Williams v. Durham Regional Police Service, 2005 ONCPC 6

OCCPS #05-07

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Citation: Williams v. Durham Regional Police Service, 2005 ONCPC 6

DECISION ON A PRELIMINARY MOTION

DONALD A. WILLIAMS

Appellant

DURHAM REGIONAL POLICE SERVICE AND SERGEANT JIM GRIEPSMA

Respondents

Presiding Members:

Sylvia Hudson, Vice Chair

Noëlle Caloren, Member

Appearances:

Brian Fazackerley, Counsel for the Durham Regional Police Service

William MacKenzie, Counsel for Sergeant Jim Griepsma

Hearing Date: September 9, 2005

This is a motion brought on behalf of the Durham Regional Police Service for an order dismissing the appeal of Mr. Donald A. Williams for failure to comply with the requirements of subsection 70(1) of the Police Services Act, R.S.O. 1990 c. P.15 as amended (the “Act”) or alternatively, failure to comply with the provisions of section 8.1 of the Ontario Civilian Commission on Police Services’ Rules of Practice (the “Rules”). At issue is the question of whether or not we have jurisdiction to hear Mr. Williams’ appeal on account of this failure to comply.

Background:

On December 7, 2004, following a two-day hearing held pursuant to section 64(7) of the Act, Superintendent Greg Connolly (the “Hearing Officer”) dismissed two charges of misconduct against Detective Jim Griepsma flowing from a complaint by the Appellant. On the same date, the Hearing Officer gave a copy of his written decision and reasons to all the parties in attendance at the hearing.

Under cover of a letter dated January 4, 2005, Mr. Williams filed with the Ontario Civilian Commission on Police Services (the “Commission”) a “Request of an Appeal” from the decision of the Hearing Officer under section 70 of the Act. The “Request of an Appeal”, which was marked sent by fax and Xpresspost, was received by the

Commission on January 6, 2005. The document, which was signed by Mr. Williams, was also marked as being submitted by counsel for Mr. Williams, Mr. Dragi Zekavica.

The “Request of an Appeal” filed with the Commission did not include proof of service of the document on the affected parties. As a result, the Commission wrote to Mr. Williams’ counsel requesting the filing of an Affidavit of Service.

Ostensibly in response to the Commission’s letter, on January 12, 2005 Mr. Williams wrote to the Chief of Police, to the Prosecutor and to counsel for Sergeant Griepsma stating that “I sent out copies to each one of you by 1st class mail on January 4, 2005 and to insure (sic) that you have all receive (sic) it, as I am advised by Ms. Mary Camacho from OCCOPS I should sent (sic) out a further copy by registered mail”. In this communication, Mr. Williams confirmed that he was self-represented.

On January 14, 2004, the Commission received, by facsimile transmission, Affidavits of Service from Mr. Williams confirming that the “Letter of Appeal” and attached documents were served by first class mail on the Prosecutor at the hearing, the Durham Regional Police Service and counsel for Sergeant Griepsma, Mr. MacKenzie.

The evidence tendered by the Durham Regional Police Service in this motion suggests that its Legal Services Unit first received the “Request of an Appeal” on January 12,

2005. The document had been sent by regular letter mail.

Further, evidence tendered in support of this motion suggests that the Prosecutor at the hearing of Mr. Williams’ complaint first received Mr. Williams’ “Request of an Appeal” on January 13, 2005. The markings on the envelope indicated that the document had been sent by Canada Post Xpresspost.

The evidence tendered at this motion concerning service on the parties remains uncontroverted, as Mr. Williams failed to file any material in response to this motion, and opted not to appear at this proceeding.

Issue:

The sole issue to be determined is whether the parties were properly served with the

Notice of Appeal as required by subsection 70(1) of the Act, or alternatively, by section

8.1 of the Rules.

Arguments:

It is the position of the Respondent, the Durham Regional Police Service, that Mr. Williams failed to properly serve his Notice of Appeal on the Commission within the 30 days required by subsection 70(1) of the Act.

It is also the position of the Respondent that Mr. Williams failed to properly serve the Prosecutor and Sergeant Griepsma with his Notice of Appeal together with a Notice of Decision within 30 days, as required by section 8.1 of the Rules.

Finally, as an alternative argument, in support of his motion, counsel for the Durham Regional Police Service urged the Commission not to exercise its discretion under the Rules to forgive his late service on the affected parties in this case.

Decision:

Subsection 70(1) of the Act provides:

70(1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held under subsections 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.

The Act further provides at subsection 70(3):

70(3) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a complaint if the appeal is from a finding that misconduct or unsatisfactory work performance is not proved on clear and convincing evidence.

Mr. Fazackerley argued that unless the terms “served” in subsection70(1) and “receiving” in subsection 70(3) are interpreted to include a pre-condition of prior notice to the affected parties, the statute would require appeal hearings in situations where concerned parties might have no notice of an appeal whatsoever. He argued that such prior notice constitutes a substantive, not merely a procedural common law right of the parties, the violation of which the Commission does not have the jurisdiction to remedy.

Mr. Fazackerley argued that the implied pre-condition of prior service on the affected parties was not met given that the Prosecutor and Sergeant Griepsma were not served within the 30-day limitation period specified by the legislation. Counsel for the Respondent relied on subsection 77(2) of the Act which deems service by regular mail to have been received by the addressee on the fifth day after it is mailed. Applying this provision of the statute, the affected parties would not have been served until January 9, a date falling outside the 30-day statutory limitation period.

The crux of the Respondent’s argument as this Panel has understood it is that the Legislature did not provide the Commission with the discretion under subsection70(1) to dispense with service as such discretion has been provided to other decision-making bodies. In support of his argument, Mr. Fazackerley referred us to the appeal provisions of the British Columbia Court of Appeal Act R.S.B.C. 1996, c. 77 and those of the Federal Courts Act R.S.C. 1985, c. S-7.

While we recognize the attractiveness of Mr. Fazackerley’s argument with respect to the scope of subsection 70(1), we cannot agree that it is supported by the actual wording of the statutory provision, which appears to us to be clear on its face. Subsection70(1) specifically identifies the Commission as the only entity to be served with a Notice of Appeal within the 30-day limitation period. We note that the term “Commission” is defined under section 2 of the Act as meaning the Ontario Civilian Commission on Police Services. Section 77 of the Act on the other hand, which deals with the service of notices under the Act, appears to contemplate service on entities other than the Commission by direct reference to service on a “person” or a “board”. The wording used in section77 would suggest that if the Legislature had intended that service on the Commission should also include a pre-condition of prior notice to the affected parties, such parties would have been specifically identified in the provision.

The Respondent’s concern that in cases involving an appeal as of right as contemplated under subsections 70(2) and (3) of the Act, a hearing could proceed without any notice whatsoever on an affected party is also not of much significance in practical terms given the typical timelines involved in the scheduling of hearings and the inevitable communications which ensue between the Commission and the parties for the purposes of scheduling hearings.

Accordingly, for the above-noted reasons, we do not agree with the interpretation of the scope of subsection 70(1) which has been proposed by Mr. Fazackerley. However, our conclusion on this issue does not dispose the matter.

Mr. Fazackerley has also invoked the Rules of the Commission in support of his contention that Mr. Williams’ Notice of Appeal and Notice of Decision were not properly served on the Prosecutor and Sergeant Griepsma.

The Commission has established Rules pursuant to the Statutory Powers Procedure

Act R.S.O. 1990, c. S-22, as amended. Section 25.1 of that act provides:

25.1 A tribunal may make rules governing the practice and procedure before it.

(2) The rules may be of general or particular application.

(3) The rules shall be consistent with this Act and with the other Acts to which they relate.

Section 8.1 of the Commission’s Rules states:

8.1 A police officer or a complainant who appeals to the Commission under s. 70(1) of the Act shall deliver upon the other parties and the Commission, a Notice of Appeal together with a copy of the Notice of Decision within thirty days of receiving notice of the decision which is the subject of appeal.

Section 8.3 of the Commission’s Rules further requires a complainant to provide proof of service on the other parties to the Commission.

Under the Commission’s Rules therefore, a complainant who wishes to appeal must not only serve the Commission but must also serve notice upon the affected parties within

30 days. As this Commission noted in Sipar and Schertzer et al. (12 April, 1999, O.C.C.P.S.), the rule requiring service on the affected parties is a reflection of basic natural justice as individuals who might be affected by the appeal are entitled to be made aware of it.

Both the Act and the Commission’s Rules address the issue of service and when a served document is deemed to be received. The Commission’s Rules mirror the provisions of the statute in this regard in that section 12.3 of the Rules provides:

12.3 Service is deemed to be effective,

(a) by personal delivery before 4:00 p.m., on the day of delivery, and after that time, on the next day;

(b) by mail, on the 5th day after the day of mailing; (c) by fax, on the day after it was sent;

(d) by courier, on the second day after the document was given to the courier; or

(e) by any means authorized or directed by the Commission, on the date specified by the Commission in its direction.

Applying these provisions to this particular case, we must find that the Respondents were not served with the Notice of Appeal within 30 days as required by Rule 8.1. We also note in this regard that Mr. Williams did not file any material in response to the motion brought by the Durham Regional Police Service, nor did he attend at the hearing to present any evidence that would contradict the evidence tendered by the Respondent, Durham Regional Police Service.

By way of alternate argument, presumably in anticipation of Mr. Williams’ response to the motion, Mr. Fazackerley invited the Commission not to forgive the late service of the “Request of an Appeal”.

Indeed, under section 3.4 of the Rules, the Commission may waive or vary the time limits set out in the Rules on conditions that the Commission considers appropriate. While the Commission would therefore have the discretion to extend the 30-day limitation for service to accommodate what amounts to a very short delay in this case, we note that Mr. Williams made no such request. Furthermore, we note that Mr. Williams, having had ample opportunity to make submissions in this motion, expressly declined to do so and further opted not to appear at the hearing.

We acknowledge that there may be situations where the Commission ought to consider exercising its discretion in the absence of an express request, such as where a complainant is unsophisticated, has insufficient information to effect prompt service on

the affected parties, or where the delay in service is so small that it does not cause undue prejudice. No such circumstances present themselves in this case however.

To justify his decision not to file material or appear at the motion, Mr. Williams called into question the appropriateness of some of the evidentiary elements of the Durham Regional Police Service. Indeed, at the hearing, Mr. Fazackerley brought to our attention the lengthy history of these and other related proceedings, including the various discussions and manoeuvrings of the parties. However, it is our conclusion that these matters are not relevant for the purpose of the motion before us, and were therefore not taken into account by this Panel for the purposes of determining the outcome of this motion.

Accordingly for the above-noted reasons, we grant the motion and dismiss the appeal.

DATED AT TORONTO THE 3rd DAY OF NOVEMBER, 2005

Sylvia Hudson Noëlle Caloren

Vice-Chair, OCCPS Member, OCCPS