion judges assertion, the amended statement of claim,
    as I read it, does not seek to impose a non-existent benefit equally. For
    example, as I have explained, on a full trial record the appellants could prove
    their allegation, supported by the Goudge Report, that the OCCO had a blanket
    policy of coronial non-attendance in remote First Nations communities. This potentially
    could amount to an effective denial of the benefit of coronial services
    delivered based on the proper exercise of statutory discretion under the
Coroners
    Act
, a benefit available to non-Indigenous Ontarians living off-reserve.

[159]

Moreover, C.J. Brown J.s decision in
Mathur v. Ontario
,
    2020 ONSC 6918, leave to appeal refused, 2021 ONSC 1624 (Div. Ct.) reinforces
    my conclusion that the motion judge misapplied
Auton

in
    striking the appellants claim. While the motion judge did not have the benefit
    of
Mathur
, in my view he failed to consider and apply the established principles
    articulated therein, which led him to erroneously strike the appellants s. 15
    claim.

[160]

In
Mathur
, C.J. Brown J. relied on
Eldridge

in
    dismissing Ontarios motion to strike an s. 15(1) claim based on adverse impact
    discrimination. That claim alleged that Ontarios target for reducing
    greenhouse gas emissions by 2030 violated s. 15 based on age. C.J. Brown J. was
    unable to conclude that the claim had no prospect of success. In support of
    that finding, she made two key points relevant to this appeal, at paras.
    187-88:

First, it is acknowledged that
evidentiary
    challenges for claimants may be more apparent in claims of "adverse
    effect" or "adverse impact" discrimination
. To date, few
    decisions of the Supreme Court have dealt with adverse effect discrimination,
    perhaps because of the significant practical difficulties involved in adducing
    sufficient evidence to demonstrate adverse impacts on particular groups.
However,
    where adverse impact claims have succeeded under the
Charter
, they have
    been based on self-evident societal patterns amenable to judicial notice, such
    as the disadvantage faced by deaf persons seeking to access medical services
    without the aid of sign language interpretation: see
Eldridge
. The
    adverse effects of climate change on younger generations - who presumably would
    have more years to live than current generations - may be considered
    self-evident, especially if the Applicants are able to present evidence of
    historical or sociological disadvantage that the Applicants have experienced as
    a result of their age.

Second,
it is not apparent that the
    Applicants cannot prove that Ontario's conduct widens the gap between the
    disadvantaged group  and the rest of society  rather than narrowing it
particularly in light of the [Supreme Court of Canadas] shift to substantive,
    rather than formal, equality analysis. [Emphasis added.]

[161]

Similar considerations operate here. Namely, as in
Eldridge

and other s. 15 cases discussed in
Mathur
, the appellants claim
    is based on self-evident social patterns amenable to judicial notice. The
    fact that Indigenous peoples living on-reserve in this province generally face
    disadvantage relative to non-Indigenous Ontarians living off-reserve in terms
    of access to critical public services is beyond dispute. The specific impact of
    this disadvantage with respect to coronial services, which Commissioner Goudge
    deemed unacceptable over a decade ago, was incorporated by reference into the
    amended statement of claim through the Goudge Report.

[162]

Further, as in
Mathu
r,
in my view it is not apparent
    at this early stage that the appellants will be unable to show that the
    respondents alleged conduct widened, rather than narrowed, the alleged coronial
    service gap between Indigenous on-reserve residents and the rest of society.

[163]

Accordingly, I would conclude that the motion judge misapplied
Auton
and incorrectly struck the appellants s. 15 claim on the basis that it sought
    a benefit not provided by law.

(iii)

Does the appellants s. 15 claim provide
    sufficient particulars?

[164]

The respondents urge that, even if the appellants pleadings
    disclose allegations capable of supporting the s. 15 claim, the motion judge
    correctly found that those pleadings lack sufficient particulars regarding the
    alleged discriminatory conduct.

[165]

I do not accept this submission.

[166]

As noted by the Supreme Court of Canada in
Clark
,
at
    para. 68, a case concerning the Crowns motion to strike a claim which sought
Charter

damages, a claim should be struck out only if it is certain to fail. The
    court further affirmed that neither the unique nature of the facts underlying
    the [plaintiffs] action nor the strength of the Crowns defence is sufficient
    reason for refusing to allow a claim to move forward.

[167]

As noted, the amended statement of claim alleges that the
    respondents failed to provide coronial services of a comparable quality and
    level to those provided to off-reserve Ontario residents. The pleaded facts
    grounding that allegation include the investigating coroners failure to attend
    at the death or communicate with the appellants, contrary to the OCCO
    Guidelines, and his decision not to recommend an inquest into Brodys death, despite
    the findings and recommendations of the Goudge Report with respect to the historical
    pattern of inequality in coronial service delivery affecting on-reserve
    Indigenous and northern communities. Here, I would reiterate my view that a
    generous reading of the claim must take into account the broader historical
    pattern of disadvantage facing Indigenous peoples living on-reserve in northern
    and remote regions of our province, which is beyond dispute.

[168]

Moreover, the amended statement of claim alleges that the
    investigating coroner relied on negative stereotypes of First Nations parenting
    to guide the scope and direction of the investigation, supported by the pleaded
    fact that the investigating coroner directed police officers to visit the
    appellants home and make observations on the presence of drugs or alcohol.

[169]

In light of the foregoing, in my view the motion judge erred in
    concluding that the only fact alleged by the appellants supporting
    discrimination was the investigating coroners impugned direction to the
    police. This holding failed to engage with the appellants core claim of
    adverse impact discrimination, arising from an alleged denial of the benefit of
    equal application of the law with respect to coronial services.

Conclusion on the s. 15
Charter
claim

[170]

In my view, any one of the three errors I have identified in the
    motion judges s. 15 analysis warrants appellate intervention. Collectively, those
    errors reinforce my conclusion that the motion judge failed to read the
    appellants s. 15 claim generously, as one of adverse impact discrimination
    based on well-established historical patterns of disadvantage facing Indigenous
    peoples living on-reserve in Ontario. This failure, which ran contrary to the
    governing jurisprudence, led the motion judge to incorrectly strike this part
    of the claim.

[171]

Accordingly, I would conclude that the motion judge erred in finding
    it plain and obvious that the appellants s. 15
Charter
claim would
    fail. I would allow this portion of the claim to proceed to trial.

(b)

The
Charter
Damages Claim

[172]

The respondents contend that even if the facts alleged in the
    amended statement of claim are capable of establishing a
Charter

breach
    of s. 15, the motion judge was correct to conclude that those facts could not
    give rise to
Charter
damages as a remedy under s. 24(1).

[173]

Section 24(1) of the
Charter
provides as follows:

Anyone whose rights or freedoms, as guaranteed
    by this Charter, have been infringed or denied may apply to a court of
    competent jurisdiction to obtain such remedy as the court considers appropriate
    and just in the circumstances.

The
Ward

framework on the
    availability of
Charter
damages

[174]

In assessing this issue, I will focus, as did the motion judge, on
    the Supreme Court of Canadas
Charter

damages framework in
Ward
    v. Vancouver (City)
,
2010 SCC 27
, [2010] 2 S.C.R. 28. In
Ward
,
    McLachlin C.J.C. set out the following four-part test governing the
    availability of
Charter
damages:

1)

Has a
Charter
right been breached?

2)

Would damages fulfill one or more of the related
    functions of compensation, vindication of the right, and/or deterrence of
    future breaches?

3)

Has the state demonstrated countervailing
    factors that defeat the functional considerations supporting a damages award, rendering
    damages inappropriate or unjust?

4)

If warranted, what is the appropriate quantum of
    damages?

[175]

Of importance in this pleadings appeal, the availability of
Charter
damages is an evolving area of law. As Moldaver J. stated in
Henry v.
    British Columbia (Attorney General)
, 2015 SCC 24, [2015] 2 S.C.R. 214, at
    para. 35:

Charter
damages
    are a powerful tool that can provide a meaningful response to rights
    violations. They also represent an evolving area of the law that must be
    allowed to develop incrementally:
Ward
,
at para. 21. When defining the
    circumstances in which a
Charter
damages award would be appropriate and just, courts must therefore
    be careful not to stifle the emergence and development of this important
    remedy.

The alleged
Charter
breach and
    functional considerations

[176]

In the amended statement of claim, the appellants allege a
Charter
breach and contend that
Charter

damages would fulfill the
    functional objective of compensation. The appellants further allege that the
    respondent coroners failed to act in good faith in applying the
Coroners
    Act
, such that
Charter
damages are available, notwithstanding the
    constitutionality of the

Act itself.

[177]

The respondents argue that such bald, conclusory statements do not
    satisfy the standard required for allegations of bad faith, and that further
    particulars are needed.

[178]

As with the concern about particulars regarding the s. 15
Charter
claim, I do not find the respondents argument persuasive. In my view, the
    appellants core allegation  that the investigating coroner deliberately
    adhered to a known discriminatory pattern of neglect in death investigations in
    on-reserve Indigenous communities  is sufficient to particularize the
    requisite threshold misconduct engaging
Charter
damages for the
    purposes of a pleadings motion.

Countervailing factors

[179]

Under
Ward
, if the first two elements of the
Charter
damages framework are established, the burden shifts to the Crown to identify
    countervailing factors which could defeat any functional considerations in
    support of a damages award.

[180]

The respondents urge that the motion judge correctly referred to two
    such countervailing factors which they say should preclude the appellants from
    seeking
Charter
damages: (i) the availability of judicial review under
    the
Coroners Act
; and (ii) good governance concerns.

[181]

As I will explain, in my view neither factor is capable of
    supporting the motion judges conclusion to strike the
Charter
damages
    claim.

(i)

The availability of judicial review as a
    countervailing factor

[182]

The availability of alternative remedies was identified in
Ward
as a factor which could justify rejecting
Charter
damages, even where
    a plaintiff has otherwise established an entitlement to those damages. In
Ernst
,
    Cromwell J. held that judicial review could constitute such an alternative
    remedy: at paras. 32-41.

[183]

Relying on Cromwell J.s analysis in
Ernst
, the motion
    judge found, at paras. 139-40, that the availability of judicial review under the
Coroners Act
provided an alternative remedy to
Charter
damages
    for the appellants:

A court can order corrective action. Notably,
    a court can order that an inquest take place. This would go a long way towards
    compensating and vindicating the plaintiffs for alleged inadequacies in the
    coronial investigation.

Judicial review would also provide a
    convenient process to clarify what the
Charter
required of the
    Coroners throughout the investigation and the discretionary decision making
    process. This sort of clarification plays an important role in preventing
    similar future rights infringements. Finally, judicial review might well have
    addressed the breach much sooner and thereby significantly reduced the extent
    of the breachs impact on the plaintiffs as well as vindicate their right to
    equal treatment under the law pursuant to s. 15.

[184]

As the appellants point out, however, the functional consideration
    of compensation focuses mainly on their personal loss: physical,
    psychological, pecuniary, and harm to intangible interests. This latter type
    of harm includes distress, humiliation, embarrassment, and anxiety. Judicial
    review is not intended to address these types of harm, nor is there reason to
    expect that the remedies available on judicial review would be effective in
    doing so.

[185]

The appellants further submit that discrimination is an affront to
    human dignity and self-worth and is therefore appropriately remedied by an
    award of damages. In this context, judicial review, even if it resulted in a
    reversal of the decision not to hold an inquest, would not provide an adequate
    remedy.

[186]

I would accept the appellants submissions on this alleged countervailing
    factor. In my view, it is not plain and obvious that judicial review would be
    an adequate alternative remedy for the appellants in this case.

[187]

It is important to recall that the concern for alternative remedies
    is not intended to limit the availability of damages, but rather to limit
    duplicative claims and double-recovery. This court expanded on this point in
Brazeau
    v. Canada (Attorney General)
, 2020 ONCA 184, 149 O.R. (3d) 705, at para.
    43:

Ward
contemplates
    concurrent claims for private law and
Charter
damages, provided an
    award of
Charter
damages is not duplicative: at para. 35. If there
    is another avenue to damages, a
further
award of damages under s. 24(1)
    would serve no function and would not be appropriate and just: at para. 34.
    Nor does Ward create a hierarchy of remedies with
Charter
remedies
    coming last. A claimant is not required to show that she has exhausted all
    other recourses: at para. 35. The evidentiary burden is the reverse. It is for
    the state to show that other remedies are available in the particular case
    that will sufficiently address the breach: at para. 35 [Emphasis in original.]

[188]

Put simply, although judicial review was available to the appellants
    in this case, I see nothing in this record to suggest the relief the appellants
    might have secured through judicial review would have been duplicative of a
    potential
Charter

damages award. As indicated, the appellants seek
    compensation for alleged personal and intangible loss arising from what they intend
    to show was a discriminatory coronial investigation into the death of their
    loved one. In my view, it is far from plain and obvious that the relief available
    on judicial review could sufficiently address this kind of breach.

[189]

Accordingly, I would conclude that the motion judge misapplied the
    test on a motion to strike in finding at this preliminary stage that judicial
    review would provide an alternative remedy sufficient to vindicate the
    [appellants]
Charter
claim.

(ii)

Good governance as a countervailing factor

[190]

The second countervailing consideration identified by the
    respondents relates to good governance. Although it was not dispositive in
    this case, the respondents submit that good governance concerns militate
    against holding regulatory decision-makers like the coroners liable for
Charter
damages.

[191]

In
Ward
,
at para. 33, the court affirmed that
    concerns for good governance could make a damage award inappropriate and
    unjust. McLachlin C.J.C. explained this consideration, at paras. 39-40:

The rule of law would be undermined if
    governments were deterred from enforcing the law by the possibility of future
    damage awards in the event the law was, at some future date, to be declared
    invalid. Thus, absent threshold misconduct, an action for damages under s. 24(1)
    of the
Charter
cannot be combined with an action for invalidity based
    on s. 52 of the
Constitution Act
, 1982
.

[T]he state must be afforded some immunity
    from liability in damages resulting from the conduct of certain functions that
    only the state can perform. Legislative and policy-making functions are one
    such area of state activity. The immunity is justified because the law does not
    wish to chill the exercise of policy-making discretion. [Citations omitted.]

[192]

Contrary to the respondents submission, I see no good governance concerns
    in this case which could justify striking the appellants claim for
Charter
damages. The appellants do not challenge the
Coroners Act
itself. Therefore,
    there is no potential for liability associated with the legislation itself in
    the appellants claim. To the extent there is an exercise in policy-making at
    issue in this appeal, it is the policy set out in the OCCO Guidelines, which urges
    investigating coroners to attend the scene of death investigations involving children,
    no matter how far the coroners may be from the death scene. Far from a chill
    on policy-making, the potential for liability in this case may well act as a
    catalyst for paying greater attention to exercises of policy-making.

Conclusion on
Charter
damages

[193]

In short, as with the s. 15 claim itself, I would conclude that the
    motion judge erred in striking the appellants claim for
Charter
damages. In my view, the
Charter

damages claim is not certain
    to fail and should be permitted to proceed.

(4)

GOOD FAITH IMMUNITY AND CROWN VICARIOUS
    LIABILITY

[194]

The appellants raise two additional grounds of appeal, contending
    that the motion judge erred by finding: (a) that the facts as pleaded could not
    overcome the good faith immunity clause at s. 53 of the
Coroners Act
;
    and (b) that an investigating coroner is not a servant or agent of the Crown. As
    I will explain, given my analysis above, it is not necessary to resolve either ground.

(a)

The Good Faith Immunity Clause

[195]

The appellants submit that the motion judge erred by finding the
    facts pleaded could not overcome the good faith immunity clause in s. 53 of the
Coroners Act
.

[196]

The motion judge directed his finding on the good faith immunity
    clause to the appellants claim in negligent supervision. As I have found no
    error in the motion judges striking of that portion of the appellants claim,
    which relates only to the supervising coroners, it is not necessary to address his
    striking of the claim under s. 53.

[197]

For greater clarity, the good faith immunity clause, whatever its
    scope in relation to claims in negligence, does not, in my view, foreclose
    either the claim for misfeasance in public office or the s. 15
Charter
claim.

(b)

The Investigating Coroner as Servant or Agent of
    the Crown

[198]

The appellants final ground of appeal is that the motion judge
    erred by finding that an investigating coroner is not a servant or agent of the
    Crown.

[199]

On this point, the motion judge cited, at para. 81, case law
    affirmed by this court in support of his conclusion that the Crown could not be
    vicariously liable for the investigating coroners actions. He further held
    that, while the Crown had conceded it could be liable for the supervising
    coroners negligence, vicarious liability was precluded by his earlier finding
    that the negligence claim was doomed to fail.

[200]

As indicated, the appellants make no claim in negligence against the
    investigating coroner in the amended statement of claim. As such, and in light
    of my view that the motion judge was correct to strike the claim in negligent
    supervision, it is unnecessary to explore whether an investigating coroner is a
    Crown servant or agent for the purposes of this appeal.

CONCLUSION

[201]

For reasons above, in my view the motion judge erred in striking the
    claims for misfeasance in public office and breach of s. 15 of the
Charter
,
    which if proven may give rise to a
Charter
damages claim.

[202]

However, I would not disturb the motion judges decision to strike the
    claim for negligent supervision without leave to amend. This renders moot the
    appellants related grounds of appeal regarding the good faith immunity clause
    and Crown vicarious liability.

[203]

Accordingly, I would allow the appeal in part and set aside para. 1
    of the motion judges order insofar as it strikes the claims in misfeasance in
    public office and breach of s. 15(1) of the
Charter
, without leave to
    amend.

[204]

I would dismiss the appeal in all other respects.

[205]

The parties have agreed on costs.

Released: July 26, 2021 R.G.J.

L.Sossin J.A.

I agree. R.G. Juriansz J.A.

I agree. K. van Rensburg J.A.

[1]
I note
    that, while the pleadings refer to the 2007 version of the OCCO Guidelines and
    this version also was relied upon in argument before this court, the motion
    judge cited the 2013 version of the same document. While there are minor
    differences between the two versions, those differences are not material to
    this analysis. For clarity, however, I will refer to the 2007 version as the OCCO
    Guidelines throughout these reasons.