ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
SERGEANT MICHAEL YOUNAN Appellant
ONTARIO PROVINCIAL POLICE Respondent
Presiding Members: Murray W. Chitra, Chair Peter J. Doucet, Member
Appearances: Gavin J. May, Counsel for the Appellant Ted Carlton, Counsel for the Respondent
Hearing Date: April 2, 2004
This is an appeal by Sergeant Michael Younan from a decision of Superintendent M. Elbers (the "Hearing Officer") dated November 19, 2003. That decision arose from a motion brought by the Appellant.
Background:
On August 2, 2002 Sergeant Younan was charged with one count of discreditable conduct contrary to the Code of Conduct found at O. Reg. 123/98 (the "Code"). For the purposes of this appeal the facts giving rise to this allegation are not relevant.
The disciplinary hearing was held August 19 and 20, 2003. At the conclusion of the Prosecution's case counsel for Sergeant Younan brought a motion for non-suit. This is a process in civil proceedings where a defendant seeks a ruling on whether or not a plaintiff has made a prima facie case. The equivalent process in criminal matters is known as motion for a directed verdict of acquittal.
The Hearing Officer concluded that Sergeant Younan must elect whether or not to call evidence as a pre condition to a ruling on the motion. It is this decision that is the subject of this appeal. Sergeant Younan's disciplinary hearing is presently on hold pending our ruling.
Decision:
This case raises two issues. The first is whether or not the appeal of the November 19, 2003 decision of the Hearing Office is premature. Assuming this is not the case, the second issue before us is whether or not the Hearing Office erred in his ruling on the motion for non-suit.
The Commission is a creature of statute. Our authority to act on any matter must derive from legislation. It is common ground to both Appellant and Respondent that the relevant empowering provision with respect to the Commission's appellate jurisdiction in found at section 70 of the Police Services Act, R.S.O. 1990, c. P.15 as amended.
It reads:
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.
Counsel for the Respondent points to words "after a hearing". He argues that our authority is limited to hearing appeals of final decisions as opposed to interlocutory ones (i.e. procedural rulings made during the course of a hearing).
We agree that the wording of section 70(1) limits our jurisdiction to appeals of final orders. We find support for this conclusion in Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 CanLII 5633 (ON HCJDC), 66 O.R. (2d) 18 (Div. Ct.) and McCann v. Ontario (Police Services Board of Inquiry) [1994] O.J. No 202 (Div. Ct.).
Roosma concerned an appeal of a number of rulings of a Board of Inquiry appointed under the Human Rights Code S.O. 1981, c. 53 as amended. The relevant wording of the appeal section of the Human Rights Code included the phrase "after a hearing". This is the same as section 70(1) of the Police Services Act. The Divisional Court carefully analyzed the choice of the Legislature in using these words and determined that it intended that only final orders of the Board of Inquiry could be appealed.
The Divisional Court applied the same logic to proceedings under the former public complaints provisions of the Police Services Act in McCann. Mr. Justice Saunders stated at page 2:
In my opinion, it is clear, in the context of the legislation, that the decision referred to in s. 98 is a decision of the Board to dispose of the matter before it. The issue here is indistinguishable from that considered by this court in Roosma ... As pointed out in Roosma, the appropriate course is to seek judicial review in a situation where there is alleged to be a denial of natural justice if a tribunal were to proceed further with a hearing.
We adopt this reasoning with respect to the operation of section 70(1).
The question then becomes whether or not the decision of the Hearing Officer on November 19, 2003 was final.
There has been a myriad of cases over the years that have attempted to give some assistance to parties to civil proceedings in Ontario in determining what constitutes a final as opposed to an interlocutory order. Further, various courts including the Ontario Superior Court of Justice have established rules to distinguish between the two.
The law in this area can be complex. However, in this case, we have no difficulty with finding that the decision by the Hearing Officer to put Sergeant Younan to his election to call evidence was interlocutory. This ruling was entirely procedural in nature. It did not determine all of the issues before the Hearing Officer in a final way, nor could it ever have the potential to do so, regardless of the outcome of the motion. It only concerned the very narrow point of election.
This is in contrast with the case of Gough and Peel Regional Police Service (June 5, 2003, O.C.C.P.S.). The facts of that case were both peculiar and unique. In Gough the officer was facing serious allegations. At the beginning of the disciplinary proceedings counsel for the officer brought a motion arguing that the Hearing Officer had no jurisdiction to proceed because of a failure to serve a Notice of Hearing within the period mandated by section 69(18) of the Police Services Act.
The motion was denied and after some discussion Constable Gough agreed to plead guilty by way of a joint submission to the Hearing Officer. The officer subsequently received a penalty that he felt was excessive and appealed within the 30-day time frame required by section 70(1). In that appeal he also attempted to challenge the much earlier motion decision.
The Commission chose not to hear this portion of the appeal relating to the motion. It concluded that a motion to stay a hearing for failure to bring disciplinary charges against an officer within the legislated limitation period was akin to a civil motion for summary judgment. Further, that motion raised an issue that had the potential to be final. In other words, if the motion had been granted the hearing would have ended.
No appeal had been brought within 30 days of the decision on the motion. No application for judicial review had been initiated. Assuming that the officer did not accept the Hearing Officer's ruling, at the very least, an appeal should have been filed to preserve his right to contest that decision.
However, perhaps more to the point, Constable Gough had pled guilty and accepted responsibility for his conduct. This arose as a result of a negotiated resolution put by both parties to the Hearing Officer. It was accepted.
Presumably, as a result, the officer received a reduced penalty. To permit that officer to subsequently dispute his conviction arising from a negotiated disposition to which he was a party would have been offensive. His acceptance of the mutually agreed upon arrangement was akin to a waiver of appeal.
The facts in this case bear no resemblance to those in Gough. Accordingly, we conclude that this appeal is premature. We find that we have no jurisdiction under section 70(1) to entertain an appeal from the interlocutory decision of the Hearing Officer to put the officer to his election to call evidence prior to bringing his motion for a non-suit, given that our jurisdiction is restricted to the appeal of final orders.
In the normal course of events there would be no need for us to address the second issue raised by this appeal. However, both parties have requested that we provide some guidance of the question of the proper procedure to be followed with respect to motions for non-suit in hearings under Part V of the Police Services Act. With this in mind, we would make the following observations.
Disciplinary hearings under the Act are administrative proceedings. Motions for non-suit are available to responding parties. J. Sopinka, S. Lederman and A. Bryant note in their leading text "The Law of Evidence in Canada" (Second Edition, 1999) at page 141: "The non-suit procedure in various jurisdictions is followed in all civil actions and administrative proceedings except defamation cases."
The procedure for both civil and administrative hearings is the same. As the Divisional Court clearly stated in Ontario v. Ontario Public Service Union (OPSEU) [1990], O.J. No 635 (Div. Ct.) at page 9: "There is no reason to think that a motion for non-suit before an administrative tribunal should not conform with the law that governs the courts."
The process in Ontario to be followed in dealing with non-suit in the civil courts is that a defendant may bring a motion for non-suit at the conclusion of the plaintiff's evidence. Such a motion is in effect an assertion that the plaintiff has not made a case to which the defendant need respond.
The trier of fact is then required to ask the defendant whether or not they are electing to call evidence. See "The Law of Evidence" at page 139. If a defendant chooses not to, then the trier of fact will rule on whether there is any evidence that would satisfy a reasonable person of the plaintiff's case.
If a defendant elects to call evidence then the trier of fact will not rule on the motion. Rather, he or she will reserve a decision until all evidence in the case has been adduced.
It will be the unusual case where a defendant elects not to call evidence. The reasons are obvious. As the "Law of Evidence" explains at page 140:
It is rare that a defendant's counsel will elect to call no evidence if he or she has evidence to call, because, if the trial judge dismisses the motion for non-suit, then the defendant is precluded from leading evidence for the purpose of raising a defence to the plaintiff's case. Therefore, defendant's counsel must be sure of his or her success on the motion for a non-suit before making such an election.
It is perhaps for this reason that such applications are seldom seen in police disciplinary proceedings. We certainly anticipate that this will continue to be the situation.
For the above reasons this appeal is denied and the matter remitted to the Hearing Officer to continue with the disciplinary hearing.
DATED AT TORONTO THIS 6TH DAY OF MAY 2004.
Murray W. Chitra Member, OCCPS
Peter J. Doucet Chair, OCCPS