) ) DR. JANE TURNER Applicant – v. –, 2023 ONSC 2670

CITATION : Turner v. Death Investigation Oversight Council, 2023 ONSC 2670 DIVISIONAL COURT FILE NO.: 175/20 DATE: 20230508 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Lederer, McCarthy and Nishikawa JJ. BETWEEN: ) ) DR. JANE TURNER Applicant – and – DEATH INVESTIGATION OVERSIGHT COUNCIL and DR. MICHAEL POLLANEN Respondents ) ) ) ) ) ) ) ) ) ) ) ) ) Sujit Choudry and David Baker , for the Applicant Alexandra Clark and Stephanie Figliomeni , for the Respondent, Death Investigation Oversight Council Wayne Cunningham , for the Respondent Dr.

Pollanen ) ) ) HEARD by video conference : February 7, 2023 Lederer, J. [ 1 ] This is an application for judicial review. It should never have been brought. [ 2 ] This application does nothing to advance the underlying important and sensitive social policy concern, the investigation of the unexpected death of children: ...the tragedy of a child who dies in suspicious circumstances has many victims.

It becomes vital for a society to deal with the tragedy in a way that is right and just, and that allows all those affected to come to terms with it. [1] The “Decision” being reviewed [ 3 ] This application considers a complaint of one forensic pathologist of the actions of the Chief Forensic Pathologist of Ontario, in the context of a particular death of a particular child. They disagreed as to the cause of death: was it natural or could it have been traumatic? When a complaint is made concerning the actions of the Chief Forensic Pathologist, it is directed to the Death Investigation Oversight Council.

By statute, the Death Investigation Oversight Council has a Complaints Committee. Every complaint made about the Chief Pathologist is to be reviewed by the Complaints Committee. [2] On March 4, 2019 the Applicant, Dr. Jane Turner lodged a complaint with the Death Investigation Oversight Council. [3] On April 29, 2019, Dr. Jane Turner made additional submissions in support of her complaint. [4] The Complaints Committee undertook an investigation.

On December 9, 2019, the Death Investigation Oversight Council delivered the results of its review in a “reporting letter”. [5] In so doing it noted: It must be understood at the onset of this report that DIOC is not a medical body and does not have the authority to review or assess medical conclusions or opinions with respect to a cause or manner of death. DIOC is an advisory body. The purpose of the Committee is to consider complaints with the goal of helping improve Ontario’s death investigation system.

In reviewing a complaint, the committee considers procedures undertaken and, if necessary, makes recommendations to improve the death investigation system. [6] [ 4 ] The result of the review was 13 recommendations, for the most part directed to the Ontario Forensic Pathology Service (in addition, two of the recommendations include direction to the Office of the Chief Coroner). The review concludes by: • repeating that it is the role of the Death Investigation Oversight Council “to provide recommendations pertaining to death

investigation services of the Office of the Chief Coroner of Ontario and the Ontario Forensic Pathology Service”, • observing that it “maintains that the formalization of the processes noted in this reporting letter will assist in clarifying current procedures and bridging any gaps that may exist.

This clarity will result in more streamlined communication between all levels of staff and management within the OFPS and the OCC”, and • requesting “a response from the Chief Coroner and Chief Forensic Pathologist to the recommendations outlined in this report within 30 days. [7] What is the issue? [ 5 ] The Factum filed on behalf of the Applicant, Dr. Jane Turner, seeks a judicial review of the reporting letter delivered by the Death Investigation Oversight Council. She summits that the “decision” it demonstrates is unreasonable.

To understand what the complaint is based on, it is relevant to ask what result Dr. Jane Turner sought. What remedy did she submit would reasonably have responded to her complaints? [ 6 ] In the material dated April 29, 2019, supplementary to her complaint, Dr. Jane Turner outlined the five “Remedies” she sought that were directed to Ontario Forensic Pathology Service [8] : (

i) Remedy: Respect for Independent, Evidence-based Professional Opinions, (ii) Remedy: An Independent Peer Review Process, (iii) Remedy: A Clear Guideline As to When External Reviews Should Be Initiated, by Whom and What Is the Process, (iv) Remedy: A Fair Report from the Chief Forensic Pathologist, and (

v) Remedy: Administrative Decisions regarding Reprimands Must Be Supported by Written Reasons with an Action Plan for Improvement. [9] [ 7 ] The Respondent, Dr. Michael Pollanen, the Chief Forensic Pathologist of Ontario, points out that the 13 recommendations that were the substance of the “reporting letter” responded, in various ways, to each of the “Remedies” requested. [10] The Applicant makes no quarrel with these recommendations or that they respond to the remedies outlined. The problem appears to be that they do not go far enough, or more accurately, do not go where Dr. Jane Turner really wants to go.

This judicial review, and the complaint that underlies it, seeks to sanction the actions Dr Michael Pollanen as the Chief Forensic Pathologist, such that the only “reasonable” determination was for the Death Investigation Oversight Council to act under its authority to recommend to the Minister the dismissal of the Chief Forensic Pathologist. [11] The failure to do this is ascribed to the Death Investigation Oversight Council not understanding the full breadth of its power and jurisdiction: The DIOC acted unreasonably because it misconstrued its power to take appropriate actions to respond to a substantiated complaint against the CFPO to make “recommendations to improve the death investigation system”.

This is not true. For example,

section 8.1(3) of [the] Coroners Act expressly authorizes the DIOC to recommend to the Solicitor General the dismissal of the CFPO. While

section 8.1 (3) does not set out the circumstances when the DIOC can make such a recommendation, it must include situations where the DIOC concludes, in the course of reviewing a complaint against the CFPO, that dismissal may be warranted. [12] [ 8 ] There is nothing in the reporting letter, or for that matter anywhere else in the record that suggests that the Death Investigation Oversight Council was unaware of its authority to recommend the dismissal of the Chief Forensic Pathologist Ontario to the Minister.

Instead, what is not present is any determination or demonstration that such a recommendation was warranted. [ 9 ] To understand the true catalyst for this judicial review, it is helpful to begin with the letter initiating the complaint to the Death Investigation Oversight Council. Dr.

Jane Turner begins that letter by describing her own career including her “pride in the fact that both criminal prosecution and criminal defense attorneys seek my services and that my reputation in the legal community now—as it has always been—is that I am fair, impartial and reasonable.” [13] [ 10 ] This was followed by an array of general and uncompromising allegations challenging the actions and performance of Dr. Michael Pollanen in his role as the Chief Forensic Pathologist, among them: • even after the France case [ 14] , Dr.

Pollanen continues to sustain a strong bias in pediatric cases in favor of child abuse, using his position of power to threaten and intimidate pathologists who hold reasonable dissenting opinions and to manipulate the investigation and review of these pediatric and other cases to ensure his bias is upheld, • Dr. Pollanen’s formation of the Child Injury

Interpretation Committee [15] following from his testimony in the France case is not so much an attempt to provide checks and balances in the system as it is a tool he uses to enforce his biases, • Dr. Pollanen abuses his position of power, employs bullying tactics, uses fear and intimidation against pathologist at the Hamilton Regional Forensic Pathology Unit and has made repeated attempts to discredit their work as a means to undermine their confidence and weaken their position, • it was Dr. Jane Turner’s experience and observation that Dr.

Pollanen employs gaslighting, making emphatic statements as if they are fact when, upon reflection and review, they are not substantiated by medical evidence or literature, • in his interactions with the pathologists of the Hamilton Regional Forensic Pathology... Dr. Pollanen demonstrates an intolerance of reasonable dissenting opinions, claiming that he must do so because he is charged with “protecting the system”.

• Dr. Pollanen has retaliated against individuals and the Hamilton Regional Forensic Pathology Unit for having dissenting opinions on cases... Creating a chilling effect. [16] [ 11 ] Only after her review of these directed and largely general allegations does the complaint letter address the details (a timeline) of the case at hand, the death of a child that had occurred on December 3, 2017. [ 12 ] The supplementary material delivered by Dr.

Jane Turner on April 29, 2019 underscores that the complaint that is at the root of this judicial review is not the concern for the treatment of the death of the child but an effort seeking the removal of Dr. Michael Pollanen from his position as the Chief Forensic Pathologist: My complaint pertains to the inappropriate influence and abuse of authority exercised by Dr. Michael Pollanen, Chief Forensic Pathologist and Dr.

Dirk Huyer, Chief Coroner of Ontario. [17] I am aware that influence and abuse of authority are difficult to explain to persons not present in the environment and unaware of the professional relationships and working structure. I am aware that components of this complaint are difficult to prove. [18] [ 13 ] With this difficulty in mind, Dr. Jane Turner went beyond the particular case. She reviewed it and two others all to the purposes of demonstrating her differences with Dr. Michael Pollanen: In each of the cases described above, the matter came down to a different professional opinion.

No one has proven that the conclusions of my team and I rendered were incorrect or even unreasonable. Rather, Dr. Pollanen undertook a narrow review of the evidence and rendered a different opinion. He then determined that because I did not share that same opinion, I must be wrong. Even when presented with evidence which challenged his opinion, Dr. Pollanen simply declined to address this contradictory evidence and rendered conclusions which focused on the evidence which did support his opinions. [19] Dr.

Pollanen then used his position as Chief Forensic Pathologist to secure the opinions of others who do not dare to disagree with him; even if this meant changing their initial opinion. Dr. Pollanen’s bias is particularly evident in the [redacted] case. He disciplined my entire team simply because he disagreed with the manner of death in that case. Without waiting for additional evidence to come in, he made an administrative decision to discipline the team and place them on remediation based on his own bias. For obvious reasons, this is a dangerous environment to be working in.

If forensic pathologists can be reprimanded and disciplined by being put on remediation before all the evidence in a particular case is assembled, there will be a hesitancy to provide preliminary opinions. Moreover, if forensic pathologists can be disciplined simply for rendering a conclusion which is not aligned with Dr. Pollanen’s subjective biases, regardless of the evidence in the case, there will be a hesitancy to provide objective and well-supported conclusions. Or alternatively, objective and well-supported conclusions will be abandoned as a result of pressure from Dr.

Pollanen when he indicates a difference of opinion. As a result of Dr. Pollanen’s interference and biases, the independence and integrity of death investigations in Ontario is at stake. This is the basis of my complaint. ... [20] [ 14 ] It is this supplementary submission that ends by listing the five remedies. They are introduced as follows: ...Additional steps need to be taken in order to protect the integrity and independence of death investigations in Ontario so that the conclusions are not subjected to improper influence.

This will also protect the reputation of forensic pathologists like myself and ensure that Ontario maintains such professionals instead of driving them out of the province because of the toxic work environment. Below are my suggestions and requested remedies to address these problems. [21] [ 15 ] The remedies are responded to in the 13 recommendations that are the substance of the “reporting letter” issued by the Death Investigation Oversight Council. I repeat, Dr. Jane Turner does not quarrel with this understanding.

The foundation of this judicial review is not to improve the process of investigation, it is the antipathy with which she views Dr. Michael Pollanen and her belief that the only reasonable result is a recommendation that he be removed as the Chief Forensic Pathologist. [ 16 ] It is this perspective that informs the substance of this judicial review. The background [ 17 ] This application seeks to judicially review the reporting letter and, it would seem, the process undertaken by the Complaints Committee in its investigation.

I say the process “would seem” to be a concern because the actual conduct of the investigation is not. In the Factum filed on her behalf, Dr. Jane Turner acknowledges that, between May to September 2019, the “Complaints Committee conducted an extensive investigation into [the] complaint”. [22] The issue is not the substance of the investigation but the

interpretation or understanding to be taken from what was learned. [ 18 ] The child died on December 3, 2017. Dr. Jane Turner performed an autopsy on December 4, 2017. She observed abnormalities that could be indicative of child abuse. But taking account of other factors, she concluded that the cause of death was bacterial sepsis. As submitted by Dr.

Jane Turner, a bone pathologist confirmed that the bone lesions appeared to arise from a bone disease (osteopenia) as opposed to injuries thus suggesting death was by natural causes. [23] The report prepared by that specialist states the conclusion somewhat differently: Although, the underlying cause of fractures is difficult to definitely explained [ sic ], in particular due to limitation of accurate assessment of possible abnormal bone mineralization using decalcified bone specimens , there are changes suggestive of metabolic bone disease.

Further correlation with clinical and radiographic findings as well as biochemical test results is recommended. [24] [Emphasis added] [ 19 ] Subsequently, on December 11, 2017 a neuroradiologist, based on radiologic findings of bone fractures, concluded “non- accidental injury [child abuse] should be considered”. Although not referred to by Dr. Jane Turner this was confirmed by the Chair of the

Department of Radiology at McMaster University who was also the Chief of Diagnostic Imaging at Hamilton Health Sciences. [25] A radiologist from Sick Children’s Hospital also reviewed the file and concluded that “the bony architecture was normal” (the observations that had been made were not the result of underlying bone disease). [26] As a result of the concerns this raised, the Hamilton Children’s Aid Society was contacted and an examination of the dead child’s twin was undertaken. Unexplained bruising (referred to by Dr.

Jane Turner as the same bone abnormalities) was observed and the conclusion drawn that this was caused by injuries. There was no evidence of underlying bone disease: Considering the totality of [AB’s twin’s] medical history, family history, x-rays, blood chemistry panel and genetic testing, there was no evidence to support the notion that he has a bone disorder which would cause him to experience fractures either spontaneously or from minor trauma. I reviewed all of this information with the specialist colleague with expertise in the diagnosis and management of bone disorders in infants and children.

This clinician was in full agreement with my

interpretation of the data. [27] ... This infant [the twin] had unexplained bruising to his arm, a brain lesion which is most likely the result of a trauma and for which no accidental traumatic event has been described. He had 30 rib fractures and tibial, humeral, radial and ulnar fractures, for which no accidental trauma has been described. Despite an extensive battery of medical tests, no evidence of an underlying medical condition to explain any of these findings was identified.

As such, the only remaining logical explanation for all of his injuries is that he was subjected to at least one, and possibly multiple episodes of significant inflicted trauma. [28] [ 20 ] The remaining children were removed from their home. In her factum Dr. Jane Turner expresses the concern that these conclusions were drawn and the action taken notwithstanding her determination that the bone lesions required further pathologic examination. [29] [ 21 ] To this point Dr. Michael Pollanen had no involvement in the issues concerning the death of the child. What is clear is that although, as Dr.

Jane Turner saw it, there was reason to believe that the death was caused by the presence of underlying bone disease, there were others who believed that the death was the result of trauma demonstrative of abuse. Due to these divergent opinions the Regional Supervising Coroner called a case conference. It took place on February 22, 2018. Various of the doctors who had been involved attended. Dr. Jane Turner made a power point presentation supporting her opinion that the death was due to natural causes and was not child abuse. Dr. Michael Pollanen attended by telephone.

As reported in the notes of one of the other doctors in attendance, during this “first call” Dr. Michael Pollanen said “it could be bone disease based on the description given over the phone.” Nonetheless, Dr. Jane Turner and Dr. Michael Pollanen had “an animated discussion, they had differences of opinion”. [30] [ 22 ] The next day, February 23, 2018 Dr. Michael Pollanen sent an email to Dr. Jane Turner regarding the differences as to the cause of death: was it natural or traumatic. He pointed out that this had created difficulties for child protection services and the clinical management of the twin.

It was his opinion that the case conference had not resolved the matter. While he believed that further review of the bone histology was necessary and decided to begin this review by looking at the slides for himself, he was careful to indicate that this should not be interpreted as undermining the diagnosis of Dr. Jane Turner or indicating any lack of confidence in her determination. He left it to her whether the slides should be sent to him or whether he should attend in Hamilton and review them there. [31] [ 23 ] Dr. Jane Turner responded.

Her email includes what could best be referred to as a veiled (that is to say unexpressed) criticism of the pediatrician involved: There is much I could write here about the pediatrician and his conduct of this case, but I will save it for another time. I will just say that he is doing this family a grave disservice by refusing to accept the facts in this case and by trying to obfuscate the autopsy findings. [32] [ 24 ] On February 28, 2018 [33] Dr. Michael Pollanen went to the Hamilton Regional Forensic Pathology Unit to meet with Dr. Jane Turner and review the slides. In both the Factum filed on behalf of Dr.

Jane Turner and the complaint letter of March 4, 2019, the conduct of this review is described in a perfunctory manner: On February 28, 2018, Dr. Pollanen came to the Hamilton Regional Forensic Pathology Unit. After reviewing AB’s slides... for 20 minutes, Dr. Pollanen declared to Dr. Turner that the cause of death was child abuse, even though he did not review the other available evidence. [34] [ 25 ] The note to file prepared by Dr. Michael Pollanen with respect to this review reveals a different approach and a different conclusion.

It contains a detailed description of what he had seen in the slides and continues: My overall impression is that there are multiple healing fractures involving the posterior rib heads, metaphyses of long bones, and the midshaft of a humerus. I do not recognize features of vitamin D deficiency rickets or any other pathological condition of bone, in the sections I have examined. On this basis, I am unable to explain the cause of the fractures on the basis of an abnormal histological appearance of the bone. Further clinico-pathologic and radiological correlation is indicated.

A review of ancillary laboratory results is also required. At this time, the underlying cause of the fractures has not been explained. However traumatic fracture is a consideration, in my opinion. [35] [ 26 ] Dr. Michael Pollanen goes on to say that he has discussed these findings with Dr. Turner, offered to share with her slides of rickets and healing fractures as a source of reference material and that she is still investigating the case and has yet to complete her final assessment.

The Note to File ends by stating that once that assessment has been completed and the autopsy report has been finalized, the case will be reviewed by the Child Injury

Interpretation Committee. [36] [ 27 ] I pause to point out that the decision to pass this on to the Child Injury

Interpretation Committee was made before Dr. Jane

Turner had completed her investigation and autopsy report. I do this because one of her concerns is that this referral was made by Dr. Michael Pollanen to undermine her work and conclusion, work that was not yet complete and a conclusion that was not yet final. [ 28 ] The Child Injury

Interpretation Committee was formed by Dr. Michael Pollanen in his role as Chief Forensic Pathologist. As noted by Dr. Jane Turner this followed the decision in R. v. France in which the judge was highly critical of Dr. Michael Pollanen [37] . The stated purpose of the Committee is to “review the autopsy report on cases, before the report is released from the [Ontario Forensic Pathology Service], fulfilling expressed criteria: ‘Physical Child Abuse’, ‘Neglect’ and ‘All triad cases’”. [38] The task of the Child Injury

Interpretation Committee is to “try to obtain a consensus opinion of the relevant medicolegal issues including the cause of death and how the injuries occurred”, and “can recommend further investigations, such as laboratory testing”. If there is no consensus and there are “points of disagreement, these will be recorded by the Chair in the minutes of the meeting” which “will be appended to the autopsy report and provided to the Chief Forensic Pathologist”. [39] [ 29 ] On behalf of Dr.

Jane Turner, it is submitted that in referring the case to the Child Injury Investigation Committee, Dr Michael Pollanen “acted unprofessionally and abused his authority, by departing from the Committee’s terms of reference ” and that this was done “in order to change [the] cause of death to child abuse”. [40] It is said that: ...the only reasonable inference is that Dr Pollanen convened the CIIC to overrule Dr. Turner. Indeed, he decided on February 28, 2018 that the AB case would be reviewed by the CIIC, after disagreeing with Dr.

Turner on the cause of death earlier the very same day. [41] [ 30 ] As the Note to File prepared by Dr. Michael Pollanen indicates, he did not disagree with Dr. Jane Turner, so much as he thought it wise not to discount the possibility of trauma as the cause of death (“traumatic fracture is a consideration”). As the record shows he was not alone in this concern. To find that Dr. Michael Pollanen, in making the referral, had “depart[ed] from the Committee’s terms of reference” one would have to discount any opinion that expressed concern for the possibility of child abuse.

It is the second of the three criteria which informs any review the committee undertakes: Physical child abuse: Specifically, cases that the forensic pathologist intends to opine that fatal or non-fatal injuries of an infant or child were caused by a non-accidental (NAI) mechanism. This includes case [ sic ] with multiple healing fractures in infancy or childhood. [42] [ 31 ] The suggestion that this case could not properly be referred to the Child Injury

Interpretation Committee because Dr. Jane Turner, as the “forensic pathologist...did not intend to opine that AB’s death was due to nonaccidental (NAI) mechanisms” [43] is at best overly technical but, in reality denies that the process exists to protect children, not to support the pathologist, particularly in the presence of concerns of other qualified individuals. The phrase “Specifically, cases where the forensic pathologist intends to opine that fatal or non-fatal injuries of an infant were caused by a non-accidental mechanism” refers to that circumstance but does not rule out the concerns of others.

In any case this does not in any way suggest, much less lead to the singular conclusion, that Dr. Michael Pollanen asked the Child Injury Investigation Committee to look at this situation with the purpose of overruling Dr. Jane Turner. [ 32 ] What it could indicate is that Dr. Jane Turner was unprepared, even in face of the concerns expressed, to consider the possibility that the cause of death was anything other than an underlying bone disease. But this too might not be correct. The documentary record demonstrates that, at the outset, Dr.

Jane Turner welcomed the involvement of the Child Injury Investigation Committee. She suggested a rewording of the issue being put to the committee, which was readily accepted by Dr. Michael Pollanen. [44] This exchange reads as the interaction of two concerned, reasonable and responsible professionals. [ 33 ] Dr. Jane Turner goes further in her allegation that the Child Injury Investigation Committee was misused by Dr. Michael Pollanen for the purpose of discrediting her opinion and analysis.

She alleges that the Chair of the Committee was appointed for the purpose of this review because he was a confederate (an ally) of Dr. Michael Pollanen’s. What is the basis for this allegation? It is said that Dr. Pollanen appointed the Chair in circumstances where he had no authority to do so. There is nothing in the record to support this idea. [45] It is noted that the Chair is the Deputy Chief Forensic Pathologist and thus reports directly Dr. Michael Pollanen.

He “was not arm’s length from Dr Pollanen”. [46] This is not enough to impugn the intent of Dr Michael Pollanen or the reputation of the Chair of the Child Injury Investigation Committee. What it does do is confirm how Dr. Jane Turner and those supporting her have misunderstood the process, its purpose and design. The Death Investigation Oversight Council, its Complaints Committee and the Child Injury Investigation Committee are directed to understanding what has happened in the context of the deaths and injuries they examine.

They respond to complaints in order to learn where the system of inquiry has failed and to recommend improvements. This is not a punitive process where senior officials respond to allegations with evidence led against them and they are required to defend their actions as if in court or a discipline committee. In an advisory setting, the process is advantaged by people who understand and are involved. [ 34 ] As it is there was evidence that, contrary to the claim made by Dr.

Jane Turner, the Chair of the Child Injury Investigation Committee was not selected only, or specifically, to chair the meeting related to the case being considered. He was the continuing chair. Dr. Jane Turner knew this and understood that with each case, Dr. Michael Pollanen and the Chair would select who will serve as members. She made the contrary allegations though she was not familiar with any guidelines, policies and procedures regarding the Committee. [47] [ 35 ] The Child Injury Investigation Committee met on May 24, 2018. Consistent with its stated practice, Dr.

Jane Turner, as the applicable forensic pathologist, made a power point presentation [48] and outlined the reasons for her opinion. [49] She was not present but attended by telephone. Everyone present was asked to provide an opinion. Some individuals declined due to limitations in their expertise. Others disagreed with Dr. Jane Turner. [50] At the meeting, Dr. Jane Turner was both defensive and angry. At one point she hung up the phone. After attempts were made to contact her, the discussion continued.

She rejoined the call. [51] [ 36 ] The opinion of the committee, at the end of this meeting, was that the cause of death was not adequately ascertained by the historical, circumstantial and pathological findings that were available: The bony pathology present was not convincingly representative of rickets or any other metabolic bone disease and that not only was inflicted trauma not excluded as the underlying etiology for the bony lesions, but that it may represent the best explanation for the findings identified - importantly, finding supportive of metabolic bone disease were not represented radiologically. [52]

[ 37 ] At the end of the meeting, Dr. Jane Turner pressed for and the committee agreed to obtain a second opinion from a pathologist with demonstrated expertise in both metabolic bone disease and trauma caused by inflicted injury. [53] The effort made to locate the appropriate expertise and to obtain this second opinion is another area which Dr. Jane Turner relies on as demonstrating the attempts of Dr. Michael Pollanen to manipulate the process to override her opinion that the cause of death was underlying bone disease. [ 38 ] The Chair of the committee attempted to find a suitable bone pathologist.

The pathologist suggested by Dr. Jane Turner did not have the expertise in “both metabolic and fractures”. A specialist in Minnesota was approached but “did not want to touch this case”. Ultimately, the Chair asked Dr. Michael Pollanen for a recommendation. He suggested that the Victorian Institute of Forensic Medicine in Australia be approached. [54] Dr. Jane Turner complained [55] and continues to complain that she was unaware of this decision and sees this as demonstrative of the efforts to set aside her views. There is no evidence of any such intention in this selection.

To the contrary she had provided a recommendation which was investigated but the individual was found not to have the required expertise. When she complained about the selection that was made, she was invited to raise the selection process at the subsequent (the second) meeting of the Child Injury Investigation Committee. She declined to attend on the following basis: I’m satisfied with the materials produced as a result of the action items from the last CIIC meeting. As such, I see no need for me to participate in your next meeting.

Please forward me the committee’s final report. [56] [ 39 ] Despite this indication of satisfaction but having expressed concern for the integrity of Dr. Michael Pollanen, the credibility of the Chair of the Child Injury Investigation Committee and the expertise of the members of that committee [57] , Dr Jane Turner now questions the capability of the group in Australia to provide the second opinion being sought. She submits that they were unable to provide the second opinion.

In doing so, she referred to the statement found in the report that was delivered that “none of us professes particular expertise in bone pathology [and] we defer to the opinion of the bone pathologist”. [58] She submits that, “[i]n short the [ Victorian Institute of Forensic Medicine ] did not conclude that the cause of death for [the child] was child abuse, leaving Dr. Turner’s conclusion standing ” [59] [Emphasis added].

This is said in the face of a report from the Victorian Institute of Forensic Medicine that opines that there are deficiencies in the material and that this stands as an impediment to accepting her analysis: In

summary (the view of the two of us) there are significant deficiencies in the materials provided which render review ability problematic and raise concerns over the adequacy of the cause of death as concluded by the pathologist. ... The evidence of sepsis [the underlying bone concern raised by Dr. Jane Turner] is weak. ... I’m uncomfortable ascribing these to sepsis given there are no features of systemic sepsis in this case (just bronchopneumonia which could potentially be ascribed to rib fractures). ... Therefore, I’m not as confident as the authors of this report [Dr.

Jane Turner] that abusive trauma can be excluded, but what we have is incomplete and based on that, in the unusual features of this case, I don’t think there is sufficient evidence to conclude with any degree of certainty that this is due to inflicted trauma either . ... As indicated above, I think there are too many deficiencies in the materials for me to conclude that the case is reviewable and the COD [cause of death] is not in my view supported by the evidence provided.

I don’t think one can confidently conclude sepsis as contributing to the death ...I do not have a firm view on an alternative cause of death... [60] [ 40 ] I point out that the lack of expertise in bone pathology was understood by the Child Injury Investigation Committee. In a letter to Dr. Jane Turner outlining the activities of the Committee, the Chair noted: An appropriate expert in both metabolic bone disease and the bony pathology of inflicted trauma could not be procured.

Thus, as a compromise all of the pathological and radiological evidence submitted as well as all reports were sent out of the jurisdiction to a team of three senior Forensic Pathologists at the Victorian Institute of Forensic Medicine in Melbourne, Australia for an independent assessment. All of the new reports were sent to Dr. Turner as well as the peer review committee. [61] [ 41 ] There is nothing in any of this which demonstrates any effort by Dr. Michael Pollanen to undermine the work of Dr. Jane Turner.

He is not a member of the Child Injury Investigation Committee but he has an interest, in fact a responsibility, to see that proper and responsible investigations are carried out. In the absence of any other party having been identified to provide a second opinion he was asked for his advice and provided it. While he was copied on some of the emails, there is no suggestion that he did anything to impose a result, particularly one different from that of Dr. Jane Turner. [ 42 ] What is disturbing about this is the assertion that Dr.

Jane Turner’s conclusion is left standing when the report delivered so clearly demonstrates that there were serious concerns with that finding. This demonstrates the failure of Dr. Jane Turner to understand the process. This is not a battle between two opposing views with her success measured by the application of that view, through the Court, resulting in a recommendation that Dr. Michael Pollanen be removed as Chief Forensic Pathologist. This is about examining the process of investigation to see if and how it can be improved.

That is what the 13 recommendations of the Death Investigation Oversight Council attempt to do. [ 43 ] On November 28, 2018 the Child Injury Investigation Committee met again. Dr. Jane Turner did not attend. [62] The differences of opinion remained. There was insufficient evidence to support the premise that death was caused by sepsis. The manner of death was undetermined. Following the review of the new material, the committee’s original opinion that the bone findings were not

representative of any form of metabolic bone disease remained unchanged. The bone pathologist, who was involved (the first opinion) acknowledged that further correlation with clinical and radiographic findings as well as biochemical test results was recommended. It was the opinion of the child abuse pediatrician that the twin brother, an infant, exhibited no evidence of metabolic bone disease and that the multiple fractures that were identified were supportive of inflicted trauma.

The consensus reached was that, at the very least, inflicted trauma could not be excluded as the underlying etiology for the bone lesions that had been observed. For some members of the Committee inflicted trauma represented the best explanation for those fractures . [63] [ 44 ] It was approximately three months later (March 4, 2019) that Dr. Jane Turner filed her initial complaint, an additional 9 months until the reporting letter of the Death Investigation Oversight Committee was delivered (December 9, 2019) and a further 6 months before this judicial review was commenced (June 2020).

This judicial review [ 45 ] The issue was not raised by either party but, to my mind, it is not clear that this matter is properly the subject of a judicial review. The Judicial Review Procedure Act section 2(1) states: 2

(1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: 1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. 2.

Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. [Emphasis added] [ 46 ] In the context of an advisory body making recommendations, there is no decision which affects the rights of anyone. There is no decision that has not been made, that should be compelled ( mandamus , which is only appropriate where there is no remaining discretion), no decision, the imposition of which, should be prohibited (prohibition ) and no decision that could be quashed ( certiorari ).

Recommendations may be implemented; they may not be. [ 47 ] A “statutory power” as referred to in paragraph 2 is defined in

section 1 of the Judicial Review Procedure Act as: “statutory power” means a power or right conferred by or under a statute, (

a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation, (

b) to exercise a statutory power of decision, (

c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing, (

d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party; (“compétence légale”) [ 48 ] It is at least arguable that following an investigation, where recommendations are made, they are not the subject of a statutory power, as defined and are not subject to judicial review. There are cases where issues of the process and procedure of coroners’ inquests have been challenged on judicial review. Maybe they could be applied here to demonstrate that the issues raised are properly subject to judicial review maybe they could not.

As the issue was not raised, and given the circumstances, this court has no option but to complete its consideration of this as an application for judicial review. If there is an issue it will have to be reserved for another day. [ 49 ] In any case, Dr. Jane Turner does not contest the recommendations that were made. Nonetheless, she wants the “reporting letter” set aside because of a recommendation that was not made: a recommendation to the Minister that Dr. Michael Pollanen be removed as the Chief Forensic Pathologist. In other words, Dr.

Jane Turner wants this complaint dealt with as an inquiry into the conduct of Dr. Michael Pollanen. This would treat circumstances such as this as a discipline proceeding. If it is, it means that a complaint from any person against the Chief Coroner or, as in this case against the Chief Forensic Pathologist, could result in a full-blown inquiry where the individual complained about would be required to defend himself or herself. Again, this process is dedicated to improving investigations not bringing down its leaders. Standard of review [ 50 ] The parties agree that the standard of review is reasonableness.

This is the presumptive or default standard for administrative decisions. [64] There is no reason to derogate from that presumption in this case. [65] Analysis [ 51 ] What ought to be immediately apparent is that the supposed absence of reasonableness is not directed at the recommendations that are the core of the reporting letter but at Dr. Michael Pollanen and the failure to recommend to the Minister that he be removed from office. The issues put on behalf of Dr. Jane Turner are: 1. Did the Death Investigation Oversight Council act unreasonably by failing to make any finding of fact in response to Dr. Jane

Turner’s complaint against Dr. Michael Pollanen? [66] 2. Did the Death Investigation Oversight Council act unreasonably in failing to determine if Dr. Turner’s complaint was substantiated ? [67] 3. Did the Death Investigation Oversight Committee act unreasonably by failing to take appropriate action to respond to a substantiated complaint against the Chief Forensic Pathologist beyond making recommendations? [68] [Underlining added] [ 52 ] That the overarching concern is the failure to address the allegations that Dr.

Michael Pollanen abused his authority is confirmed through a review of the orders being sought: 1. an order setting aside the “decision” of the Death Investigation Oversight Council 2. an order remitting the complaint back to the Death Investigation Oversight Council for its reconsideration, but only after Dr. Jane Turner is allowed to file new evidence, and 3. an order directing the Death Investigation Oversight Council, once its reconsideration is complete, to refer to Dr.

Pollanen’s superiors, the Deputy Solicitor-General and the Solicitor-General, any of the complaints which are more appropriately dealt with by them [69] [ 53 ] This position, adopted on behalf of Dr. Jane Turner, fails to grasp in a fundamental way the intent and means of the oversight provided under the Coroners Act . [ 54 ] In reviewing the reasonableness of the “decision”, the starting point is the administrative context in which the “reporting letter” was prepared. As is well-known the oversight provisions found in the Coroners Act are the result of complaints against Dr.

Charles Smith regarding his conduct in investigating cases, including strong biases in favour of child abuse as the cause of death as against other alternative explanations.

The concerns raised were the catalyst for an inquiry (colloquially the “Goudge Inquiry”) and the resulting Report into Pediatric Forensic Pathology in Ontario. [ 55 ] The report included recommendations to strengthen the oversight of pathologists including: • the appointment of a Chief Forensic Pathologist who is responsible for the Ontario Forensic Pathology Service and oversees all pathologists in Ontario, [70] • the creation of a registry controlled by the Chief Forensic Pathologist to ensure only qualified individuals conduct autopsies, [71] and • the establishment of a “governing council” to provide oversight of strategic planning and to administer a public complaints process. [72] [ 56 ] The Goudge inquiry recommended that the complaints process be remedial rather than punitive [73] and run concurrently with the complaints process of the College of Physicians and Surgeons. [74] The Goudge inquiry recommended that the Complaints Committee of the governing council or the deputy minister, where necessary, review complaints related to the Chief Forensic Pathologist. [75] Many of the recommendations made by the Goudge inquiry have been incorporated into the Coroners Act .

These include the creation of the Death Investigation Oversight Council. It is tasked with overseeing “the Chief Corner and Chief Forensic Pathologist by making recommendations to them . [76] [ 57 ] The complaints procedure found in the Coroners Act is decidedly different from and should not be equated to disciplinary tribunals that oversee many regulated professionals. It is this distinction that Dr. Jane Turner, and those who support her have failed to understand and account for.

The submissions being made suggest that the Death Investigation Oversight Council is required to make detailed factual findings, render a conclusion on compliance or violation of specific rules and recommend consequences for the subject of the complaint. There is no provision within the Coroners Act or any accompanying regulation that requires the Death Investigation Oversight Council or its Complaints Committee or for that matter the Child Injury Investigation Committee to hold oral hearings, weigh evidence or assess the credibility of witnesses.

It is those structures which allow for detailed findings and to provide the procedural safeguards that are necessary where a decision may have serious consequences for any individual. [ 58 ] The complaints process was intended to serve a different purpose. The core function of the complaint process is to make recommendations to improve the carrying out of investigations into death and injuries.

The Death Investigation Oversight Council is empowered to make recommendations (specifically to the Minister) as to “the appointment or dismissal of the Chief Forensic Pathologist” [77] but this is ancillary to the underlying concern for the efficacy of investigations and not central to the consideration of a complaint. The failure to find facts [ 59 ] The submissions made on behalf of Dr. Jane Turner propose that the Goudge Report, the amendments to the Coroners Act that respond to that report and the annual reports of the Death Investigation Oversight Council all demonstrate an obligation to “find facts”.

Recommendation 61 of the Goudge inquiry report states that the complaints process should be “transparent, responsive and timely”. [78] As submitted on behalf of Dr. Jane Turner, s. 8.4(6) of the Coroners Act should be interpreted to give effect to that recommendation. That

section directs that the complaints committee is to “review every complaint made about the Chief Coroner or the Chief Forensic Pathologist”. [79] Each of the Annual Reports of the Death Investigation Oversight Council from 2016 to 2019 indicates that “Upon completing their review, the Complaints Committee members will prepare a reporting letter, which details their findings.” [80] The problem with this is the same. It considers these sources as if they were functioning within a judicial or quasi judicial

forum like a discipline proceeding under legislation regulating a profession rather than a review directed to making recommendations to improve the investigation of death and injuries. A complaints process can be transparent and responsive without requiring that specific facts be proved. To the contrary, advisory bodies don’t necessarily rely on facts; recommendations may result from concern or speculation as to what could happen, not on what has happened. A “review” as referred to in s. 8.4(6) does not require a hearing and consideration of credibility to determine what happened.

It may canvas different perspectives and without choosing between them (accepting one in preference to another) provide guidance for the future. In referring to the word “findings” the submissions made on behalf of Dr. Jane Turner rely on the use of that word in the context of a legal proceeding. It refers to a succession of

definitions, each one from a legal dictionary [81] and fails to account for the fact that the context in which the word is being used is different. The Annual Report of the Death Investigation Oversight Council for 2020 removed this requirement. The failure to substantiate the complaint [ 60 ] What follows from this is that there is no requirement that the Death Investigation Oversight Council or its Complaints Committee make findings that establish or reject the proposition that Dr. Michael Pollanen abused his position or authority.

The issue is how his actions contributed to the investigation and whether there were recommendations as to how his involvement could better assist in providing a proper, efficacious and transparent process of investigation. [ 61 ] The Factum filed on behalf of Dr. Jane Turner lists evidence that, it is submitted, was not accounted for by the Death Investigation Oversight Committee which is said to support her allegations (substantiate her complaint) that Dr.

Michael Pollanen abused his authority and acted unprofessionally. [82] In each case, as the review contained in these reasons demonstrates, there is evidence on which a contrary or reasonable alternative determination could be made, as follows: a. Dr. Michael Pollanen concluded the cause of death was child abuse after reviewing the bone slides for only 20 minutes and without reviewing other available evidence. There is evidence that he did not decide, following his review of the slides, that the cause of death was child abuse. His note to file indicated that in his view traumatic injury remained a consideration.

That’s why the matter was referred to the Child Injury Investigation Committee. None of the many professionals involved provided evidence that 20 minutes was insufficient time to interpret the bone slides. b. Dr. Michael Pollanen referred the death of the child to the Child Injury Investigation Committee even though it fell outside its jurisdiction. The fact that Dr. Jane Turner, as the applicable “forensic pathologist” would not, in any event, be prepared to change her opinion, even when confronted with the different determination of others is not enough to remove the concern that child abuse was involved.

Child abuse fell within the jurisdiction of the Child Injury Investigation Committee. c. Dr. Michael Pollanen appointed his deputy as the chair of the Child Injury Investigation Committee when he lacked authority to do so. There is evidence that the deputy was not appointed as the Chair for the purpose of carrying out the particular review. He was the Committee’s continuing Chair. There is nothing inherently wrong with the deputy of Dr. Michael Pollanen acting as the Chair for the purposes of this, or any other review. d.

Concerns with the work of the Child Injury Investigation Committee • the members provided opinions even though they lacked expertise in bone pathology ; • the Committee agreed to get a second opinion but one was never obtained; • the bone pathology was sent to the Victorian Institute of Forensic Medicine without consulting Dr. Jane Turner, (it has no bone pathologists on staff, they concluded that there were too many deficiencies such that the case was not reviewable and they did not disagree with Dr.

Turner’s conclusion that child abuse was not the cause of death); • the Committee concluded that child abuse was not excluded as the cause of death. Consistent with s. 8.2(1) of the Coroners Act members of the committee were appointed by the Chair. A bone specialist was involved. The opinion being sought was a second opinion. There is no suggestion that anyone gave opinions outside their area of expertise. Efforts were made to locate a second bone specialist without success. The Victorian Institute of Forensic Medicine was engaged. Dr.

Jane Turner was offered the opportunity to comment on its selection but declined to do so. The Victorian Institute of Forensic Medicine did not agree with Dr. Jane Turner. The report it delivered states that its people did not accept there was evidence of any underlying bone disease but also did not think there was sufficient evidence to conclude that the death was due to inflicted trauma. There was evidence on which the Child Injury Investigation Committee could reasonably determine not to rule out inflicted trauma and to refuse to accept the perspective of Dr. Jane Turner. e. Dr .

Michael Pollanen’s view of the cause of death • he wrote his own report concluding that inflicted injury could not be ruled out and the cause of death was undetermined; • he changed his position at the final case conference that the cause of death was child abuse. The first report was consistent with the view of the Child Injury Investigation Committee and not consistent with an effort to override Dr. Jane Turner. There is nothing wrong with his having changing his mind but, in this case, it is without importance because it happened at a case conference held after the complaint of Dr.

Jane Turner had been delivered.

Did the Committee fail to understand that its authority to make recommendations to improve the death investigation system included recommending the dismissal of the Chief Forensic Pathologist of Ontario [ 62 ] As has already been noted in these reasons, there is nothing to suggest that the Council or the Committee was unaware of the authority to make the recommendation, it just is not one that was made in these circumstances. Moreover, having reviewed the background to the complaint, there is nothing that would support such a recommendation, certainly nothing to suggest that the failure to do so was unreasonable.

The issue of dismissal was not raised before the Committee. This judicial review does not take issue with the recommendations that were made or that the justification for them cannot be understood from a review of the history of this investigation. By way of example, there are recommendations that address the underlying allegations of abuse of authority. These include the recommendation for an independent, external operational review of the office and for the establishment of random external reviews of the casework of the Chief Forensic Pathologist.

What the application seeks is a justification why a different recommendation was not made; that is a recommendation to the Minister that Dr. Michael Pollanen be dismissed. In a discipline matter, the reasonableness of a sanction that was imposed may be questioned. That is not the circumstance here.

In this case, there is no need to demonstrate that the decision not to make the recommendation being sought was reasonable. [ 63 ] The Coroners Act recognizes that there may be circumstances where there are others, including the College of Physicians and Surgeons of Ontario, better suited to deal with what has come to the Death Investigation Oversight Council as a complaint. [83] The Death Investigation Oversight Council was aware of the authority of the Complaints Committee to refer such a situation to others and that the allegations made against Dr.

Michael Pollanen would be better dealt with in that way: With respect to the allegations of bullying and/or workplace harassment, while the Committee can make recommendations pertaining to supporting a healthy and collaborative workplace environment, such concerns need to be referred to the employer of the person(s) [Dr. Huyer and Dr. Pollanen] who is subject to the complaint.

Pursuant to s. 8(4) of the [ Coroners Act ], we are of the opinion that the allegations of bullying and/or workplace harassment would be more appropriately dealt with by the Chiefs’ superiors. [84] Conclusion [ 64 ] I return to where these reasons began. This judicial review was ill-considered and should never have been brought. It misunderstands the process provided under the legislation. The process is directed to advice, not discipline. The judicial review seeks to set aside the “decision” (the recommendations) in favour of attacking the actions and participation of Dr. Michael Pollanen.

The application stands as an impediment to the acceptance of the advice provided, preferring instead, to air a personal grievance pointed at Dr. Michael Pollanen because the investigation failed to accept the analysis of Dr. Jane Turner as to the cause of death. In doing this, it impugned the participation of virtually every professional involved, regardless of their expertise and the substance of their contribution. There is no requirement to provide a justification or reasons for a recommendation not being made.

There is no need to explain why there was no referral to the Minister recommending the dismissal of Dr. Michael Pollanen as the Chief Forensic Pathologist. As it is, the analysis of what took place makes clear that it was reasonable that such a recommendation was not made. There would be no point in re- evaluating this issue. Judicial review is a discretionary remedy. If it was required, I would exercise the court’s discretion and refuse to grant judicial review. Too much time has been taken and wasted by this unfortunate application. [ 65 ] For the reasons reviewed the application is dismissed.

Costs [ 66 ] No submissions were made as to costs. If the parties are unable to agree the court will consider written submissions to be loaded on to caselines: 1. on behalf of Dr.

Michael Pollanen, within 2 weeks of the issuance of these reasons, such submission to be no longer than 3 pages, double spaced not including any Cost Outline that may be included or cases that may be referred to; 2. on behalf of the Death Investigation Oversight Council within 2 weeks of the issuance of these reasons, such submission to be no longer than 2 pages, double spaced not including any Cost Outline that may be included or cases that may be referred to; and 3. on behalf of the Dr.

Jane Turner, within 1 week thereafter, such submission to be no longer than 4 pages, double spaced not including any Cost Outline that may be included or cases that may be referred to. _______________________________ Lederer, J. I agree _______________________________ McCarthy, J.

I agree _______________________________ Nishikawa, J. Released: May 8, 2023 CITATION : Turner v. Death Investigation Oversight Council, 2023 ONSC 2670 DIVISIONAL COURT FILE NO.: 175/20 DATE: 20230508 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Lederer, McCarthy and Nishikawa JJ. BETWEEN: DR. JANE TURNER Applicant – and – DEATH INVESTIGATION OVERSIGHT COUNCIL and DR. MICHAEL POLLANEN Respondents REASONS FOR JUDGMENT Lederer, J. Released: May 8, 2023