ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
Sergeant Michael Younan
APPELLANT
-and-
Ontario Provincial Police
RESPONDENT
DECISION
Panel: Murray W. Chitra, Chair Peter J. Doucet, Member
Hearing Date: April 2, 2004
Hearing Location:
Appearances:
Gavin J. May, Counsel for the Appellant
Ted Carlton, Counsel for the Respondent
I. Introduction
- 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.
II. 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.
III. 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