Detective Constable James Buckle v. Ontario Provincial Police, 2004 CanLII 77202

ONTARIO CIVILIAN POLICE COMMISSION

DATE:

December 14, 2004

FILE:

OCPC-04-013

CASE NAME:

DETECTIVE CONSTABLE JAMES BUCKLE AND THE ONTARIO PROVINCIAL POLICE

IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED

BETWEEN:

Detective Constable James Buckle

APPELLANT

-and-

Ontario Provincial Police

RESPONDENT

DECISION

Panel: Murray W. Chitra, Chair Peter J. Doucet, Member

Hearing Date: Monday, September 20, 2004

Hearing Location:

Appearances:

Gavin J. May, Counsel for Detective Constable James Buckle

Ted Carleton, Counsel for Ontario Provincial Police

I. Introduction

1. This is an appeal brought under section 70(1) of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”) by Detective Constable Buckle. It is against decisions of retired Superintendent R.J. Fitches (the “Hearing Officer”) dated November 12, 2003 and March 5, 2004.

2. Both decisions denied preliminary motions filed on behalf of Detective Constable Buckle to dismiss a disciplinary charge for failure to meet a limitation requirement.

II. Background

3. On October 25, 1997 there was a fire in the property room of the Ontario Provincial Police Drug Enforcement Unit in North Bay.

4. On September 16, 1998 a notice of hearing was issued against Detective Constable Buckle. It alleged that he had committed the disciplinary offence of discreditable conduct contrary to section 2(1)(a)(xi) of O. Reg. 123/98 (the “Code”).

5. The specific allegations against Detective Constable Buckle were that:

• [his] actions caused the fire,

• [he] allowed the fire to continue and cause significant damages to the facility and numerous exhibits; and

• [his] actions and words caused investigators to believe the fire had been the result of spontaneous combustion.

6. Detective Constable Buckle denied these allegations.

7. His lawyer filed a preliminary motion with the Hearing Officer that was argued on October 30, 2003. Essentially, it asserted that the disciplinary charge should be dismissed for failure to meet the requirements of section 69(18) of the Act.

8. That provision states:

69(18) If six months have elapsed since the facts on which a complaint is based first came to the attention of the chief of police ..., no notice of hearing shall be served unless … the Commissioner … is of the opinion that it was reasonable, under the circumstances, to delay serving the notice of hearing.

9. In a decision issued November 12, 2003 the Hearing Officer concluded that the notice of hearing had been served in a timely manner and dismissed the motion.

10. On March 4, 2004 counsel for Detective Constable Buckle brought a supplemental preliminary motion. It requested that the Hearing Officer reconsider his earlier decision in light of newly discovered information. On March 5, 2004 the Hearing Officer confirmed his ruling of November 12, 2004.

11. It is these two decisions that are the subject of this appeal. The hearing against Detective Constable Buckle remains on hold pending our determination.

Issues

12. This case raises two questions.

13. The first is whether or not this appeal under section 70(1) of the Act is premature. Assuming that this is not the case, the second question is whether or not the Hearing Officer was correct in his determination that the notice of hearing was served on Constable Buckle in a timely manner.

III. Decision

14. Disciplinary proceedings against police officers are administrative law processes of an employment nature. The procedures to be followed are set out in both statute and common law.

15. Police officers accused of employment related misconduct receive a hearing. Such hearings are held in accordance with the requirements of Part V of the Act and the provisions of the Statutory Powers Procedure Act R.S.O. 1990, c.22 as amended.

16. It is inevitable that during the course of a hearing that disputes will arise between parties. Such disagreements can concern a wide range of issues including the proper interpretation of the law as applied to particular facts. It is expected that a Hearing Officer will address such disputes and provide appropriate rulings.

17. What remedies are available to a party who is not satisfied with such a ruling?

18. There are two possible choices. The first is judicial review. The second is a statutory appeal under section 70(1) of the Act.

19. Judicial review is an appeal to a superior court to correct an error made by a subordinate authority. Such applications in Ontario are governed by the Judicial Review Procedure Act R.S.O. 1990, c. J.1. That statute permits any party to apply to Divisional Court for “relief”. This can include an order that any ruling of a tribunal be set aside.

20. An application for judicial review can be made notwithstanding any statutory right of appeal. Further, the bringing of such an action does not automatically “stay” the continuation of the proceeding that gave rise to the application. A separate application for a “stay” must be brought to the court.

21. Generally, courts prefer to have the hearing before a tribunal completed prior to entertaining such applications. However, in certain situations the courts will judicially review an interim ruling in an ongoing proceeding. This arises where:

22. there is an absence of jurisdiction;

23. bias exists;

24. there is an abuse of process; or

25. some other special circumstances exist giving rise to a real risk of injustice or fundamental unfairness.¹

26. In the case at hand, counsel for Detective Constable Buckle takes the position that the Hearing Officer had no jurisdiction to proceed with the disciplinary hearing because of a failure to meet a statutory limitation period.

27. Certainly, given the above, there is no doubt in our mind that the decisions of the Hearing Officer of November 12, 2003 and March 5, 2004 could have been the subject of an application for judicial review.

28. However, Detective Constable Buckle did not choose this remedy. Instead he has elected to challenge these decisions by way of a statutory appeal under section 70(1) of the Act. It provides:

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

25. This section has been the subject of several recent Commission decisions. A number deal with the question of what constitutes proper notice or how to calculate the 30-day appeal period.² Others deal with what types of decisions may be appealed.³

26. There is no dispute that notice was given to Detective Constable Buckle of the Hearing Officer’s two rulings. Further, it is clear that Detective Constable Buckle filed his appeal with the Commission within 30 days of receiving such notice. The issue before us therefore, is limited to whether the two rulings are the proper subject of an appeal.

27. On the broader question of statutory appeals there are two general observations worth making. First, the Commission is a creature of legislation. Unlike Divisional Court the Commission has no inherent jurisdiction and may only exercise powers granted to it by the Legislature. Thus any appeal to the Commission must fall within the clear wording of section 70(1).

28. Second, in contrast to applications for judicial review, the filing of a statutory appeal with the Commission has the effect of automatically staying the proceeding before the Hearing Officer.

29. Section 25(1) of the Statutory Powers Procedure Act reads:

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

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

(2) An application for judicial review under the Judicial Review Procedure Act, … is not an appeal within the meaning of subsection (1).

30. As such, the filing of this appeal by Detective Constable Buckle has resulted in an automatic stay of the disciplinary proceedings against him.

31. There have been no cases before the courts that have considered whether preliminary rulings may be the subject of a statutory appeal under section 70(1) of the Act. There have been however, some cases concerning the Ontario Human Rights Commission and former Board of Inquiry under the Police Services Act that provide useful guidance.

32. We refer specifically to Roosma et al. v. Ford Motor Company Co. of Canada et al. (1988), 1988 CanLII 5633 (ON HCJDC), 66 O.R. (2d) 18 (Ont. Div. Ct.), McCann v. Ontario (Police Services Board of Inquiry) [1994], O.J. No. 202 (Ont. Div. Ct.) and Re Ontario Human Rights Commission et al. and Ontario Teachers Federation et al. (1994), 1994 CanLII 10578 (ON CTGD), 19 O.R. (3d) 371 (Ont. Div. Ct.).

33. The leading authority is Roosma. It establishes the proposition that a statutory right of appeal can be invoked only where the ruling being appealed from is final (as opposed to interlocutory). This principle was adopted by Divisional Court in McCann for appeals of rulings of the Board of Inquiry under what was section 98(1) of the former Act.

34. Recently, in Younan and Ontario Provincial Police the Commission agreed that this was the appropriate principle to apply to statutory appeals under Part V of the current Act. We specifically stated at page 2 of that decision that “We agree that the wording of section 70(1) limits our jurisdiction to appeals of final orders.”

35. The question for us then becomes whether or not the rulings of the Hearing Officer on November 12, 2003 and March 5, 2004 were final?

36. There have been many cases over the years that have attempted to give some assistance to parties in civil proceedings in Ontario in determining what constitutes a final as opposed to an interlocutory ruling. The law in this area is complex, difficult and sometimes obtuse.

37. On this point, the decision of the Divisional Court in Re Ontario Human Rights Commission et al. is helpful. Pages 377 to 378 of that decision articulate the various elements to be taken into account when assessing a ruling to determine whether or not it is final.

38. First, the ruling must dispose of a claim or issue. Second, the claim or issue must be the real matter in dispute between the parties as opposed to a collateral concern. Thus, a decision may be determinative of a question raised but will still be interlocutory if the merits of a case remain to be decided. Third, the decision must dispose of a “substantial issue” between the parties. Depending on the number of parties involved, a hearing may generate more than one final order.

39. As well, a ruling may have a different character depending upon its impact on a particular party. An example of this was provided in Roosma and noted with approval in Re Ontario Human Rights Commission et al. At page 28 of Roosma Mr. Justice Reid stated:

The accepted test of a final decision or order depends on its effect, not on the proceedings by which it was achieved. It is final if it disposes finally of a claim or issue. An interlocutory decision does not …

Thus, on an interlocutory motion a decision may be made to release a party from the proceedings. That is a final or decision because it ends a party’s involvement in the proceedings. It is quit of them. But a decision that a party may not be released is not a final one for that party is not quit of the proceedings. This is the accepted test.

40. How do these principles apply to the facts of the case before us?

41. On October of 2003 and March of 2004 Detective Constable Buckle brought preliminary motions before the Hearing Officer asking that he be released from disciplinary proceedings because of an alleged failure to comply with statutory notice requirements. He was not successful. The ruling of the Hearing Officer disposed of the question raised by Detective Constable Buckle. However, the essential disciplinary misconduct allegations against him remain outstanding. The merits of the case against him are undecided. He is not quit of the proceedings.

42. As such, we believe that this appeal is premature. Given our lack of inherent authority, we feel that we have no jurisdiction to examine these preliminary rulings in the same manner as Divisional Court on judicial review.

43. Barring such an application (and the granting of a stay by the Court) the disciplinary hearing against Detective Constable Buckle must proceed. In the event that he is convicted and elects to appeal then he is free to raise these matters again.

DATED AT TORONTO THIS 14^TH DAY OF DECEMBER, 2004.

Murray W. Chitra Peter J. Doucet

Chair, OCCPS Member, OCCPS

Footnotes

1. 1McCaulay & Sprague, “Practice and Procedure Before Administrative Tribunals”, Vol. 3., p. 28/97.
2. 2See Sipar and Schertzer et al. (29 November, 1999, O.C.C.P.S.) and Brannagan and Peel Regional Police Service (25 August, 2003, O.C.C.P.S.).
3. 3See Cate and Peel Regional Police Service (2 October, 2001, O.C.C.P.S.) and Younan and Ontario Provincial Police (6 May, 2004, O.C.C.P.S.)