Ontario appeals ruling opening door to aid families navigating ‘daunting’ probes of loved ones’ deaths

1 London

London News & Search

1 News - 1 eMovies - 1 eMusic - 1 eBooks - 1 Search

Even Kari Harris, a health and safety executive and registered nurse, found the experience intimidating.

“It was so daunting and so overwhelming,” she says.

In 2014, the London-area woman sat through a week-long coroner’s inquest into the death of her son, Jonathan Dew, 26.

Everyone had lawyers. So she had to have one, too.

“You are facing lawyers who are well seasoned. It is not a system you can properly navigate through without your own lawyer.”

That inquest led to a Superior Court ruling last summer that opened the door to families getting legal help to navigate through the inquests into the deaths of their loved ones.

But now, the province is appealing that decision. The Ontario Court of Appeal, the province’s highest court, will hear arguments Sept. 20.

“This will have enormous implications,” said Andrew Murray of Lerners Law Firm in London, who won the lower court ruling last summer and is arguing against the appeal.

“There appears to be an opportunity for real change . . . that I hope might level the playing field as the state has unlimited resources, compared to the families struggling to participate in a meaningful way at an inquest.”

A spokesperson for Ontario’s Ministry of the Attorney General said he couldn’t comment about a matter before the courts.

Other lawyers agreed it’s time for the province to help families pay for the costs at coroner’s inquests.

“An inquest is government-run. Families should be able to have counsel present to advise them and answer questions,” said London lawyer Gord Cudmore.

Formerly of London and Strathroy, Dew died Sept. 21, 2012, after a stay in the Windsor jail, his brain deprived of oxygen because of a cardiac arrest connected to a collapsed lung. Jail staff believed he was suffering from drug withdrawal.

Like other family members at other inquests, Harris endured days of harrowing details about the death and the missteps that prevented her son getting proper care.

“It’s been difficult. It still is,” his mother, Harris, said.

In her role as vice-president of health and safety at London construction giant EllisDon, Harris knows her way around procedures. But even the St. Thomas woman found the inquest system difficult to navigate.

“It was overwhelming to me just to be granted status. How can families ever be expected to not have legal representation through this process?”

Members of the family have sued the province and jail staff.

In connection with that lawsuit, Murray also sought a court ruling that Ontario law allows families to recover the legal costs incurred by an inquest.

In an August 2016 decision, the Superior Court of Justice ruled that the law allowed for the recovery of costs at a coroner’s inquest.

There’s a bit of a catch: The costs can be recovered only in association with a successful civil claim.

But with many inquests leading to civil action, the province would be on the hook for paying for the lawyers of dozens of families each year.

“When you add them all up, it’s a pretty sizable number,” Murray said.

Preparing for and attending a five-day inquest can easily run a lawyer’s bill to between $15,000 and $20,000, Murray said.

The province paid for two lawyers for the Dew inquest, Murray noted.

“It is a bit rich for the province to say we can do it, hire two lawyers, but you (the family) are on your own.”

In theory, inquests aren’t supposed to pit lawyers against each other as in a trial.

In reality, civil claims involving negligence often loom over inquests, putting lawyers at odds with each other.

By heading to the court of appeal, the province is playing a bit of a “high-stakes” gamble, Murray said. A high court ruling in his favour would bind the province to the decision more forcefully than one lower court ruling, he said.

Even as the province appeals that lower court ruling, it’s also suggesting the laws might change some day to allow more people to get reimbursed for legal fees at inquests.

At the moment, the province does have a reimbursement program available, but only to families at inquests whose loved ones died from a criminal act. In the past five years, that program has paid for legal fees under the program only twice, and only in 2015.

Last week, the province announced it’s expanding its reimbursement program to families involved in inquests that involved police action.

That would still only cover seven inquests of 23 held in Ontario last year.

But the province also announced it’s reviewing the entire reimbursement program.

“I think in the court of public opinion things are shifting,” Murray said.



By the numbers

Inquest reimbursements from province

0 in 2013

0 in 2014

2 in 2015, totalling 101,971.89

0 in 2016

0 to date in 2017

1 London

London News & Search

1 News - 1 eMovies - 1 eMusic - 1 eBooks - 1 Search



Leave a Reply