Ontario Civilian Police Commission Decision on a Preliminary Motion
OCPC-#10-04
Sergeant Ross Needham Appellant (Respondent on Motion)
Toronto Police Service Respondent (Applicant on Motion)
Presiding Member: Murray W. Chitra, Chair
Written Submissions: Ian Solomon, Counsel for the Respondent (Applicant on Motion)
Background:
This is a motion brought by the Toronto Police Service for an order dismissing an appeal by Sergeant Ross Needham for failure to file that appeal within 30 days as required by section 70(1) of the Police Services Act R.S.O. 1990, c. P. 15 as amended (the "Act").
On May 6, 2009 Sergeant Ross Needham pled guilty to one count of discreditable conduct contrary to section 2(1)(a)(ix) of Ontario Regulation 123/98. His plea was accepted by the Hearing Officer, Superintendent Jane Wilcox.
On September 9, 2009 Superintendent Wilcox issued a decision imposing a penalty of forfeiture of 15 days or 120 hours off on Sergeant Needham. He was served with a copy of that decision.
Mr. Lawrence Ben-Eliezer, counsel for Sergeant Needham, filed a notice of appeal of the penalty with the Registrar of the Ontario Civilian Police Commission (the "Commission") on October 13, 2009 at 5:28 pm by fax.
In a covering letter, Mr. Ben Eliezer wrote:
Sergeant Needham instructed me to appeal from the sentencing decision of Superintendent Wilcox well in advance of the 30 day prescription. I received authorization to proceed with the appeal from the Police Association on or about October 1, 2009, but inadvertently failed to file the notice of appeal. I am therefore writing to request an extension of time to commence the appeal.
On October 15, 2009, Mr. Ben-Eliezer served the Toronto Police Service (the "Service") with a copy of his notice of appeal, also by fax.
The Commission brought to Mr. Ben-Eliezer's attention, a number of recent decisions concerning section 70(1). Subsequently, several attempts were made to confirm his intentions with respect to the appeal.
In the absence of a clear response, a prehearing teleconference was scheduled for April 28, 2010. Mr. Thomas Bell, Commission Counsel, was designated under section 21(5) of the Act and section 12.2 of the Commission's Rules of Practice (the "Rules") to preside.
Mr. Ben-Eliezer and Mr. Solomon, Counsel for the Service, were both informed by letter dated March 30, 2010 that the prehearing teleconference would commence at 10:00 am. Mr. Solomon appeared as required. Mr. Ben-Eliezer did not.
After waiting 10 minutes, the prehearing teleconference proceeded in Mr. Ben-Eliezer's absence. Mr. Solomon stated that it was the Respondent's position that Sergeant Needham's appeal had been filed out of time, the Commission lacked jurisdiction to grant an extension and the Service intended to bring a motion to quash the appeal.
As required by section 12(3) of the Rules, Mr. Bell prepared a report of the prehearing teleconference. A copy of this report was sent by email to Mr. Ben-Eliezer and Mr. Solomon on April 29, 2010.
Mr. Solomon filed the Service's motion on June 21, 2010. A copy of the motion, factum and record were served on Mr. Ben-Eliezer. On June 23, 2010 the Commission's Registrar advised Mr. Ben-Eliezer that the Commission intended to deal with the motion in writing and he was directed to serve and file his "response in addition to any factum or book of authority by Friday, July 16, 2010."
No response, factum or book of authorities was received from Mr. Ben-Eliezer.
Decision:
This motion is unopposed. It has merit.
Any police officer, who is the subject of discipline, may appeal to the Commission. However, section 70(1) of the Act makes it clear that any appeal must be filed "within 30 days of receiving notice of the decision being made after a hearing held by the chief ..."
This provision was recently modified. However, the effect is the same. Section 87(1) of the Act now reads that "A police officer ... may, within 30 days of receiving notice of the decision made after a hearing ... appeal the decision to the Commission ..."
Sergeant Needham was the subject of a disciplinary hearing that resulted in a penalty being imposed on September 9, 2009. He had notice of that decision the same day.
Mr. Ben-Eliezer filed an appeal with the Commission, on behalf of Sergeant Needham, at 5:28 pm on October 13, 2009. This was clearly beyond the 30 days contemplated by the Act. This is acknowledged by Mr. Ben-Eliezer. He requested an extension.
Such an extension is not permitted by the Act. This is reflected in several Commission decisions issued over the past twelve years. These include Hegney and Metropolitan Toronto Police Service (January 29, 1998, O.C.C.P.S.), Farrell and Durham Regional (February 11, 1999, O.C.C.P.S.), Sipar and Schertzer et al (November 29, 1999, O.C.C.P.S.), Orr and York Regional Police Service (June 29, 2001, O.C.C.P.S.), Jander and Toronto Police Service (November 3, 2009, O.C.C.P.S.) and Kerr and Bennet and Belleville Police Service (November 3, 2009, O.C.C.P.S.).
One of the most recent of these decisions also concerned a Toronto Police Service officer. In Jander and Toronto Police Service, the Commission stated at page 3:
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.
The same logic would apply here.
Sergeant Needham's appeal was filed beyond the clearly established limitation period. The Commission has no authority to extend that period. Given the failure to meet a mandatory statutory precondition, the Commission has no jurisdiction to hear Sergeant Needham's appeal.
For the above noted reasons, this motion is granted and the appeal dismissed.
DATED AT TORONTO, THIS 5TH DAY OF AUGUST, 2010
Murray Chitra Chair