DECISION

Panel: Michele J. Shephard, Member Orlando Zamprogna, Member

Hearing Date: Monday May 26, 2003

Hearing Location:

Appearances

William R. MacKenzie, Counsel for the Appellant

Brian Fazackerley, Counsel for the Respondent

I. Introduction

This is an appeal from a conviction for one count of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct (the “Code”) found at O. Reg. 123/98 by (retired) Superintendent W.J. Wolfe (the “Hearing Officer”) on October 10, 2001.

II. Background

The facts are not really in dispute. The relevant history of this appeal dates back to February 2000 when Constable Horodnyk became concerned that Sergeant Bates was assigned to complete her promotional assessment. There had been conflicts between her and Sergeant Bates in the recent past. As well, she felt that because he was not her immediate supervisor and had little contact with her that he would not be able to complete a fair assessment.
On March 20, 2000, Constable Horodnyk filed a written Workplace Discrimination and Harassment complaint with Professional Standards Branch of the Durham Regional Police Service (the “Service”). This complaint named seven supervisors (including Sergeant Bates) and made twenty-six allegations.
One of the allegations against Sergeant Bates related to the assessment review. Another claimed that he had made abusive and insulting comments about her to other officers. Professional Standards started what turned out to be a lengthy investigation. During the course of this investigation Constable Horodnyk made an additional allegation that she had been the subject of reprisal by Sergeant Bates.
By August 1, 2000 the investigators felt that they had sufficient evidence that Sergeant Bates may have committed misconduct. He was notified of this fact in writing. Sergeant Bates was transferred to a position not involving direct supervision of other police officers in order to preserve workplace integrity and reduce the risk of conduct contrary to the Workplace Discrimination and Harassment Policy, pending the outcome of the inquiries.
On May 28, 2001 the final investigative report was delivered to the Chief of Police. Three allegations of misconduct involving Sergeant Bates were identified. The allegations against the other six supervisors were not supported. Given the passage of time, an application was made to the Durham Regional Police Services Board on June 7, 2001 pursuant to section 69(18) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”) requesting an extension of the time to serve a Notice of Hearing on Sergeant Bates.
The extension was granted on July 3, 2001 “subject to a report being provided to the board from Legal Services on or before the regular December Board meeting”. Such a report was tabled with the Board on December 4, 2001.
On January 7, 2002 Sergeant Bates was served with a Notice of Hearing. It contained two allegations of discreditable conduct contrary to section 2(1)(a)(xi) of the Code and one allegation of deceit contrary to section 2(1)(d)(ii).
Sergeant Bates brought a motion to quash the Notice of Hearing on the basis that it represented an abuse of process. The Hearing Officer found that it was in compliance with section 69(18) of the Act. The hearing itself took place between October 7 and 9, 2002. Several witnesses testified including Sergeant Bates.
On October 10, 2002 the Hearing Officer found Sergeant Bates guilty of a single count of discreditable conduct. That related to an allegation that he had made comments to another officer concerning Constable Horodynk to the effect that “nobody better be nice to her when she gets back or give her the time of day”. It is this conviction which is the subject of this appeal. The other two counts were dismissed.
On December 3, 2002 the Hearing Officer assessed against Sergeant Bates the penalty of a reprimand and directed that he “participate in training related to Workplace Discrimination”.

The Issues

The Appellant raised two grounds of appeal. First, he asserted that the Hearing Officer erred in law in registering a conviction because the evidence relied upon was not weighty or cogent and was thus unreliable. Second, he alleged that the finding of discreditable conduct was not supported by clear and convincing evidence.

Appellant’s Position

Mr. MacKenzie, on behalf of Sergeant Bates, noted that Constable Horodnyk initially made 27 allegations of harassment against seven officers. Of those, only three counts against Sergeant Bates proceeded to a hearing. Further, the Hearing Officer dismissed the first and third count.
Mr. MacKenzie argued that the evidence with respect to these two dismissed counts is not relevant to this appeal. Rather, he stated that we should focus on the evidence before the Hearing Officer with respect to the portion of a conversation overheard by Constable Ytsma between Sergeant Bates and Staff Sergeant Shoenrock.
Constable Ytsma testified that he overheard Sergeant Bates tell Staff Sergeant Shoenrock something to the effect “nobody better be nice to her when she gets back or give her the time of day”. Mr. MacKenzie argued that this evidence was not weighty or cogent because it represented only a small portion of a private discussion between Sergeant Bates and Staff Sergeant Shoenrock for which there is no context.
Mr. MacKenzie claimed that the Hearing Officer should not have relied on Constable Ytsma’s evidence in arriving at this decision because Constable Ytsma:

did not confront Sergeant Bates and Staff Sergeant Shoenrock;
assumed the discussion was about Constable Horodnyk;
did not report the conversation to Sergeant Bennett whom he met only a few minutes after hearing the remarks;
did not record the gist of the overheard words until one hour later; and
had received a poor performance review by Sergeant Bates in the past.

Mr. MacKenzie further suggested that the reliability of Constable Ytsma’s evidence was either tainted or distorted by the Service’s “rumour mill”.
Sergeant Bates denied making the statement in question. Further, Mr. MacKenzie pointed out that Staff Sergeant Shoenrock testified that he did not recall such a conversation with Sergeant Bates, but stated that he would likely have remembered it if Sergeant Bates had made reprisal comments against another officer as this would have been a concern to him.
Mr. McKenzie concluded by stating that we must weigh the credibility of Constable Ytsma who overheard a portion of a conversation against that of Sergeant Bates and Staff Sergeant Shoenrock who actually had the conversation but had no recollection of these particular words. Overall, the Appellant’s claim is that the Hearing Officer applied a stricter standard of scrutiny to Sergeant Bates than on Constable Ytsma.
For these reasons, Mr. MacKenzie requests that we overturn the finding of discreditable conduct. In support of this appeal, Mr. MacKenzie tabled five case authorities: King v. Leitch (Ont. Bd. Inq., 29 November, 1993), Allan v. Munro (Ont. Bd. Inq., 27 July, 1994), R. v. Wesley Owen (Ont. C.A., 26 26, 2001), Williams and Ontario Provincial Police (1995), 2 O.P.R. 1048 (O.C.C.P.S.) and Burke v. The Queen (1996), 1996 CanLII 229 (SCC), 105 C.C.C. (3d) 205 (S.C.C.).

Respondent’s Position

Mr. Fazackerley requested that we confirm the decision of the Hearing Officer. He asserted that the Hearing Officer properly instructed himself on the relevant issues and law, considered and weighed the evidence in a thoughtful manner, made proper findings of fact and reached a patently reasonable conclusion.
He disputed the Appellant’s view that only the evidence used in support of the discreditable conduct conviction should be considered for the purposes of this appeal. He argued that all evidence and witness statements of the original disciplinary hearing form part of the record and thus can be considered by us. Mr. Fazackerley requested a ruling to this issue. He noted that this interpretation is important because the Appellant relies only on one portion of the transcript.
Mr. Fazackerley drew our attention to certain aspects of the evidence given by Sergeant Bates. According to Mr. Fazackerley, the evidence at the hearing supported the fact that Bates acknowledged key aspects of the events in question. He also noted portions of the evidence which he suggested presented contradictions.
Overall, Mr. Fazackerley argued that the Hearing Officer was in the best position to assess the credibility of the witnesses. On this point, Mr. Fazackerley pointed to page 1058 of Williams and Ontario Provincial Police where the Commission ruled:

Our role or function in such matters is not to second-guess the decision of the adjudicator. In certain limited cases, it would be open for us to reach a different conclusion from the trier of fact. However, that must be based on the strongest ground. In other words, there can be no other determination than the conclusions of the adjudicator, as to [whether] the credibility of witnesses, cannot be reasonably accepted.

According to Mr. Fazackerley, the only question for us is whether or not the decision of the Hearing Officer was without evidentiary foundation or demonstrated manifest error in principle.
Mr. Fazackerley suggested that the key cases cited by the Appellant arise from the criminal law, where the standard of proof is much higher. He argued that they have no relevance to this appeal. He suggested that the proper standard for assessing credibility was identified by the Commission in King and Ottawa Police Service (21 January, 2003, O.C.C.P.S). In that case at page 5, the Commission noted with approval the ‘O’Halloran test’ arising from the judgement of the British Columbia Court of Appeal in Faryna v. Chorny 1951 CanLII 252 (BC CA), [1952], 2 D.L.R. 354. It states that “… the real test of the truth of a story of a witness in such a case must be in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”
In support of these arguments Mr. Fazackerley also drew our attention to the following cases: Groat and Quinte West Police Service (26 November, 2001, O.C.C.P.S.), Norris v. Loranger (1998), 2 P.L.R. 493 (Ont. Bd. Inq.), Smith and Manuel and Toronto Police Service (6 March, 2003, O.C.C.P.S.), Gottschalk and Toronto Police Service 29 January, 2003, O.C.C.P.S), Mulholland and Halton Regional Police Service (25 March, 2003, O.C.C.P.S.), Burdett and Guelph Police Service (1999), 3 O.P.R. 1336 (O.C.C.P.S.) and Blowes Aybar and Toronto Police Service (7 March, 2003, O.C.C.P.S.).
Mr. Fazackerley concluded by noting that the penalty imposed in this case (i.e. a reprimand) is the lowest level of punishment for this infraction.

III. Decision

Sergeant Bates was charged with two counts of discreditable conduct and one count of deceit. The first count of discreditable conduct and the count of deceit were dismissed by the Hearing Officer. Accordingly, this is an appeal of one conviction.
This is an appeal on the record. Section 70(5) of the Act clearly states that “A hearing held under this section shall be an appeal on the record …” The Act does not define “record”. However, section 20 of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 as amended states:
A tribunal shall compile a record of any proceeding in which a hearing has been held which shall include,

a) any application, complaint, reference or other document, if any, by which the proceeding was commenced;

b) the notice of any hearing;

c) any interlocutory orders made by the tribunal;

d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding;

e) the transcript, if any, of the oral evidence given at the hearing; and

f) the decision of the tribunal and the reasons therefore, where reasons have been given. R.S.O. 1990, c. S22, s. 20.

Accordingly, the record includes all of the testimony and exhibits presented at the original disciplinary hearings.
This is supported by the Rules of the Ontario Civilian Commission on Police Services. Section 9.1 of those Rules requires a Chief of Police to file with the Commission a copy of the hearing record. Rule 9.2 states that this “shall include the decision appealed from and shall be accompanied by all documents, physical evidence and exhibits considered at the disciplinary hearing”. Rule 9.3 requires parties to file with the Commission those portions of the transcript of the disciplinary hearing upon which they propose to rely.
To our mind, this makes it clear that we are entitled to examine any portion of the record filed on an appeal. Further, the parties to an appeal are entitled to bring to our attention any parts of the record that they believe are pertinent to the issues in question. That can include aspects of the decision with respect to related counts. It is then our role to determine what is relevant to the dispute before us.
This is a case essentially of credibility. Constable Ytsma testified that he overheard a conversation between Sergeant Bates and Staff Sergeant Schoenrock in which certain disparaging remarks were made about Constable Horodnyk. Sergeant Bates denied making the comments. Staff Sergeant Schoenrock has little or no recollection of the discussion.
It was the role of the Hearing Officer to attempt to assess the truth of matters on the basis of the evidence before him. The Hearing Officer accepted the testimony of Constable Ytsma over that of Sergeant Bates. In our view, this was a conclusion that he was entitled to make on the basis of the totality of evidence given at the hearing.
In his decision, the Hearing Officer carefully examined the evidence. There is little question that Constable Ytsma was clear on the essence of the remarks that he heard. Shortly after the conversation, he confronted Sergeant Bates about aspects of what was said and received what he felt was an evasive response. As a result he made notes of the conversation which contained the offensive comments in question. He contacted another officer later that day and warned about possible reprisal. Constable Ytsma had nothing to gain by disclosing this information. Clearly, there was evidentiary foundation for the Hearing Officer to reach the conclusions that he did.
As well, to our mind, the Hearing Officer’s conclusion was in harmony with the preponderance of probabilities which a practical and informed person would recognize as reasonable. We see no reason to reach a different conclusion.
As a result, it is our finding that the Hearing Officer did not err in law but rather:

made a proper assessment on the findings of credibility of the witnesses;
identified the relevant issues and applied the essential legal principles;
conducted a careful analysis of the relevant evidence; and
identified and applied the test for clear and convincing evidence.

Accordingly, the conviction with respect to conviction for discreditable conduct must stand. We dismiss the appeal.
That being said, we wish to point out that we agree with the Appellant’s comments that the disposition of this charge was dealt through a protracted time sequence considering the level of infraction and the rather minimal occurrence and penalty. It is our sincere hope that in the future, perhaps there can be better or greater attention to a speedier and non-litigious resolution of this type of situation.

DATED THIS 8TH DAY OF JULY 2003.

Michele J. Shephard OCCPS Member

Orlando Zamprogna OCCPS Member

Sergeant Rick Bates v. Durham Regional Police Service, 2003 CanLII 85808

Case Summary