In a recent decision (Meekis v Ontario, 2021 ONCA 534), the Ontario Court of Appeal offered guidance on striking claims for failing to disclose a reasonable cause of action in the context of the tort of misfeasance in public office and Charter damages claims involving discrimination.
Brody Meekis was a four year-old boy from Sandy Lake First Nation who died of complications from strep throat. The coroner considered whether to conduct an inquest into Brody’s death and ultimately decided against doing so. Brody’s family members then brought an action for damages, including claims in tort law against the investigating and supervising coroners and the province of Ontario under the Canadian Charter of Rights and Freedoms.
The defendants brought a motion to strike the claim under Rule 21.01(1)(b) as disclosing no reasonable cause of action. The motion judge struck all the claims, including the misfeasance in public office and Charter claims, without leave to amend.
Brody’s family members appealed to the Court of Appeal for Ontario. Justice Sossin, on behalf of the court, concluded that the motion judge erred in striking the misfeasance in public office and Charter claims and held that these claims should be allowed to proceed. The other claims were either not appealed to the Court of Appeal or properly struck.
With respect to the tort of misfeasance in public office, the Court of Appeal reviewed the Supreme Court’s recent decision in Ontario (Attorney General) v Clark, 2021 SCC 18. One of the requirements for the tort of misfeasance in public office, as affirmed in Clark, is that the public official deliberately engaged in an unlawful act in their public capacity.
The motion judge concluded that because the Coroners Act gave discretion to coroners, the misfeasance in public office claim could not succeed. The Court of Appeal, however, disagreed. According to Justice Sossin, the alleged wrongful act for the misfeasance claim was that the coroners exercised their discretion to knowingly discriminate against a class of persons, including Brody and his family members. This was a viable claim for misfeasance in public office and Brody’s family members pleaded facts in support of this claim.
With respect to the Charter claim, Justice Sossin noted that Brody’s family members were alleging adverse impact discrimination. A claim of adverse impact discrimination looks behind facially neutral rules to look at how those rules are actually applied in practice. Brody’s family members did not allege they were entitled to a particular outcome from the coroner’s investigation, but rather, “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” (para. 153).
Justice Sossin held that it was not plain and obvious the claim for Charter damages could not succeed. He accepted that Brody’s family members’ core allegation (“that the investigating coroner deliberately adhered to a known discriminatory pattern of neglect in death investigations in on-reserve Indigenous communities”) was sufficient to particularize the threshold misconduct that could engage Charter damages (para. 178).
Although Charter damages will not be awarded where the Crown can establish countervailing factors that would make Charter damages inappropriate, Justice Sossin did not accept that any countervailing factors were established here that would make it appropriate to strike the Charter damages claim. Judicial review is available under the Coroners Act, but Brody’s family members’ claim focused on their distress, humiliation, and anxiety, which judicial review is not intended to address. Justice Sossin also did not accept that there were good governance concerns which would justify striking the Charter damages claim.
Ultimately, the Court of Appeal’s decision in Meekis offers helpful guidance regarding the test for striking a claim for failing to disclose a cause of action and particularly in the context of misfeasance in public office and Charter claims. As the Court of Appeal emphasized, claims will only be struck when it is clear that the claim has no reasonable prospect of success and courts must err on the side of allowing novel but arguable claims to proceed.
The court’s decision in Meekis allows Brody’s family members to continue their misfeasance and Charter claims against the coroners and province of Ontario. The court did not address the merits of Brody’s family members’ claims. That determination will have to await another day. Brody’s family members are advancing some novel claims and it will be interesting to see how this case progresses and whether they will ultimately be successful.