Christopher Diana

The Commissioner of the Ontario Provincial Police applied for judicial review of a decision by the Independent Police Review Director (IPRD) finding that two OPP officers committed discreditable conduct during a sexual assault investigation.

The IPRD had concluded that assigning an officer with a perceived association to a specific detachment created a potential conflict of interest.

The Divisional Court granted the application and set aside the IPRD's decision, finding it unreasonable because the IPRD applied a subjective standard based on the complainant's perception rather than the required objective standard of a reasonable member of the community.

The appellant police officer appealed a Hearing Officer's decision finding him guilty of misconduct and ordering his dismissal, as well as the decision to prospectively lift the automatic stay of penalty.

The officer had requested an adjournment for medical reasons, which was denied.

His counsel then withdrew, and the hearing proceeded in his absence.

The Ontario Civilian Police Commission found that while the adjournment was properly denied, proceeding in absentia without confirming the officer had notice or intended to retain new counsel was procedurally unfair.

The Commission also found the Hearing Officer erred in lifting the stay of penalty by failing to consider the merits of the appeal and the prejudice to the officer.

The findings of misconduct were quashed, a new hearing was ordered, and the stay of penalty was restored.

The applicants, police officers who took leaves of absence to serve as executives on the Ontario Provincial Police Association, sought an interim stay of a misconduct hearing pending their application for judicial review.

They argued the Adjudicator erred in finding they were still 'police officers' subject to discipline under the Police Services Act while on leave.

The Divisional Court dismissed the motion for a stay, finding that while there may be a serious issue to be tried, the applicants failed to establish irreparable harm and the balance of convenience favoured allowing the misconduct proceedings to continue without further delay.

The respondent was charged with speeding.

A justice of the peace ordered the prosecutor to disclose the entire user manual for the speed measuring radar device used by the police officer.

The Ontario Provincial Police brought an application for certiorari to quash the disclosure order, arguing a third party records hearing was required.

The Superior Court dismissed the application, finding that while the justice of the peace erred by not making a specific finding that the manual was first party disclosure, there was no substantial wrong or miscarriage of justice because the entire manual (except for one section on legal requirements) was obviously relevant and constituted first party disclosure.

Two consolidated appeals concerning the scope of a judge's jurisdiction under section 36(2) of the Children's Law Reform Act to direct a police force to enforce a child custody and access order.

The motion judge ordered the Ontario Provincial Police to enforce a custody and access order in place of the Waterloo Regional Police Service due to an inherent conflict of interest arising from the father's membership in the WRPS and allegations that the WRPS had inappropriately intervened to further the father's interests.

The appellants argued the motion judge lacked authority to impose such an obligation and that only the Ontario Civilian Police Commission could determine whether a municipal police force had failed to provide adequate policing.

The Court of Appeal dismissed the appeals, holding that section 36(2) permits a judge to specify any police force having jurisdiction in the area where the child may be found, and that in exceptional circumstances such as this, a judge may order the OPP to assist where the municipal police force cannot act due to a conflict of interest.

Hydro One appealed an application judge's decision declining to grant a general declaration that the Ontario Provincial Police must produce accident reports containing driver and owner information to parties who suffer property loss in motor vehicle accidents.

Hydro One argued that while section 200(1) of the Highway Traffic Act requires drivers to provide such information on request, this provision is unavailable when only property loss occurs and no representative is present at the scene.

The Court of Appeal quashed the appeal, finding that although it may have had jurisdiction, it was not appropriate to take jurisdiction due to the absence of an active lis, lack of necessary factual record, and absence of interested parties including the Privacy Commissioner and Attorney General.

Hydro One appealed an order from the Superior Court of Justice seeking a declaration that the Ontario Provincial Police must provide accident reports containing personal information of drivers and vehicle owners when Hydro One's property is damaged in traffic accidents.

The OPP refused to provide such reports without a court order, citing the Freedom of Information and Protection of Privacy Act.

The Court of Appeal adjourned the appeal to receive written submissions on two jurisdictional issues: whether the court could make a declaration interpreting a statute under the Rules of Civil Procedure when there is no actual lis between the parties, and whether the court could make a declaration interpreting FIPPA provisions outside the context of a judicial review of a privacy commissioner's decision.

The applicant, an IT network administrator for the OPP, went on medical leave due to a mental disorder.

He alleged that his supervisor harassed him by demanding medical information on unreasonably short timelines and threatening to cut off his pay, and that the employer condoned this behaviour.

He also alleged reprisal and failure to accommodate his request to work remotely.

The Tribunal found that the supervisor's conduct amounted to harassment and the employer was liable for failing to address it.

However, the Tribunal dismissed the reprisal and failure to accommodate claims, finding no intent to reprise and that remote work would cause undue hardship given the essential duties of the applicant's position.

The Tribunal awarded $27,500 in damages for injury to dignity, feelings, and self-respect.

The applicant Commissioner of the OPP sought judicial review to quash an order by the respondent Independent Police Review Director requiring a misconduct hearing for an OPP officer.

The officer was charged with neglect of duty for failing to disclose in an Information to Obtain (ITO) and during testimony before a Legislative Committee the reason why a suspect refused to provide a statement.

The Divisional Court granted the application and quashed the order, finding that the officer's conduct could not possibly constitute neglect of duty.

The court held there is no duty to include irrelevant information in an ITO, and the officer answered the Committee's questions truthfully without a duty to volunteer extraneous information.

The applicant, an OPP officer facing workplace misconduct proceedings, brought an application for judicial review seeking to quash or stay the proceedings.

He argued that the disciplinary process under the Police Services Act violated his rights under sections 7 and 11 of the Charter by failing to provide an independent and unbiased tribunal.

The Divisional Court dismissed the application, finding that section 11 applies only to criminal matters, not employment discipline, and that section 7 is not engaged because there is no constitutional right to practice a profession unfettered by regulatory rules.

The court also declined to order the police association to fund the applicant's legal counsel.

The applicant, an OPP officer facing disciplinary proceedings under Part V of the Police Services Act, sought a stay of those proceedings pending his application for judicial review.

In his judicial review application, the applicant challenged the constitutionality of the disciplinary process, arguing it violated his rights under section 7 of the Charter and procedural fairness.

Applying the RJR-MacDonald test, the court found there was a serious issue to be tried, the applicant could suffer irreparable reputational harm if the hearing proceeded, and the balance of convenience favoured a short stay given the imminent judicial review hearing.

The motion for a stay was granted.

The appellants, charged with drug offences, sought disclosure of police policy directives regarding confidential informants during their preliminary inquiry.

After the Crown refused disclosure, the preliminary inquiry judge issued subpoenas duces tecum to the police chiefs.

A Superior Court judge quashed the subpoenas, finding the preliminary inquiry judge lacked jurisdiction to order what amounted to third-party disclosure.

The appellants appealed.

Although the appeal was moot because the appellants had since pleaded guilty, the Court of Appeal exercised its discretion to hear it.

The Court dismissed the appeal, holding that a preliminary inquiry judge cannot use a subpoena duces tecum to circumvent the jurisdictional limits on ordering production of third-party records, which must be sought before a trial judge under the O'Connor regime.

The Appellant, an off-duty police officer, removed mulch from a school property without permission and subsequently misled the investigating officer.

He was found guilty of discreditable conduct and demoted from First Class Constable to Second Class Constable for one year.

He appealed the finding of guilt and the penalty to the Ontario Civilian Police Commission.

The Commission dismissed the appeal, finding that the Hearing Officer's decisions on credibility, admission of hearsay evidence, and penalty were reasonable and supported by clear and cogent evidence.

The applicant requested reconsideration of a Tribunal decision that dismissed his human rights application as abandoned.

The applicant, an inmate, explained that his failure to communicate with the Tribunal and comply with disclosure deadlines was due to his transfer to a new penitentiary where he was held in segregation without access to funds or communication tools.

The Tribunal accepted the applicant's explanation, finding that he did not intend to abandon his application and that other factors outweighed the public interest in the finality of Tribunal decisions.

The request for reconsideration was granted and a new hearing date was ordered.

The applicant, a First Nations constable, sought judicial review of a Human Rights Tribunal decision dismissing his complaint that his suspension and termination by the OPP Commissioner were discriminatory and acts of reprisal.

The applicant had been terminated after making public comments criticizing the OPP.

The Divisional Court upheld the Tribunal's findings that the exclusion of First Nations constables from the procedural protections of the Police Services Act was not discriminatory, but rather respected First Nations self-government.

The Court also upheld the finding that the termination was not a reprisal under the Human Rights Code, as the applicant's public comments were not an assertion of human rights.

A related application by the First Nation Council alleging a denial of natural justice was also dismissed.

The appellant, an off-duty police officer, consumed alcohol and a sleeping pill before driving his personal vehicle, rear-ending another vehicle, and failing to remain at the scene.

He was subsequently arrested for impaired driving and pleaded guilty to a Highway Traffic Act charge of failing to remain, as well as a disciplinary charge of discreditable conduct.

The Hearing Officer imposed a penalty of demotion from First Class Constable to Second Class Constable for 16 months.

The appellant appealed the penalty, arguing it was harsh and excessive.

The Ontario Civilian Police Commission dismissed the appeal, finding that the Hearing Officer properly weighed the aggravating and mitigating factors, including the serious nature of the misconduct and the need for deterrence, and that the penalty was reasonable.

The applicant sought to declare the respondent a vexatious litigant.

The respondent, who has physical disabilities, requested that the application be transferred from Toronto to the Central West region to accommodate her needs.

The court granted the transfer to Milton in the interests of justice, noting the respondent's accessibility issues.

Pending the hearing of the application, the court ordered that the respondent must seek leave before commencing any new proceeding or taking further steps in existing proceedings, in both her personal capacity and as an estate trustee.

Police services applied to quash subpoenas duces tecum issued by a preliminary inquiry judge compelling production of police policy directives governing confidential informants.

The subpoenas were issued after the Crown had refused defence disclosure requests for the documents on grounds of irrelevance and informer privilege.

The Superior Court held that a preliminary inquiry judge lacks jurisdiction to determine disclosure applications, whether framed as first-party disclosure under Stinchcombe/McNeil or third-party production under O'Connor.

By issuing subpoenas that effectively compelled production of materials the Crown had declined to disclose and which were arguably held by third parties, the preliminary inquiry judge exceeded his jurisdiction.

The subpoenas were therefore quashed.

The applicant requested a reconsideration of a previous Tribunal decision that dismissed her human rights application for delay.

The applicant argued that the decision failed to accurately reflect the facts and her disability, and that it absolved employers of their duty to accommodate.

The Tribunal found that the applicant was attempting to re-argue her case and did not establish any new facts, conflict with established jurisprudence, or matters of public importance.

The request for reconsideration was denied.

The applicant, a former OPP officer, filed a human rights application alleging discrimination based on ancestry, disability, sex, and association.

The respondent requested the application be dismissed for delay, as the events occurred between 1998 and 2003, and the application was filed in 2011.

The applicant argued the delay was justified because she only discovered the respondent's re-employment policy in 2008 and had been pursuing a civil action.

The Tribunal found that the applicant believed she had been discriminated against long before 2008 and that her disability did not prevent her from filing in a timely manner, as she had pursued other legal claims.

The application was dismissed for delay.