Staff Inspector Edward Hegney v. Metropolitan Toronto Police Service, 1998 CanLII 27139

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended

BETWEEN:

STAFF INSPECTOR EDWARD HEGNEY

Appellant

-and-

METROPOLITAN TORONTO POLICE SERVICE

Respondentt

DECISION

Panel: Murray W. Chitra, Chair

Karl R. Fuller, Member

Hearing Date: Monday, January 12, 1998

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, Ontario M7A 2T3

Tel: 416-314-3004

Fax: 416-314-0198

Website: www.ocpc.ca

Presiding Members

Murray W. Chitra, Chair

Karl R. Fuller, Member

Appearances

Amani Oakley, Agent for the Appellant

George S. Monteith, Counsel for the Respondent

Hearing Date: Monday, January 12, 1998

1. This is a motion brought pursuant to the former section 68 of the Police Services Act, R.S.O. 1990, c. P.15 as amended (the “Act”) by Staff Inspector Hegney to extend the 30 day period provided for filing an appeal under the former section 63(8) of the Act.

Background

2. On July 24, 1995 Staff Inspector Hegney was charged with the disciplinary offence of Neglect of Duty contrary to section 1(c) of the Code of Conduct contained in Ontario Regulation 927, R.R.O. 1990, as amended (the “Code”). This charge related to a work stoppage which occurred at 51 Division on January 26, 1995. At that time Staff Inspector Hegney was Unit Commander.

3. On August 29, 1995 Staff Inspector Hegney was also charged with the disciplinary offence of Insubordination contrary to section 1(b)(ii) of the Code. This charge related to Staff Inspector Hegney’s attendance at a press conference held at Metropolitan Toronto Police Headquarters on July 24, 1995 after receiving an order to return to his office in Scarborough.

4. Both charges were heard by Superintendent Robert Fitches of the Ontario Provincial Police (the “Hearing Officer”). On March 29, 1996 after several days of testimony and arguments, the Hearing Officer found Staff Inspector Hegney not guilty of the first charge of Neglect of Duty. However, he did find Staff Inspector Hegney guilty of the second charge of Insubordination. A penalty of reprimand was imposed.

5. On April 8, 1996 Staff Inspector Hegney filed a Notice of Appeal with the Metropolitan Toronto Police Services Board (the “Board”). This appeal was filed within the 15 day time limit contemplated by the former section 63(1) of the Act. The Notice of Appeal requested that the finding of Insubordination be quashed or a new hearing ordered.

6. The appeal, along with a request to introduce additional evidence, was heard by the Board on December 10, 1996. On December 12, 1996 Staff Inspector Hegney received a letter and copy of a minute from the Board advising him that both his request to introduce new evidence and the appeal had been denied.

7. On June 26, 1997 the Ontario Civilian Commission on Police Services (the “Commission”) received a Notice of Appeal from Staff Inspector Hegney relating to the Board’s decision. This appeal was not filed within the 30 day time limit contemplated by the former section 63(8) of the Act.

8. On July 11, 1997 the Commission received a Notice of Motion from the agent for Staff Inspector Hegney under the former section 68 of the Act requesting extension of the time to file the appeal.

9. After consultation with the agent for the Appellant and counsel for the Respondent the Commission scheduled the motion to be heard on January 12, 1998. This was confirmed in writing with both parties on November 14, 1997.

10. In the meanwhile, on November 27, 1997 Bill 105 was proclaimed into law. This had the effect of amending the Act. This included repealing section 68, the provision upon which this motion was initially based.

The Law

11. Until recently, section 63(8) of the Act read:

The police officer may appeal to the Commission from the board’s decision by serving notice of appeal on the Commission, the board and the chief of police within thirty days of receiving notice of the decision.

12. As well, section 68 provided:

The … Commission may grant an extension of the time provided for giving it a notice of appeal, before or after the expiry of the time, and may give directions in connection with the extension.

13. These sections were repealed with the proclamation of section 35 of the Police Services Amendment Act, 1997, S.O. 1997, c. 8 on November 27, 1997.

14. Under the new disciplinary scheme set out in Part V of the Act police services boards are no longer responsible for hearing appeals from disciplinary decisions concerning police officers. Such appeals are now made directly to the Commission. A new section 70(1) of the Act reads that:

A police officer … may, within 30 days of receiving notice of the decision made after a hearing … , appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.

15. No provision is made in the revised Part V to permit the Commission to grant an extension of time for the filing of such an appeal.

16. The modified Part V contains provisions dealing with transitional cases. Specifically, sections 79(4) and (5) read:

(4) As of January 1, 1998, all outstanding disciplinary matters that commenced before the coming into force of this section … , shall be taken up and continued under Part V so far as consistently may be.

(5) Despite subsection (4), a hearing that commenced but is not concluded before January 1, 1998 under Part V … of the Act, as it read immediately before its repeal by section 35 of the Police Services Amendment Act, 1997, may proceed to its conclusion after January 1, 1998 and Part V … of the Act … , as it read immediately before its repeal, continues to apply to the hearing and the powers of the chief of police, board, Commission or board of inquiry at the conclusion of the hearing.

The Issues

17. This motion presents two questions. They are as follows:

1.Given the amendments to the Act, does the Commission have the authority to consider a request for an extension of time for the filing of an appeal in this case?

2.Assuming that such authority exists, do the circumstances of this application warrant such an extension?

Appellant’s Position

18. Ms. Oakley, on behalf of the Appellant, argues that notwithstanding the repeal of section 68, the Commission has the authority to grant an extension of time for filing an appeal.

19. She asserts that the ability to request such an extension is in the nature of a substantive right that was vested or accrued to the Appellant and which cannot be removed except in the face of clear and express language. She argues that the revisions do not contain such language and points out that section 79(4) provides that outstanding disciplinary matters are to be proceeded with under the new Part V only “so far as consistently may be”.

20. In support of this position Ms. Oakley draws our attention to section 14(2)(b) of the Interpretation Act, R.S.O. 1990, c. I.11 as amended, Re Stern and Kish (1977), 1976 CanLII 561 (ON HCJ), 14 O.R. (2d) 470 (Ont. Div. Ct.), Wilson et al. v. Armitage (1982), 1982 CanLII 2104 (ON CA), 37 O.R. (2d) 407 (Ont. C.A.), and part 12.23(f) of Macaulay and Sprague, “Practice and Procedure Before Administrative Tribunals”, vol. 2 (Toronto: Carswell).

21. In the alternative, Ms. Oakley argues that the Commission retains an “inherent” or “residual” discretionary power to grant an extension in those cases where justice or public interest so requires. On this point, she cites Sinclair v. Ridout and Moran [1955], O.W.N. 633 (Ont. C.A.) and Stanford v. Harris (1989), 38 Admin. L.R. 141 (Ont. Div. Ct).

22. On the second question, Ms. Oakley suggests that whether we exercise an inherent authority or act under the former section 68 that we must be satisfied that three conditions have been met before we grant any extension. They are:

23. that it is at least arguable that the judgment complained of is wrong; and

24. that the Appellant had a bona fide intention to appeal while the right of appeal existed; and

25. that the Appellant had a reasonable excuse for his delay in not having launched the appeal within the prescribed time.

26. For this proposition, she cites Thibodeau v. Prince Edward Island (Human Rights Commission) (1993), 1993 CanLII 16288 (PE SCTD), 23 Admin. L.R. (2d) 194 (P.E.I. S.C.) and Martin v. McKay (1987), 28 C.P.C. (2d) 310 (N.S. S.C.).

27. With respect to the first point, Ms. Oakley asserts there are valid reasons to argue that the decision of the Hearing Officer was wrong. She suggests that no investigation into the allegation of Insubordination was conducted and that this represents a failure to meet a mandatory precondition to a disciplinary charge. On this point she cites section 58(1) of the Act, P. Ceyssens, “Legal Aspects of Policing” (Toronto: Earlscourt Press), pp. 5-28 to 5-29 and Macaulay and Sprague, “Practice and Procedure Before Administrative Tribunals”, vol. 3 (Toronto: Carswell) p. 28-25.

28. She argues that the order in question was not lawful. Ms. Oakley asserts that even if the order was proper the Appellant had a lawful excuse for not obeying it. She argues that there was no evidence before the Hearing Officer with respect to either issue or a number of key findings of fact relating to the order. In any event, she asserts that the onus of proof (i.e., clear and convincing evidence) was not met in this case.

29. In support of these various arguments, Ms. Oakley brings to our attention several cases. They include Thompson v. Town of Oakville, 1963 CanLII 254 (ON HCJ), [1964] 1 O.R. 122 (Ont. H.C.), Packer and Metropolitan Toronto Police (1990), 2 O.P.R. 858 (O.P.C.), Metropolitan Toronto Commissioners of Police v. Metropolitan Toronto Police Association (1974), 1974 CanLII 702 (ON HCJDC), 50 D.L.R. 173 (Ont. Div. Ct.), McDonald v. Canadian Employment and Immigration Commission (1991), 1991 CanLII 8270 (FCA), 50 Admin. L.R. 258 (F.C.A.), Tomie-Gallant v. Ontario (Attorney General) (1996), 1996 CanLII 12477 (ON CTGDDC), 139 D.L.R. (4th) 149 (Ont. Gen. Div.), Weise and Ontario Provincial Police (1982), 2 O.P.R. 526 (O.P.C.), Poundman v. Dayman (1941), 67 C.L.R. 536, Perry and York Regional Police (1972), 1 O.P.R. 89 (O.P.C.) and Re Keeprite Workers’ Independent Union and Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (Ont. C.A.).

30. With respect to the second point Ms. Oakley provides us with three letters from the Appellant’s solicitors dated April 25, May 1, and June 21, 1996. This correspondence would appear to relate primarily to the initial appeal. However, they are accompanied by an affidavit from the Appellant which states that it “has always been my intention to pursue the appeal of the finding of insubordination as far as necessary to restore my professional credibility”

31. The same affidavit is offered in support of the third issue of reasonable excuse. The Appellant states that he did not file his appeal to the Commission because he did not believe that he could do so until either reasons or a transcript from the December 10th Board decision were produced. He assumed that his solicitors were doing the same and would inform him of any new developments. He states that once he discovered that he was labouring under a misunderstanding, he immediately filed his appeal. Ms. Oakley cites Buchanan and Hamilton-Wentworth Regional Police (1978), 1 O.P.R. 377 (O.P.C.).

32. For the above reasons, she argues that the three aspects of the test have been met and we should grant the motion. She states that given the media interest in the events in question and the effect on the Appellant's reputation, there is a compelling public interest in so doing.

Respondent’s Position

30. In response, Mr. Monteith argues that we have no authority to consider a request for an extension of time.

31. He points out that Bill 105 repealed all of Part V of the Act, including section 68 which gave the Commission the authority to grant such relief. He notes that the new provisions contain no such power. He draws our attention to other sections in the new legislation dealing with the processing of the reviews of public complaints which permit extensions of time. He suggests that if the Legislature had wished to allow similar indulgences in the filing of appeals, it would have specifically provided for such relief.

32. He argues that the motion before us does not deal with “substantive” rights. By that, we take him to mean that while a properly filed appeal might, in certain cases, fall into such a category, a preliminary motion for an extension does not.

33. He states that while the new Part V has transitional provisions, they only serve to preserve the old rules for hearings that commenced before January 1, 1998. He points out that this is not the situation in this case.

34. Mr. Monteith also takes issue with the notion that the Commission has a “residual” or “inherent” jurisdiction. He states that as a statutory body, we only have those powers accorded to us by the Legislature.

35. Assuming a power does exist to consider an extension, Mr. Monteith argues that such relief is not warranted in this case. He states that the Appellant was on duty, received a clear lawful order, understood what was required of him and chose to disobey. He argues that there is no evidence to suggest that a proper investigation was not conducted. Further, he suggests that the Appellant’s failure to raise these issues at the initial hearing, present evidence to the contrary, or testify himself, foreclose the raising of the issues at this late date.

36. As to the question of intention to appeal, Mr. Monteith suggests that it is not enough for the Appellant to merely assert an ongoing desire to do so. He states that more is required. This should include due diligence frustrated by some factor beyond the Appellant’s control (i.e solicitor’s error). He suggests that neither is present in this case.

37. Finally, he asserts that the Appellant is an experienced and knowledgeable police officer who has no reasonable excuse for the lengthy delay in question. He draws our attention to Vetere and Metropolitan Toronto Police (1990), 2 O.P.R. 889 (O.C.C.P.S.).

Decision

38. Decision

39. On July 11, 1997 Staff Inspector Hegney filed a motion for extension of time to bring his appeal. On that date, the Act provided him with a clear right to do so. On November 14, 1997 the motion hearing date was scheduled. Staff Inspector Hegney had taken all of the practical steps available to him to assert, personalize and vest his right.

40. However, Bill 105 was proclaimed on November 27, 1997. His motion was not scheduled to take place until after January 1, 1998. Accordingly, he is unable to bring himself within the saving provisions of section 79(5) of the new Part V.

41. Given that his motion clearly relates to a disciplinary matter, at first glance his situation would appear to fall under the transitional provision found at the new section 79(4). It provides that “As of January 1, 1998 all outstanding disciplinary matters commenced before the coming into force of this section … , shall be taken up and continued under Part V so far as consistently may be.”

42. However, given the repeal of section 68 and the lack of any authority under the new scheme to grant an extension of time to file an appeal, consistency under the new disciplinary scheme is not possible. The case at hand does not appear to be clearly resolved by section 79(4).

43. It is our view, given this ambiguity and the accrued and personalized nature of the right in question, the proper course is to both hear and determine the motion on the basis of the law which existed at the date of its filing. We believe this to be consistent with the presumption that vested rights are not to be interfered with except in the presence of clear statutory language which allows no other inference.

44. Accordingly, our answer to the first question raised by this motion is that we have the authority to consider Staff Inspector Hegney’s request for an extension of time to his appeal.

45. The second question to be considered is whether or not the circumstances of this application warrant such relief. The former section 68 of the Act authorized the Commission to grant such an extension, but did not enumerate the factors to be considered. We agree however, with the Appellant, that relevant concerns included, whether or not:

46. • 8 -

47. • there is some merit or arguable grounds to the appeal; and

48. • there was a bona fide intention to appeal while such right existed; and

49. • there was a reasonable excuse for delay in launching the appeal within the prescribed time.

50. Other pertinent considerations would be the length of the delay, the seriousness of the penalty, and the potential prejudice to the Respondent.

51. Without wishing to be seen to be making a comment one way or another on the facts, we are satisfied that the Appellant has some arguable grounds for appeal. However, we have some difficulty with both the question of intention and the reasonableness of the excuse offered.

52. We have been referred to three letters from the Appellant’s solicitors as evidence of a clear intention to file an appeal. All three letters predate the initial appeal to the Board and appear to relate solely to that matter. An intention to appeal to the Board does not demonstrate a settled intention to appeal any further.

53. The Appellant asserts in an affidavit that it has always been his plan to pursue the appeal “as far as necessary”. This however, must be assessed against the steps taken and the reasonableness of the excuse offered.

54. On December 12, 1996 the Appellant was sent both a letter and a copy of an endorsed Board minute relating to his appeal. The minute read in part:

THAT the Board, after hearing arguments from both counsel, denies the request to introduce new evidence on the basis of case law, due diligence and fairness … .

THAT, on the basis that Staff Inspector Edward Hegney disobeyed a lawful order, the Board upholds the decision of the Trials Officer, Superintendent Robert Fitches, made on March 29, 1996 regarding the finding of guilt against Staff Inspector Hegney on a charge of insubordination and dismisses the appeal.

55. In our view, this is clearly “notice of the decision” within the meaning of former section 63(8) of the Act.

56. Staff Inspector Hegney asserts that he did not file an appeal within the required 30 days of this Notice because he was preoccupied with other proceedings related to his situation and was awaiting either the release of reasons or a transcript.

57. It seems relevant to us that the Appellant had available to him, at both his initial disciplinary hearing and appeal, the benefit of experienced legal counsel. The appeal to the Board was filed well within the fifteen day time limit set out in the Act. Indeed, the time limit for appeals to the Commission is found in the exact same section.

58. There is no suggestion in this case, as in Buchanan and Hamilton-Wentworth Regional Police, supra and Funnell v. Calder (Ont. Bd. Inq., 6 May 1994), of solicitor’s error. Any delay in filing the Notice of Appeal would appear to be solely attributable to the Appellant himself.

59. Staff Inspector Hegney is a very experienced police officer with over 30 years service. This has included significant command experience which by necessity would entail responsibility for disciplinary matters potentially affecting hundreds of officers. This requires a sound understanding of the disciplinary process prescribed by law or at least knowledge of where to seek information if any questions arose.

60. Leaving this aside, there are two other matters worth noting. First, the delay in this case is substantial. It is not merely a matter of a few days - it is several months. Second, the penalty at issue is a reprimand. This is the lightest sanction available to the Hearing Officer. While any penalty is of concern to the Appellant, the fact remains that this is not a situation where an officer’s employment or rank is at issue.

61. Appeal periods exist in legislative schemes for a purpose: to ensure that in the normal course disciplinary matters are dealt with in an expeditious and orderly manner. While former section 68 of the Act gives us the authority to abridge the time for the filing of appeals in appropriate circumstances, we are not satisfied that such appropriate circumstances exist in this case.

62. Accordingly, for the reasons set out above, the motion is denied.

DATED THIS 29TH DAY OF JANUARY, 1998.

Murray W. Chitra Karl R. Fuller Chair, OCCPS Member, OCCPS