Constable Neil Orr v. York Regional Police Service, 2001 CanLII 56736

ONTARIO CIVILIAN POLICE COMMISSION

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

BETWEEN:

CONSTABLE NEIL ORR

Appellant

-and-

YORK REGIONAL POLICE SERVICE

Respondent

DECISION

Panel: Barbara M. Wellard, Member

G. Douglas Smith, Member

Hearing Date: June 6, 2001

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:

Barbara M. Wellard, Member

G. Douglas Smith, Member

Appearances:

Leo A. Kinahan, Counsel for the Appellant

H. Reginald Watson, Counsel for the Respondent

Hearing Date: June 6, 2001

1. This is a motion brought on behalf of the York Regional Police Service for an order dismissing the appeal of Constable Neil Orr for failure to file a notice of appeal within 30 days as required by subsection 70 (1) of the Police Services Act, R.S.O. 1990 c. P. 15 as amended (the “Act”).

Background:

2. On July 31, 2000 Constable Neil Orr was found guilty of misconduct following a hearing before Deputy Chief T. Kelly (the “Hearing Officer”). On the same date a written decision was served on both Constable Orr and his Counsel.

3. On September 22, 2000 the Hearing Officer imposed a disciplinary penalty on Constable Orr pertaining to the same matters and a written decision was served upon both him and his Counsel.

4. It is agreed that notice of appeal with respect to the finding of guilt (not the sentence imposed) was sent to this Commission via facsimile transmission on October 23, 2000.

Argument:

5. Counsel for the Respondent relies on subsection 70 (1) of the Act. It requires that a notice of appeal must be served on this Commission within 30 days of receipt of notice of a decision made after a hearing.

6. He argued that the appeal period in this case commenced on July 31, 2000. This date relates to the finding of guilt. He also relies on Commission Rule 8.1 which provides that the 30 day limitation period commences “on receiving notice of the decision which is the subject of the appeal”. He suggested that given there was no appeal from sentence Constable Orr’s notice of appeal had to be filed with the Commission by August 30, 2000.

7. In the alternative, he argued that if we determined that the appeal period commenced after the sentencing portion of the hearing, that this decision was pronounced and served on the Applicant on September 22, 2000. Therefore, notice of appeal had to be served on the Commission no later than October 23, 2000.

8. Service via facsimile is addressed in subsection 77(3) of the Act. It provides that when service occurs by the transmission of a facsimile it is deemed to be effective the following day. Accordingly he argued that the Commission was served with Constable Orr’s notice of appeal on October 24, 2000: i.e. one day too late.

9. Mr. Watson suggested that subsection 70(1) is mandatory and that we have no jurisdiction to extend the 30-day limitation period. He further argued that this Commission cannot grant itself power to extend the statutory time limits through the passage of Rules of Practice.

10. In response, Mr. Kinahan argued that Rule 3.4 provided discretion to vary any of the time limits set out in the Rules on such conditions as this Commission considers appropriate. Consequently he argued that this Commission had the discretion to vary the time limit as set out in Rule 8.1 which stipulates that a notice of appeal shall be delivered within 30 days of receiving the notice of decision.

11. He argued that one could not be expected to file their notice of appeal until the sentencing portion of the hearing had been completed and did not accept the interpretation of Rule 8.1 advanced by Mr. Watson.

12. He asked the Commission to exercise its discretion to extend the time as the filing was “only one day late”. He argued that not to do so was to prejudice Constable Orr for an error of his Counsel.

Decision:

13. We do not agree with the position advanced by Mr. Watson which would have required a notice of appeal to have been filed prior to the sentencing hearing in this matter, i.e. 30 days after the finding of guilt on July 31, 2000. Subsection 70 (1) states:

70(1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held under subsection 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.

14. When there has been a finding of guilt, a final decision is not rendered until after the sentence has been imposed and the written decision(s) regarding the finding of guilt and sentence has been served on the police officer. That is when the 30-day time period set out in subsection 70(1) commences.

15. To find otherwise, would, in our opinion, not only be prejudicial to the police officer but would also lead to a situation where more than one notice of appeal could be filed in relation to the same matter.

16. We are satisfied that the required notice of decision was served upon Constable Orr and his Counsel on September 22, 2000. Accordingly, pursuant to subsection 70(1) the time for filing the notice of appeal expired on October 23, 2000.

17. Notice in this case was faxed to the Commission on that date. However, subsection 77(3) states:

77(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.

18. Thus, the notice in question must be deemed to have been served on October 24, 2000. This is one date beyond the time frame contemplated by the Act.

19. This Commission previously stated that it does not have inherent jurisdiction to extend or vary the time periods set out in the Act. See Sipar and Schertzer, et. al. (November 29, 1999 OCCPS). Our position remains unchanged. To accept Mr.Kinahan’s argument would result in the Rules being used to amend the legislation. Clearly this is beyond our jurisdiction.

20. Accordingly, for the above noted reasons, we grant the motion and dismiss the appeal.

DATED THIS 29TH DAY OF JUNE 2001.

Barbara Morland Wellard G. Douglas Smith

Member, OCCPS Member, OCCPS