Memis Sipar v. Detective John Schertzer et al., 2000 CanLII 45062

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

MEMIS SIPAR

Applicant

-and-

DETECTIVE JOHN SCHERTZER, DETECTIVE NED MAODUS, DETECTIVE CONSTABLE JONATHAN REID, DECTECTIVE CONSTABLE GREGORY FORESTALL, DETECTIVE CONSTABLE JOSEPH MICHED AND DETECTIVE CONSTABLE STEVEN CORREIA

Respondents

-and-

CHIEF DAVID BOOTHBY

Intervenor

DECISION

Panel: Murray W. Chitra, Chair

G. Douglas Smith, Member

Michele J. Shephard, Member

Hearing Date: July 27, 1999 and January 27, 2000

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

Presiding Members:

Murray W. Chitra, Chair

G. Douglas Smith, Member

Appearances:

Moishe Reiter, Q.C., Counsel for the Applicant Harry G. Black, Q.C., Counsel for the Respondents George S. Monteith, Counsel for the Intervenor

Hearing Date: July 27, 1999 and January 27, 2000

1. This is an application for leave to appeal under section 70(4) of the Police Services Act, R.S.O. 1990, c. P.15 as amended (the “Act”).

Background:

2. On October 28, 1997, the Applicant and another man were arrested by members of the Toronto Police Service attached to the Central Field Command Drug Squad. The Applicant was held in custody for a number of hours at 53 Division. While there he was permitted to speak to his lawyer, Mr. Moishe Reiter, by telephone. However, a subsequent request for direct contact was denied.

3. The Applicant’s vehicle was seized. The car and three locations with which he was associated were searched. No drugs were found. The Applicant was released from custody the same day. No charges were brought against him.

4. On November 7, 1997, Mr. Reiter wrote a letter to Chief David Boothby concerning this incident. Subsequently, a Public Complaint Form (under former section 77 of the Act) was prepared.

5. An internal investigation was initiated. The specific allegations in question were that:

• the Applicant had been denied the opportunity

to speak personally to his lawyer; and

• his home had been searched without a warrant

being obtained

6. At the conclusion of the investigation disciplinary proceedings were initiated against the Respondents.

7. On October 2, 1998 Superintendent Terrence Kelly (the “Hearing Officer”) dismissed the charges against the Respondents. Essentially, this was based on a finding that the Notice of Hearing had not been served on the officers within six months of the original allegations coming to the attention of the Chief as required by section 69(18) of the Act.

8. On November 10, 1998 Mr. Reiter filed a “formal notice of appeal” of this decision with the Ontario Civilian Commission on Police Services (the “Commission”).

9. The relevant sections of the Act are 70(1), (3) and (4). They state:

70(1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held under subsections 64(7) or 65(9), appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.

(3) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a complainant if the appeal is from a finding that misconduct or unsatisfactory work performance is not proved on clear and convincing evidence.

(4) The Commission may hold a hearing, if it considers it appropriate, upon receiving a notice under subsection (1) from a complainant with respect to an appeal other than an appeal described in subsection (3).

10. Basically, these sections give a public complainant the right to appeal a decision where a finding of misconduct has not been proved. All other appeals require the approval of the Commission.

11. Accordingly, the purpose of this proceeding is to determine whether or not leave to appeal should be granted to the Applicant to contest the October 2, 1998 decision of the Hearing Officer.

Preliminary Motions:

12. At the commencement of this proceeding on July 27, 1999, Mr. Black on behalf of the Respondent’s raised three preliminary concerns.

13. First, he stated that the chief of police was not a proper party to an application for leave to appeal. As such, he suggested that we should not hear arguments from Mr. Monteith.

14. Second, he suggested that the Applicant had not filed his appeal within 30 days as required by section 70(1) of the Act. Further, he stated that the Commission has no authority to extend this time period. Accordingly, he argued that we have no jurisdiction to consider this application.

15. Finally, he stated that the Applicant failed to serve the Respondents with proper notice under section 8.1 of the Commission’s Rules of Practice. He stated that this failure goes to our jurisdiction to proceed.

16. We dealt with the first two matters in a ruling dated November 29,1999. We reconvened this proceeding on January 27, 1999 to hear arguments on the third preliminary issue.

17. This is the subject of this decision.

Decision:

18. Section 70(1) of the Act provides that a complainant who wishes to appeal the decision of a Hearing Officer must do so by serving written notice on the Commission within 30 days. In our ruling of November 29, 1999 we found that this requirement had been met.

19. Specifically, we concluded that while the Hearing Officer rendered his decision on October 2, 1998 actual notice was not received by Mr. Reiter until October 13th, 1998. As a result the notice of the appeal served by Mr. Reiter on this Commission of November 10th, 1998 was within the 30-day limitation period set out in section 70(1).

20. However, this is not the only requirement to initiate an appeal. The Commission has established Rules of Practice pursuant to the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 as amended. Section 25.1 of that act provides:

25.1(1) A tribunal may make rules governing the practice and procedures before it.

(2) The rules may be of general or particular application.

(3) The rules shall be consistent with this Act and other Acts to which they relate.

21. Section 8.1 of the Commission’s Rules of Practice states:

8.1 A police officer or complainant who appeals to the Commission under

s. 70(1) of the Act shall deliver upon the other parties … a Notice of Appeal, together with a copy of the Notice of Decision within thirty days of receiving notice of the decision which is the subject of appeal.

22. Thus, a complainant who wishes to appeal must also serve notice within thirty days “upon the other parties”.

23. Section 5.1 of the Commission’s current Rules states:

5.1 The parties to an appeal include,

(a) the police officer;

(b) the prosecutor at the disciplinary

hearing being appealed from; and

(c) the complainant, if the complaint was made

by a member of the public

24. It is clear therefore that a complainant must serve notice on both the prosecutor and any police officer who is the subject of the decision appealed from.

25. This is a reflection of basic natural justice. Simply put, if a decision is challenged, the individuals who might be affected are entitled to know.

26. Both the Act and Rules speak to how a notice is to be served. Section 77(1) states:

77(1) Where a notice is required to be given to or served on a person,

board or Commission under this Part, it may be served personally, by regular

mail, by electronic transmission, by telephone transmission of a facsimile, or by

some other method that allows proof of receipt.

27. Section 11.1 of the Rules mirrors this provision. It states:

11.1 Service may be effected by sending the document,

(a) by personal delivery; (b) by regular, registered or

certified mail to the last known address of the person or their representative;

(b) by fax to the last known fax number of the person

(or representative), but only if the document, inclusive of the cover sheet, does not exceed sixteen pages, or where longer, if the receiving party consents;

(c) by courier, including Priority Post, to the last known

address of the person or their representative; or

(d) by any other means authorized or directed by the

Commission.

28. Section 11.2 allows for substituted service in situations where a party cannot be readily found.

29. Both the Act and Rules also speak to the question of when a document is deemed to be received. Section 77(2) of the Act states:

77(2) Service by regular mail shall be deemed to be received by the person, board or Commission on the fifth day after it is mailed unless the person, board or Commission establishes that the person, board or Commission did not, acting in good faith, through absence, accident, illness or other cause beyond the person’s, board’s or Commission’s control, receive the notice on that day.

(3) Service by electronic transmission or by telephone transmission of a facsimile shall be deemed to be received by the person, board or Commission on the day after it is sent or, if that day is a Saturday or holiday, on the next day that is not a Saturday or holiday, unless the person, board or Commission establishes that the person, board or Commission did not, acting in good faith, through absence, accident, illness or other cause beyond the person’s, board’s or Commission’s control, receive the notice on that day.

30. The corresponding provisions of the Rules state:

11.3 Service is deemed to be effective,

(a) by personal delivery before 4:00 p.m., on the day of delivery, and after

that time, on the next day;

(b) by mail, on the fifth day after the day of mailing;

(c) by fax, on the day after it was sent;

(d) by courier, on the second day after the document was given to the

courier; or

(e)by any means authorized or directed by the Commission,

on the date specified by the Commission in its direction.

31. Section 11.4 provides that the above does not apply “where a person who acts in good faith does not receive the notice until later or at all.”

32. How do all these provisions apply to this case? It is clear that the Applicant had an obligation to serve both the prosecutor and six respondent officers with notice of his intention to appeal within 30 days of October 13, 1998. This is the date that he received notice of the decision.

33. How was this obligation met? We were provided with a sworn Affidavit of Service by Naomi Bruni dated December 29, 1998. Ms. Bruni is a secretary in Mr. Reiter’s office. She deposes that service was effected on the respondent officers in two different ways.

34. First, she states that on December 22, 1998 she faxed a copy of the Notice of Appeal to Detective John Schertzer. She deposes that attempts to serve the other officers by this means were unsuccessful. We were advised that the fax number in question was that of the Chief of Police at Toronto Police Headquarters.

35. Second, Ms. Bruni deposes that she served the respondent officers on December 23, 1998 by delivering six Notices of Appeal to Toronto Police Headquarters at 40 College

36. Street and leaving them “at the Duty Desk with Frank Murphy who identified himself as a co-op student”.

37. The Affidavit does not speak to the question of service on the prosecutor. We note however that Mr. Reiter’s original correspondence to the Commission received on November 10, 1998 purports to be copied to Staff Inspector Tom Dalziel. He served as prosecutor at the original disciplinary proceedings.

38. Mr. Black provided us with a series of affidavits from the respondent officers. They all assert that they had never been served with any Notice of Appeal. Further, it would appear that Mr. Black was not aware of this matter until early 1999 when he was contacted by the Commission Registrar to confirm whether or not he would be representing the Respondents.

39. Accordingly, while there is some evidence to permit us to conclude that the prosecutor may have received timely notice, we find that the Respondent officers were not served with a Notice of Appeal within thirty days as required by Rule 8.1.

40. It would seem that seventy days after receiving the notice of decision the Applicant attempted to fax a Notice of Appeal to the Respondent constables at the office of the Chief of Police. Only one such notice was successful. However, even if all six had been successfully faxed within the required 30 days we do not believe that the Chief’s private fax number would qualify as “the last known fax number” of the Respondent’s within the meaning of Rule 11.1(c).

41. Seventy-one days after receiving notice of the decision the Applicant again attempted to serve the Respondents by leaving a copy of the Notice of Appeal with a student in a booth in the foyer of Police Headquarters. Again, even had this service been timely, we are not satisfied that this would constitute “personal delivery” or service at the “last known address of the person or their representative” within the meaning of Rules 11.1(a) or (b).

42. By way of explanation Mr. Reiter asserts that he had no current knowledge of the addresses of the officers. He argues that he is entitled to assume that Notice served on the Chief or left at Headquarters is sufficient. He further suggests that notice can be received either directly or indirectly and given Mr. Black’s appearance at these proceedings, it obviously was. On this point he cites Re Consigilio et al. (1971), 1971 CanLII 392 (ON HCJ), 3 O.R. 798 (S.C.O.). In response Mr. Black draws our attention to Otaco Ltd. v. Town of Orillia 1947 CanLII 99 (ON CA), [1948], O.R. 37 (Ont. C.A.) and Hare v. Registrar of Real Estate and Business Brokers (1984), 4 O.A.C. 104 (Div. Crt.).

43. We note that Mr. Reiter’s original correspondence with the Commission received on November 10, 1998 contained a copy of a Complaint Final Report and the decision of the Hearing Officer which is the subject of this application. The Report identified all the Respondent officers, provided their badge numbers and clearly indicated their work location as Central Field Command, 53 Division, 75 Eglinton Ave West, Toronto. The decision of the Hearing Officer clearly indicates that Mr. Black was the representative of the Respondent officers.

44. Given the above, we are satisfied that the Applicant had sufficient information to affect proper service in a timely manner. This did not occur.

45. Mr. Monteith suggests that the situation before us is not one contemplated by the Rules and accordingly the Applicant should not be prejudiced. Specifically, he argues that we are dealing with a “Leave to Appeal” application under section 70(4) of the Act rather than an “Appeal” under section 70(1). As such he contents that Rule 8.1 does not apply.

46. We disagree. As noted earlier section 70(4) states:

70(4) The Commission may hold a hearing, if it considers it appropriate, upon receiving notice under subsection (1) from a complaint with respect to an appeal other than an appeal described in subsection (3).

47. Clearly, in order to seek “Leave to Appeal” a “Notice of Appeal” must be filed under section 70(1). Otherwise how would the parties know what issues are in dispute? Rule 8.1 must apply.

48. That being said, we acknowledge that there may well be circumstances in which an unsophisticated or unrepresented public complainant may not have sufficient information to effect prompt service on respondent officers. There may well be other reasonable excuses. Further, there may be situations where the delay is so small as not to unduly prejudice the officers in question. Such situations are contemplated by Rule 3.4. None of these would appear to be the case here. The right of a complaint to take issue with a disciplinary decision must be balanced against an officer’s right to timely justice and procedural fairness.

49. Accordingly, for the above noted reasons we grant the motion and deny the application for leave to appeal.

DATED THIS 12TH DAY OF APRIL, 2000.

Murray W. Chitra G. Douglas Smith

Chair, OCCPS Member, OCCPS