Staff Sergeant Kenneth Kyle v. York Regional Police Service, 2002 CanLII 76718

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

REASONS FOR DECISION ON MOTION

STAFF SERGEANT KENNETH KYLE

Appellant

and (Respondent on Motion)

YORK REGIONAL POLICE SERVICE

Respondent

(Applicant on Motion)

Presiding Members:

Murray W. Chitra, Chair

E.E. Kelly Culin, Member

Appearances:

Ms. Elizabeth Cowie, Counsel for the Respondent and Applicant on Motion

Ms. Joanne Mulcahy, Counsel for Appellant and Respondent on Motion

Hearing Date: November 26, 2002

This motion is brought on behalf of the Respondent pursuant to 13.3(f) of the

Rules of the Ontario Civilian Commission on Police Services (the "Commission").

The York Regional Police Service (the "Service") is requesting an order pursuant to section 25(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended. The affect of such an order would be to lift the automatic stay of the penalty imposed by Superintendent G. Smyth (the "Hearing Officer") on January

15, 2002 pending the outcome of Staff Sergeant Kyle's appeal.

Background:

Staff Sergeant Kyle has been an officer with the Service for 29 years.

On April 15, 1999, while off duty, Staff Sergeant Kyle drove his car while impaired. He struck another vehicle. He became involved in an altercation with the other motorist. He made insulting racial remarks and kicked the other driver in the back. He identified himself as a police officer.

As a result, Staff Sergeant Kyle was charged with three criminal offences. These were impaired operation of a motor vehicle, operating a motor vehicle with excess alcohol in his blood and assault.

On February 8, 2000 Staff Sergeant Kyle pled guilty to impaired operation of a motor vehicle and assault. He was found guilty of these matters and the third charge was withdrawn. On April 3, 2000 he appeared for sentencing. On the impaired conviction he received a fine of $1200.00 and was prohibited from driving for one year. Passing of sentence on the assault was suspended and he was placed on probation for twelve months.

As a consequence of the criminal convictions Staff Sergeant Kyle was charged with disciplinary offence of discreditable conduct contrary to section 2(1)(a)(ix) of the Code of Conduct found at O. Reg. 123/98 (the "Code"). On December 5,

2001 he appeared before the Hearing Officer and pled guilty. This plea was accepted and a joint submission was made with respect to penalty.

Both parties agreed that an appropriate penalty would be demotion to the rank of sergeant for one year. However, they disagreed on what should happen following the period of demotion. Staff Sergeant Kyle argued that he should be returned to his former rank. The prosecutor argued that he should remain at the rank of sergeant until such time as he might be successful in any promotional competition.

On January 15, 2002 the Hearing Officer rendered judgment and demoted Staff Sergeant Kyle to sergeant for a period of twelve months. He directed that at the end of that period Staff Sergeant Kyle would not automatically return to his former rank. Rather, he would be permitted to enter any promotional process for the rank of staff sergeant, without being required to rewrite the qualifying examination.

On January 25, 2002 Staff Sergeant Kyle filed an appeal with this Commission pursuant to section 70(1) of the Police Services Act, R.S.O. 1990, c. P.15 as amended. This appeal is with respect to penalty only. Further, it is focused not on the jointly agreed demotion for twelve months, but the Hearing Officer's direction concerning what would happen following that period.

As a consequence of filing this appeal, the penalty imposed against Staff

Sergeant Kyle was automatically stayed as a result of the application of section

25(1) of the Statutory Powers Procedure Act. His appeal is scheduled to be heard on January 6, 2003.

The Motion:

Ms. Cowie, seeks an order pursuant to section 25(1)(b) of the Statutory Powers

Procedure Act lifting the automatic stay of the penalty.

She argued that the Commission has the authority to lift a stay in appropriate circumstances. This is particularly the case where to permit a penalty not to be enforced would be contrary to both the public interest and injurious to the integrity of the disciplinary process. In this respect she drew our attention to Brooks and Durham Regional Police Service (1989), 2 O.P.R. 850 (O.P.C.) and X (Mrs.) v. Y (Sgt.) (1994), 1 P.L.R. 215 (Bd. of Inq.).

She noted that previous cases before the Commission and the former Board of Inquiry dealing with similar applications do not set out the criteria to be considered in such applications. In summary, however, she suggested that relevant factors could include:

• public perception;

• length and reasons for delay;

• nature and seriousness of the misconduct and penalty; and

• balance of convenience and potential irreparable harm

Ms. Cowie acknowledged that the onus in making the case to lift the stay rested with her.

She also drew our attention to a series of civil cases. These included

International Corona Resources Ltd. v. Lac Minerals Ltd. (1986), 21 C.P.C. (2d)

252 (Ont. C.A.) and RJR-MacDonald Inc. v. Canada (Attorney General) [1994], 1

S.C.R. 311 (S.C.C.). She suggested that we should consider adopting both the principles and tests identified in these judgments.

The tests in question have three interrelated aspects. The first requires an examination of the merits of the appeal. Ms. Cowie argued that if an appeal does not raise a serious legal question or is frivolous or vexatious on its face that any stay must be lifted. On this point she cited Turnbull v. Canadian Institute of Actuaries 1995 CanLII 16494 (MB QB), [1995], M.J. No. 278 (Man. Q.B), O'Donnell v. Law Society of Upper Canada [1995], O.J. 3860 (Div. Ct.) and Dr. Q. v. College of Physicians and Surgeons of British Columbia [1999], B.C.J. No. 2652 (B.C.C.A.).

In assessing the merits of an appeal she asserted that in cases where the facts are not in dispute, the Charter is not in question, or the parameters of a penalty are not in issue, then the threshold on this question is low. On these points she cited British Columbia (Securities Commission) v. DeCambriana [1996], B.C.J. No. 394 (B.C.C.A.) and Re Spring and Law Society of Upper Canada (1987), 60

O.R. (2d) 699 (Div. Ct.).

Ms. Cowie argued that the appeal in this case is without merit and discloses no serious issue. She noted that Staff Sergeant Kyle pled guilty, does not dispute the underlying facts giving rise to the disciplinary allegations and agreed to a demotion. She pointed out that prior cases have upheld the principle of an officer not automatically returning to a former rank following a period of demotion. On this question she drew our attention to X v. Y (1994), 2 P.L.R. 285 (Bd. of Inq.).

Even assuming that an appeal might have some merit, Ms. Cowie argued that as the second part of the test we must consider the question of irreparable harm. Essentially, she asserted that the Service and the broader public would suffer greater harm if the penalty in question was not promptly enforced. She acknowledged some prejudice to Staff Sergeant Kyle but suggested that it can

be compensated for monetarily and thus is not irreparable.

On these points she cited Sada v. College of Dental Surgeons of Ontario [2000], O.J. N. 1997 (Div. Ct.), Adair v. British Columia College of Teachers [1999], B.C.J. No. 439 (B.C.S.C.), Moncton Police Association v. New Brunswick (Solicitor General) [1998], N.B.J. No. 553 (N.B.Q.B.), Butterworth v. College of Veterinarians of Ontario [2001], O.J. No. 5265 (Div. Ct.), Howe v. Institute of Chartered Accountants of Ontario (1994), 1994 CanLII 10532 (ON CTGD), 21 O.R. 315 (Div. Ct.) and Lyons c. Ordre Professionel des Dentist du Quebec [2001], J. Q. No. 4147 (C.S.Q.).

The final or third aspect of the test urged upon us by Ms. Cowie related to assessing balance of convenience. She argued that this is the most important of the three. She asserted that there is a presumption that the decision of a lower court or tribunal is correct. She argued that the demotion of Staff Sergeant Kyle for a year has little prejudice compared to the impact on the Service and the public when there is not a prompt resolution of disciplinary matters. She stated that a party is entitled to have a judgment given effect, even pending an appeal, unless there are compelling reasons to the contrary.

In support of these propositions she cited Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. 674 (Ont. C.A.), Moore v. British Columbia (Securities Commission) [1996], B.C.J. No. 651 (B.C.C.A.), and Shpak v. Institute of Chartered Accountants of British Columbia [2002], B.C.J. No. 1704 (B.C.C.A.).

In conclusion she urged us to lift the stay and have Staff Sergeant Kyle's demotion instituted pending the outcome of the appeal.

Ms. Mulcahy takes strong issue with this position.

She noted that immediately following the imposition of the penalty in the original disciplinary hearing, Staff Sergeant Kyle had his pay reduced to sergeant level. When it was determined that an appeal had been filed this was corrected. As well, Deputy Chief Hill assured the President of the York Regional Police Association that Staff Sergeant Kyle's pay would "not be reduced until such time as the appeal had concluded". Ms. Mulcahy argued that this motion flies in the face of these assurances.

She noted that Staff Sergeant Kyle is a long-standing officer with an excellent record. He has been actively involved with the community. He pled guilty, assumed responsibility, sought treatment and apologized to his victim. He has many letters of public support. He continues to perform his job well.

Ms. Mulcahy argued that the provision of the Statutory Powers Procedure Act

and Police Services Act are consistent. Both contemplate any penalty or sanction against an officer being held in abeyance pending the final resolution of an appeal. In this respect she drew our attention to sections 67, 69 and 70 of the Police Services Act and the case of Williams and Ontario Provincial Police (1995)

2 O.P.R. 1008 (O.C.C.P.S.).

She argued that there are good public policy reasons for ensuring that a police officer not be punished until the full disciplinary process is concluded and a matter can be aired before an external independent appeal body. She argued that this present disciplinary system has a built in institutional bias. She noted that prior to the matter coming before us the Chief of Police initiated the disciplinary charges and appointed both the prosecutor and hearing officer. She then noted that the Chief is now seeking by way of motion to enforce his delegate's penalty prior to that decision being tested.

She argued that a stay cannot be lifted merely for the purposes of punishment or used as a barrier to officers filing appeals and asserting their proper legal rights. On this point she cited Re Schiller and Scarborough General Hospital (1973), 2

O.R. (2d) 324 (Div. Ct.).

Ms. Mulcahy argued that there are substantial merits to Staff Sergeant Kyle's appeal. It is scheduled to be heard in a few weeks. She pointed out that it is based on six grounds that she asserted should not be dealt with prior to the formal appeal itself. Leaving that aside, she argued that the Hearing Officer imposed an indeterminate suspension in contravention of section 68(1)(c) of the Police Services Act. She asserted that this action also represents an unlawful delegation of authority.

In support of this position Ms. Mulcahy cited Rusnak and Tillsonburg Police

Service (1979), 1 O.P.R. 406 (O.P.C.), Sutton and Barrie Police Service (1982),

1O.P.R. 552 (O.P.C.), Batorski and Niagara Regional Police Service (1982), 1

O.P.R. 569 (O.P.C.), Re Air Canada and Canadian Air Line Flight Attendants Association (1979), 1979 CanLII 3944 (CA LA), 22 L.A.C. 371 (Adams) and Watling and Woodstock Police Service (1968), 1 O.P.R. 11 (O.P.C.).

Ms. Mulcahy argued that the Service has presented no evidence of irreparable harm. She noted that the law is clear that it is not contrary to the public interest to stay a penalty pending appeal. Indeed, she asserted that the public continues to benefit from Staff Sergeant Kyle's good work in his current capacity. Further, she argued that Staff Sergeant Kyle would certainly suffer harm if the stay were to be lifted. His income would be reduced. He would suffer a loss of status, self-respect and suffer embarrassment. As well, depending on the decision on the appeal, he may end up serving greater punishment than necessary. For these reasons she asserted that the balance of convenience favours the continuation of the stay and asks that this motion be dismissed.

In support of these points Ms Mulcahy citied Cirillo v. York (Regional Municipality) [1991], O.J. No. 1715 (Ont. G. D.), Mahood v. Hamilton-Wentworth Regional Board of Police Commissioners (1977), 1977 CanLII 1405 (ON CA), 14 O.R. (2d) 708 (Ont. C.A.) and Gardner and Board of Police Commissioners for the City of Cornwall (1986)

1986 CanLII 2840 (ON HCJ), 56 O.R. (2d) 189 (Div. Ct.).

Decision:

Section 25 of the Statutory Powers Procedure Act reads as follows:

25(1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,

a) another Act or regulation that applies to the proceeding expressly provides to the contrary; or

b) the tribunal or the court or other appellate body orders otherwise.

The term "tribunal" is defined by section 1 to mean: "one or more persons, whether or not incorporated and however described, upon which a statutory power of decision is conferred by or under a statute".

There is no doubt that a Hearing Officer conducting a disciplinary proceeding under section 64 of the Police Services Act or imposing a penalty under section

68 qualifies as a "tribunal" within the meaning of section 25 of the Statutory Powers Procedure Act. Further, when the Commission is considering an appeal from such a decision under section 70 of the Police Services Act it is an "appellate body" within the same provision.

This conclusion is reinforced by other provisions of the Police Services Act. Section 69 requires that all disciplinary hearings "shall be conducted in accordance with the Statutory Powers Procedure Act". Section 22(3) imposes the same obligation on the Commission when it is exercising its appellate authority. Accordingly, when an officer files an appeal with the Commission there is an automatic stay of the penalty pending the outcome of the appeal.

This result is a clear expression of the intention of the legislature. It is a statement that in the normal course of events a conviction or disciplinary penalty imposed against a police officer should not be enforced until the conclusion of

the appellate process. This has particular resonance in two situations. The first is cases with brief suspensions or demotions. What practical value would a right of appeal have if the penalties were served before the appeal could take place?

The second situation involves cases dealing with termination. There have been a number of analogous decisions dealing with the question of the authority of

police employers to suspend an officer facing an investigation or disciplinary proceedings without pay. In Mahood v. Hamilton Wentworth Regional Board of Police Commissioners the Ontario Court of Appeal stated at page 710:

...I have difficulty saying that it would be contrary to public policy to extend the pay of a police officer pending his appeal to the Ontario Police Commission. A police officer in the position of appellant has already served a substantial probationary period before being appointed to the force as a constable. The probationary period has given his superior officers sufficient time to pass some judgment on his qualifications before his status is confirmed. Is it therefore so offensive to the public good that a police officer should continue to

be paid until his right to hold his office has been finally determined? Depriving him of remuneration until his right to hold the office is finally determined is an equally offensive concept.

Other cases making a similar point include Williams and Ontario Provincial Police and Cirillo v. York (Regional Municipality).

This motion raises two questions for us. The first is whether the Commission has the authority to lift a stay pending an appeal. There have certainly been cases in the past where the Commission has used section 25 of the Statutory Powers Procedure Act. See Brooks and Durham Regional Police Service. There has been some debate whether or not this was appropriate in light of section 36 of R.R.O. 1990, Reg. 927. It read:

36. No member of the Force is subject to any penalty under this Part except after a hearing and final disposition of a charge on appeal as provided by this Part, or after the time for appeal has expired.

However, this provision was repealed with the proclamation of O. Reg. 123/98 on March 26, 1998 and no similar provision enacted. Accordingly, we are of the view that the Commission has the authority under section 25(1)(b) of the Statutory Powers Procedure Act to order that an automatic stay of penalty be lifted.

The second question is when is it appropriate to exercise this authority? On this point we have had a number of cases drawn to our attention. Most deal with interlocutory injunctions, applications to stay regulations or professional disciplinary cases in a different statutory context. We are not sure how helpful they are.

However, we do agree that there is value in considering the potential merits of an appeal and questions of potential prejudice. If an appeal on the face of it is frivolous or vexatious then section 25 should not be permitted to be used by an officer as a shield against the timely application of a proper disciplinary penalty. On the other hand, if the lifting of a stay would have the practical effect of rendering an appeal meaningless in a particular situation then a police employer should not be allowed to use section 25 to frustrate an officer's entitlement to seek appellate relief from the Commission.

We have had an opportunity to briefly examine the six grounds of appeal advanced by Staff Sergeant Kyle. They are supported by a substantial factum and case authorities. They raise an important issue of statutory interpretation. Without passing judgment on the eventual outcome we do not view this appeal as being frivolous or vexatious on its face.

The issue of prejudice is another matter. Staff Sergeant Kyle pled guilty to discreditable conduct. His culpability is not in dispute. At the disciplinary hearing he agreed to a penalty of demotion to sergeant for twelve months. Accordingly,

the length of penalty is not at issue. The only question is what occurs after that period. His status as a police officer or right to hold office is not at issue.

Regardless of the outcome of his appeal Staff Sergeant Kyle will be demoted. Further, given that the appeal is scheduled to be argued in less than six weeks, he will have our decision well before the end of his period of demotion. Therefore we do not see how his appeal would be rendered meaningless, or how he would suffer any practical prejudice, if he commenced serving the undisputed portion of an agreed upon penalty.

For these reasons we are satisfied that the integrity of the disciplinary process would be best served if the automatic stay in this case is lifted. Accordingly, the motion is granted.