ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
CADET JOHN J. FARRELL
Appellant
-and-
DURHAM REGIONAL POLICE SERVICE
Respondent
DECISION
Panel: G. Douglas Smith, Member Benson Lau, M.D., Member
Hearing Date: Wednesday, January 27, 1999
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:
G. Douglas Smith, Member
Benson Lau, M.D., Member
Appearances:
Gary L. Clewley, Counsel for the Appellant
Staff Inspector Brian Fazackerley, Counsel for the Respondent
Hearing Date: Wednesday, January 27, 1999
1. This is a motion brought on behalf of the Respondent to quash the Notice of Appeal filed by the Appellant on July 31, 1998, in which the Appellant sought:
- To appeal the findings made on December 17, 1998 by the Durham Regional Police Services Board (the “Board”) following a hearing on December 8, 9, and 12, 1997.
2. To request an extension of time within which to bring the appeal.
Background
2. John J. Farrell was hired by the Durham Regional Police Service (the “Service”) on September 8, 1997. He was appointed a Cadet First Class by the Chief of Police with the approval of the Board pursuant to section 51 of the Police Services Act, R.S.O. 1990, c. P.15 as amended (the "Act") for the purpose of undergoing training to become a police officer.
3. Cadet Farrell commenced his initial period of training at the Ontario Police College on September 10, 1997. He was sent home by a senior police officer after an investigation substantiated complaints of misconduct made against him for conduct while at the College.
4. On December 8, 9 and 12, 1997, a two member panel of the Board heard evidence on the allegations of misconduct and terminated Cadet Farrell's employment effective December 17, 1997.
The Issues
5. The motion before us presents two issues:
Does the Notice of Appeal disclose essential elements giving rise to the Commission's appellate jurisdiction pursuant to the Act?
Does the Commission have the authority to consider a request for an extension of time for filing of an appeal beyond the 30 day period set out in section 70 of the Act?
Appellant's Position
6. Mr. Clewley, on behalf of the Appellant, argued that the Commission does have the jurisdiction to hear the appeal of Cadet Farrell. He referred the Commission to sections 22(1)(e) and (f) of the Act. He further argued that the definition of "police officer" in section 2 of the Act does not clearly exclude cadets and therefore a cadet should be considered a police officer for the purposes of the Act.
7. It was further argued that denial of Cadet Farrell standing before the Commission on appeal would not only diminish the rights available to police officers but would also deny him remedies available to public complainants under Part V of the Act.
Respondent's Position
8. Inspector Fazackerley, on behalf of the Respondent, argued that Cadet Farrell is not a police officer within the meaning of section 2 of the Act and as a result the Commission has no jurisdiction to hear his appeal pursuant to Part V of the Act. He further argued that there is no statutory authority authorizing the Commission to hear an appeal for the termination of employment of a member of a police force who is not a police officer either under Part V or elsewhere in the Act.
9. He stated that there never was a hearing in this case by a chief of police under Part V of the Act and consequently there was no right of appeal. Inspector Fazackerley submitted that even if we found Cadet Farrell to be a police officer within the meaning of section 2 of the Act that his appeal must fail on the following grounds:
He was hired on probation and as such his termination cannot be subject to Part V of the Act.
The Notice of Appeal was not served within 30 days of the decision as required by section 70(1) of the Act and as such must fail as the Commission has no authority to extend the time for appeal.
Decision
10. We are satisfied, based on the evidence presented before us, that Cadet Farrell was appointed as a police cadet pursuant to section 51 of the Act.
11. The Act has clearly distinguished the process for appointing police officers from cadets. Section 51(1) of the Act reads as follows:
With the board's approval, a municipal chief of police may appoint persons as police cadets to undergo training.
12. Police officers are only appointed by the Board. Further, their appointment is subject to specific criteria set out in section 43 and a probationary period defined in section 44. As such, we find that while Cadet Farrell may be a member of the Service, he is not a police officer as defined in section 2 of the Act.
13. The right to appeal disciplinary decisions under Part V of the Act is limited by section 70(1) to either police officers or complainants. Cadet Farrell is neither. As a result we find that he is not subject to the provisions of Part V of the Act and as such the Commission has no authority to hear his appeal pursuant to section 70 of the Act.
14. We are also satisfied that we do not have the authority to hear Cadet Farrell's appeal upon the following two additional grounds. First, the Commission has no jurisdiction pursuant to section 70 of the Act to grant an extension of time for filing an appeal. Prior to November 27, 1997 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 the decision.
15. 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.
16. 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.
17. Section 70(1) of the present Act now 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 motion stating the grounds on which the appeal is based.
18. No provision is made in the revised Part V of the Act to permit the Commission to grant an extension of time for the filing of an appeal. In the present case it is noted that the decision to terminate Cadet Farrell's employment was made on December 17, 1997, and his appeal was not filed until July 31, 1998. This was several months outside of the 30 day appeal period required under section 70.
19. Second, Cadet Farrell was hired on probation and as a result even if we are in error and he is a police officer within the meaning of the Act, his employment can only be terminated under section 44(3) of the Act. Section 44(3) of the Act reads as follows:
A board may terminate a police officer's employment at any time during his or her probationary period but, before doing so, shall give the police officer reasonable information with respect to the reasons for terminating and an opportunity to reply, orally or in writing, as the board may determine.
20. The question then arises whether the Appellant has the right of appeal under sections 22(1)(e) or (f) of the Act as suggested by Mr. Clewley. Sections 22(1)(e) and (f) of the Act reads as follows:
22(1) The Commission's powers and duties include…
(e) conducting inquiries, on its own motion in respect of a complaint or complaints made about the policies of or services provided by a police force or about the conduct of a police officer and the disposition of such complaint or complaints by a chief of police or board;
(f) hearing and disposing of appeals by members of police forces and complaints in accordance with Part V.
21. Section 22(1)(e) clearly outlines the authority for the Commission on its own motion to conduct the inquiries as set out therein. The matter before the Commission in the present case is clearly not by way of an inquiry initiated by the Commission but is an appeal initiated by Cadet Farrell. Consequently section 22(1)(e) does not provide Cadet Farrell the grounds to file an appeal and has no application in this matter.
22. Section 22(1)(f) deals with appeals to be heard by this Commission under Part V of the Act. For the reasons set out above we have concluded that Cadet Farrell is not a police officer within the meaning of section 2 of the Act and as a result does not have the right of appeal as set out in Part V.
23. For these reasons the motion is allowed and the appeal of Cadet Farrell is quashed.
DATED THIS 11TH DAY OF FEBRUARY, 1999.
G. Douglas Smith Member, OCCPS
Benson Lau Member, OCCPS