OCPC-09-13
ONTARIO CIVILIAN POLICE COMMISSION
DECISION ON A PRELIMINARY MOTION
OWEN KERR Appellant (Respondent on Motion)
CONSTABLE TODD BENNETT Respondent (Applicant on Motion)
BELLEVILLE POLICE SERVICE Respondent on Appeal and Motion
Presiding Members: Noëlle Caloren, Member Garth Goodhew, Member
Appearances: Owen Kerr, Self-Represented Harry Black, Q.C., Counsel for Constable Todd Bennett Kevin Inwood, Counsel for the Belleville Police Service
Hearing Date: October 16, 2008
This is a motion brought on behalf of Constable Todd Bennett for an order dismissing the notice of appeal of Mr. Owen Kerr for failure to comply with the appeal timeline set out in section 70(1) of the Police Services Act R.S.O. 1990 c. P.15 as amended (the "Act") and the provisions of sections 8.1 and 8.2 of the Ontario Civilian Police Commission's Rules of Practice (the "Rules"). At issue is the question of whether this Commission has the jurisdiction to hear Mr. Kerr's appeal.
Background:
This motion relates to a chronology of events which can be tracked from a review of the documentary evidence filed by the parties. The sequence of events is uncontrovertible.
On October 14, 2004, Mr Kerr lodged a complaint with the Belleville Police Service against Constable Bennett and another officer for alleged misconduct. He also filed a complaint with the Ontario Human Rights Commission based on the same facts.
Mr Kerr's allegations were investigated by the Belleville Police Service which determined them to be unsubstantiated. Mr. Kerr then requested that the Commission review the Service's decision. This review occurred on April 15, 2005 and the Commission directed that a hearing be conducted into Constable Bennett's alleged misconduct. The Commission further directed that the hearing involve an outside prosecutor and an external hearing officer. A notice of hearing for this purpose was issued on June 3, 2005.
This hearing was not held because Mr. Kerr, the Service, Constable Bennett, the other involved officer, and the Ontario Human Rights Commission reached a settlement within the context of the human rights complaint. As part of the settlement, Mr Kerr agreed to the terms of and executed a Release discharging Constable Bennett and the Service from "all present or future complaints or causes for complaint under the Human Rights Code and any grievances, actions, causes of action, claims and demands of every kind or nature whatsoever, except under the Criminal Code, existing up to the present time". Mr. Kerr signed the Release on or about June 6, 2007.
On September 14, 2007, Counsel for Constable Bennett brought a motion to stay the directed disciplinary proceedings on the basis of the settlement reached in the human rights complaint. The appointed Hearing Officer in the directed hearing, Superintendent Kalinski, rendered an oral ruling staying the proceedings against Constable Bennett. Superintendent Kalinski's written decision was issued on November 4, 2007 and sent by e-mail on November 5, 2007 to Mr. Inwood, the appointed prosecutor in the directed hearing, for dissemination to the parties.
The evidence filed in support of this motion establishes that on that same day, Mr. Inwood sent Superintendent Kalinski's decision to Constable Bennett's Counsel and to Mr. Kerr by e-mail. On November 8 and again on November 19, 2007, Mr. Inwood e-mailed Mr. Kerr to confirm his receipt of the decision. On November 22, 2007, Mr. Kerr e-mailed Mr. Inwood confirming receipt of Mr. Inwood's first e-mail and the attached decision, which he specifically confirmed he had no difficulty opening. In the interim, on November 21, Superintendent Kalinski's written decision was sent to Mr. Kerr via registered mail. On December 4, 2007, Mr. Kerr refused to accept delivery of the package containing the decision.
Mr. Kerr's notice of appeal of Superintendent Kalinski's decision was filed with this Commission on January 8, 2008. Constable Bennett first received a copy of the Notice on February 1, 2008 when he opened mail he had picked up at Belleville Police Service Headquarters.
Issue:
The sole issue to be determined is whether Mr. Kerr's notice of appeal was filed with the Commission and served on Constable Bennett within the statutory time frame set out in section 70(1) of the Act and in accordance with sections 8.1 and 8.2 of the Rules.
Applicant's Position:
It is the position of the Applicant, Constable Bennett, that Mr. Kerr neither served his notice of appeal on him, nor filed it with the Commission within 30 days of receipt of the notice of decision, as mandated by section 70(1) of the Act and section 8.1 of the Rules. Constable Bennett argued on this basis that the Commission has no jurisdiction to hear Mr. Kerr's appeal as the statutory time limit is mandatory.
Alternatively, Constable Bennett urged the Commission not to exercise the discretion which it has under section 3.4 of the Rules to waive or vary the time limit set out in the Rules. He argued that the exception that might be made where an Appellant is unsophisticated does not apply in this instance.
Finally, Constable Bennett submitted that no arguable issue has been raised by the Appellant. In this respect, he pointed out that the notice of appeal fails to meet the requirements of Rule 8.2 as it does not set out any grounds for appeal and that the appeal materials filed by Mr. Kerr focus on irrelevant considerations such as the process of issuing an information or a summons under the Criminal Code and the test for committing an accused to stand trial.
Respondent Police Service's Position:
The Belleville Police Service has filed its own affidavit evidence detailing the chronology of events following the release of Superintendent Kalinski's reasons and supports Constable Bennett's motion for a dismissal of Mr. Kerr's appeal. In addition to the jurisdictional argument, Mr. Inwood raised the fact that having been in receipt of Superintendent Kalinski's decision on November 5, 2007, Mr. Kerr had only until December 6, 2007, to serve the various affected parties and file his notice of appeal with the Commission.
Mr. Inwood pointed out that alternatively, accepting Mr. Kerr's November 22, 2007 e-mail as being the date upon which Mr. Kerr received notice of the decision, the notice of appeal filed by Mr. Kerr on January 8, 2008, was still nevertheless outside the 30 day time limit prescribed by the Act.
Counsel for both the Applicant and Respondent Police Service referred us to previous decisions of this Commission and several court decisions in support of their common position that the Commission has no jurisdiction to hear Mr. Kerr's leave to appeal/appeal as the thirty-day time limit is mandatory and cannot be extended. We were referred to Farrell and Durham Regional Police Service (1999), 3 O.P.R. 1323 (O.C.C.P.S.), Orr and York Regional Police Service (2001), 3 O.P.R. 1469 (O.C.C.P.S.), Williams and Durham Regional Police Service and Griepsma ( November 3, 2005, O.C.C.P.S.) as well as Re Milstein and Ontario College of Pharmacy (1976), 1976 CanLII 686 (ON HCJ), 72 D.L.R. (3d) 201 (Ont. Div. Ct.) in support of the argument that this Commission does not have jurisdiction to hear a leave to appeal application if the timeline stipulated in section 70(1) of the Act has not been complied with.
In support of the position that this Commission has no jurisdiction to extend the time limit for filing an appeal and that the failure to serve an affected party with a notice of appeal breaches natural justice and the right to procedural fairness, we were referred to Sipar and Metropolitan Police Service and Schertzer et al. (November 29, 1999, O.C.C.P.S.), Williams and Durham Regional Police Service and Griepsma (supra) and Re Milstein and Ontario College of Pharmacy (supra).
Respondent Owen Kerr's Position:
In reply to this motion, Mr. Kerr raised a series of points for our consideration. In particular, he urged us to take into account that throughout the appeal process he had been unrepresented; that he did not have a working knowledge of the Act or its requirements; that he did not have a thorough understanding of the time limit involved, based in part on his interpretation of the provisions of Rule 3.4 and the time limit in Criminal proceedings which he understood to be 60 days; that he served Constable Bennett by delivering the notice of appeal at the Belleville Police Service Headquarters on January 8th and had no explanation as to why Constable Bennett only received the notice on February 1st.
Finally, he alluded to the fact that he was provided with a hearing date for his appeal despite having filed his notice after the expiry of the 30 day time limit. In Mr. Kerr's mind, this suggested that the Commission would hear his appeal. As well, in support of his position that the Commission ought to hear his appeal, Mr. Kerr also alluded to what he termed the odious conduct of Constable Bennett which he suggested should not be overshadowed by procedural defects.
Decision:
Section 70(1) of the Act provides:
A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held by a 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 Commission has established Rules pursuant to the Statutory Powers Procedure Act R.S.O. 1990, c. S-22, as amended. Section 8.1 of these Rules states:
A police officer or 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.
In addition, Rule 3.4 of the Commission's Rules states that:
The Commission at any time may waive or vary any of these Rules, including time limits set out in these Rules, on such conditions as the Commission considers appropriate.
We note that the statutory provision refers strictly to the requirement that the Commission be notified of the intention of either a police officer or a complainant to appeal a hearing decision under section 64(7), while the Commission's Rules incorporate the additional requirement of service on the affected parties within the 30-day timeline.
Applying these provisions to this particular case, we must find that neither the Commission nor Constable Bennett were served with Mr. Kerr's notice of appeal within the prescribed thirty day timeline. Mr. Kerr did not contest the fact that he received Superintendent Kalinski's decision on November 5, 2007, and accordingly we find that he had until December 6, 2007, to serve the affected parties and this Commission with his notice of appeal. The notice of appeal was filed with the Commission on January 8, 2008, one full month outside the thirty day time limit prescribed by the Act. In addition, on the basis of Mr. Kerr's own evidence, Constable Bennett was not served with the notice of appeal until January 8th. Whether or not Constable Bennett only received the notice on February 1st is, in these circumstances, a moot point given that service on the affected police officer was effected one full month outside the prescribed time limit.
We also note that it took Mr. Kerr over 60 days to file his Notice of Appeal from the date he received Superintendent Kalinski's decision. He therefore cannot be said to have complied with the timeline he mistakenly believed was applicable in the circumstances.
Mr. Black and Mr. Inwood, in support of Constable Bennett's motion, have argued that the timelines for service of the notice of appeal are mandatory and cannot, or alternatively should not, be extended under section 3.4 of the Rules. We appreciate Mr. Kerr's submissions made on this issue, and the fact that he may not have been as knowledgeable as those who deal with policing issues and the Act on a regular basis. Nevertheless, this does not change the legal principles which apply here or raise a justification for calling into question their application to the circumstances of this case.
Section 70(1) of the Act requires that a party affected by a decision made pursuant to Subsection 64(7) of the Act serve on the Commission a Notice of Appeal within 30 days. The possibility of extending the 30-day timeline is not contemplated by the Act.
While Rule 3.4 provides for the possibility of varying time limits under the Commission's Rules, and can accordingly be used to extend the time requirements for service of a Notice of Appeal on a party, they cannot be applied to vary the timeline set out in Section 70(1) of the Act.
While we are not inclined to give much weight to the suggestion, advanced by the Applicant, that Mr. Kerr is a sophisticated litigant, the real issue here is the operation of the Act and the Rules which govern the Commission's practice for dealing with appeals. Unfortunately for Mr. Kerr, all appeals to this Commission, as meritorious as they may be, must be undertaken within the framework of the statutory procedural requirements and the Commission's Rules.
Accordingly, this case cannot be dealt with on its merits because of the procedural failings which have been explained and acknowledged by Mr. Kerr and the operation of the applicable legal principles. Pursuant to these principles, which are recognised in the cited case law, the Commission has neither the jurisdiction to hear Mr. Kerr's appeal or the jurisdiction to extend the time period for the filing of his appeal.
For these reasons, it is not necessary for this panel to consider Constable Bennett's arguments regarding the deficiency of the notice of appeal under Rule 8.2.
For the above-noted reasons, we therefore grant the motion and dismiss the appeal.
DATED AT TORONTO THIS 3rd DAY OF NOVEMBER, 2009
Noëlle Caloren Member
Garth Goodhew Member