OCPC-09-14
ONTARIO CIVILIAN POLICE COMMISSION
DECISION ON A PRELIMINARY MOTION
Citation: Jander v. Toronto Polcie Service 2009 ONCPC 11
CONSTABLE MICHAEL JANDER
Appellant
(Respondent on Motion)
TORONTO POLICE SERVICE
Respondent
(Applicant on Motion)
Presiding Members:
Murray W. Chitra, Chair
Zahra Dhanani, Member
Appearances:
Peter Thorning, Counsel for the Appellant
Ian Solomon, Counsel for the Respondent
Hearing Date: October 14, 2009
This is a motion brought on behalf of the Toronto Police Service for an order dismissing the appeal of Constable Michael Jander for failure to file a notice of appeal within 30 days as required by section 70 (1) of the Police Services Act, R.S.O. 1990 c. P. 15 as amended (hereinafter referred to as “the Act”).
Background:
On December 3, 2008, Constable Jander was found guilty of insubordination contrary to section 2(1)(b)(ii) of Ontario Regulation 123/98, following a hearing before Superintendent Jane Wilcox (the “Hearing Officer”).
On June 10, 2009, the Hearing Officer issued a decision detailing the penalty to be imposed on Constable Jander. That penalty was a reduction in rank from first- class constable to second-class for the period of one year. After that period, Constable Jander could be reclassified to first-class following an evaluation. Constable Jander was served with a written copy of this decision.
On July 21, 2009, Constable Jander’s Counsel filed with the Commission a notice of appeal. At this time, Counsel for Mr. Jander requested transcripts and exhibits related to the disciplinary hearing. On July 22, 2009, Constable Jander served a notice of appeal on the Toronto Police Service.
On July 23, 2009, Claire Hugh, Trials Assistant, at the Toronto Police Service Disciplinary Hearings Office informed Counsel for the Appellant that the notice of appeal had not been delivered within thirty days of the June 10, 2009 decision and therefore would not be able to produce transcripts until there was further direction from the Commission.
Applicant’s Position:
The Toronto Police Service relies on section 70 (1) of the Act, which states: A police officer or complainant may, within 30 days of receiving
notice of the decision made after a hearing held by the chief of
police under subsection 64 (7) or by the board under subsection 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 Applicant argued that the appeal period in this case commenced on June 10,
2009 and that the Appellant did not meet the 30-day requirement because he submitted notice on July 21, 2009, which is 11 days beyond the 30 days allotted in the Act.
The Applicant argued that the case law would support this finding. The Applicant particularly pointed to the case of Orr and York Regional Police Service (2001), 3
O.P.R. 1469 (O.C.C.P.S.) where the Commission granted a motion to dismiss an appeal where the notice of appeal was served one day after the time-frame contemplated by the Act.
The Applicant argued that Constable Jander had received the decision in writing and had reasonable opportunity to serve his notice of appeal within the statutory time period.
Respondent’s Position:
Counsel for Constable Jander did not submit any materials or make any arguments in response to this motion.
In the materials filed for the appeal by the Appellant, it is clearly stated that the Appellant received the penalty decision on June 10, 2009. It was also submitted by Counsel for the Appellant that there was an intention to pursue an appeal right from the date of the first decision on December 3, 2008.
Counsel for the Appellant submitted in his appeal materials that the reason for his late submission was a “medical condition”. There was no medical or other evidence provided by Counsel for the Appellant.
On the day before the hearing on the motion, October 13, 2009 at 4:00 p.m. Counsel for the Appellant faxed a letter to the Commission office stating: “we have reviewed the material from the City of Toronto solicitor…we do not intend to oppose his motion.”
Decision:
The Act does not contain a provision allowing for the extension of an appeal for any reason. The section of the Act that deals with appeals, section 70(1), very clearly articulates that the allotted time for submitting a notice of appeal to the Commission is 30 days.
Previous legislation granted discretion to the Commission to consider extension on the time provided for submitting a notice of appeal (Police Services Act 1990
R.S.O. 1990, c. P.15, section 63 (8)). This section was repealed with the proclamation of section 35 of the Police Services Amendment Act, 1997. The amendments introduced in 1997, expressly removed the Commission’s discretion to extend the time for filing appeals.
Hegney and Metropolitan Toronto Police Service (1998), 3 O.P.R. 1218 (O.C.C.P.S.) was one of the first cases to look at the issue of an extension after the Act had been amended. In this case the motion to allow a late notice of appeal was denied. The principle to be upheld in this case was clearly articulated in that decision at page 1224: “Appeal periods exist in legislative schemes for a purpose: to ensure that in the normal course disciplinary matters are dealt with in an expeditious and orderly manner.”
Constable Jander was notified in writing on June 10, 2009 of the penalty decision. His counsel was also informed on this date. Not only was there reasonable time to submit the notice of appeal, there is nothing in the Act that allows for an extension on appeal.
We find that the Commission has no jurisdiction to hear Constable Jander’s appeal.
Accordingly, for the above noted reasons, we grant the motion and dismiss the appeal.
DATED AT TORONTO THIS 3rd DAY OF NOVEMBER, 2009.
Zahra Dhanani Murray W. Chitra
Member Chair