ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
Sergeant Ray Wiggers
APPELLANT
-and-
Durham Regional Police Service
RESPONDENT
DECISION
Panel: Garth S. Goodhew, Member Murray W. Chitra, Chair
Hearing Date: January 25, 2010
Hearing Location:
Appearances:
David Butt, for the Appellant
Visha Sukdeo and Sheila Schweizer, for the Respondent
STAY OF PENALTY - Motion to lift automatic stay of penalty - Allegations against Appellant involving time theft - Appellant pled guilty to one count of discreditable conduct - Hearing Officer imposed penalty of one-year demotion and attached eight conditions to reinstatement order - Appellant’s motion supported by Respondent - Pursuant to Statutory Powers Procedure Act s. 25(1)(b) Commission has jurisdiction to lift an automatic stay pending appeal of a disciplinary penalty - Appropriate case for Commission to lift automatic stay - Motion granted.
SENTENCING - Penalties - Demotion - Motion to lift automatic stay of penalty pending appeal - Appellant demoted for period of one year from rank of Sergeant to First Class Constable - Hearing Officer also attached eight conditions to Appellant’s reinstatement to duty - Appellant abandoned appeal of demotion and wanted to begin serving demotion while pursuing appeal of conditions - Respondent supported request - Factors to consider in relation to request to lift a stay of penalty - Appeal neither frivolous nor vexatious - Appellant could be prejudiced if request denied - Consideration of the merits not adversely impacted by lifting the stay - Motion granted.
Summary of Reasons for Decision
Sergeant Wiggers, the Appellant, brought a motion for an order pursuant to s. 25(1)(b) of the Statutory Powers Procedure Act. The Appellant requested that the Commission lift the automatic stay of the penalty of demotion imposed by the Hearing Officer.
The Appellant was investigated for excessive use of leave and absenteeism. He acknowledged wrongdoing and told the service that he had a substance abuse problem. The Appellant was charged with one count of discreditable conduct. He pled guilty and admitted to 165 hours of “time theft”. The Hearing Officer imposed a one-year demotion from the rank of Sergeant to the rank of First Class Constable. Following the demotion the Appellant would revert to the rank of Sergeant. The Hearing Officer also attached eight conditions to the Appellant’s reinstatement to duty.
On May 4, 2009 the Appellant filed a notice of appeal from the penalty. The effect, pursuant to s. 25(1)(b) of the SPPA, was to automatically stay the penalty. On January 15, 2010 the Appellant filed a motion requesting that the Commission lift the automatic stay. The Respondent supported his request.
Held, motion granted.
Pursuant to s. 25(1) an appeal operated as a stay unless the “appellate body orders otherwise”. It was clear that the Commission had jurisdiction to decide whether to grant a request to lift an automatic stay. The Commission had considered such a request before in Kyle and York Regional Police Service (infra) and in that decision several criteria for considering such a request were identified.
Having regard to those criteria, the appeal in this case was neither frivolous nor vexatious. Sergeant Wiggers was not attempting to delay the penalty; rather he wanted to begin serving it right away. The service supported his request. Given the promotion practices of the service, the Appellant could be prejudiced if the request were denied, because the duration of his demotion could in effect be extended. Finally, lifting the stay would not adversely affect the Commission’s consideration of the merits of that portion of the appeal which remained, i.e. the conditions attached to the Appellant’s ongoing employment.
Accordingly, this was an appropriate case for lifting the stay.
Statutes cited
Statutory Powers Procedure Act R.S.O. 1990, c. S.22, as amended, s. 25(1)
Police Services Act R.S.O. 1990, c. P.15 as amended, ss. 64 and 70
Authorities cited
Kyle and York Regional Police Service (Nov. 29, 2002, OCCPS #02-10)