Benson Cowan

The appellant police officer was dismissed for unsatisfactory work performance after a hearing officer found the police service's ad hoc performance evaluation procedures were sufficient despite deviating from mandatory policies.

The Ontario Civilian Police Commission allowed the officer's appeal, finding the strict application of the performance review policies was a mandatory precondition under O. Reg. 268/10.

The Divisional Court set aside the Commission's decision on judicial review.

The Court of Appeal allowed the officer's appeal and restored the Commission's decision, holding that the Commission's interpretation of the regulation was reasonable and entitled to deference.

The appellant police officer was found guilty of misconduct under the Police Services Act.

The hearing officer, the Ontario Civilian Police Commission, and the Divisional Court all applied a balance of probabilities standard of proof.

On appeal, the Court of Appeal held that it was bound by the Supreme Court of Canada's decision in Penner, which established that the standard of proof in PSA hearings is a higher standard of 'clear and convincing evidence', not a balance of probabilities.

The appeal was granted and the matter remitted to the Commission.