Constable Nicholas Phoenix v. London Police Service, 2012 CanLII 102112

OCPC #12-14

ONTARIO CIVILIAN POLICE COMMISSION

IN THE

MATTER OF

THE POLICE SERVICES

ACT, R.S.O.

1990,

C. P.15, AS

AMENDED

Citation: Phoenix v. London Police Service, 2012 ONCPC 14

BETWEEN:

CONSTABLE NICHOLAS PHOENIX

APPELLANT

-and-

LONDON POLICE SERVICE

RESPONDENT

DECISION ON MOTION

Panel:

Hearing Date:

David C. Gavsie, Chair

Dave Edwards, Vice-Chair

August 16, 2012

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, ON M7A 2T3

Tel: 416-314-3004

Fax: 416-314-0198

Website: www.ocpc.ca

Appearances

Adam Weisberg, Counsel for the Appellant

Introduction

1Const. Phoenix (also the "Appellant") brings a Motion (the "Motion") to obtain an order that the Commission has jurisdiction to hear the Appellant's appeal, despite the Commission being served late with a Notice of Appeal. The Respondent consents to such an order.

Decision

2For the reasons set out below, in the particular and unusual circumstances of this matter, including the fact that the Service consents to the Motion, and the direction of the Supreme Court of Canada to liberally interpret the Police Services Act (the "Act"), under the authority granted to us by Rule 3.4 of the Commission's Rules of Practice ("Rule" or "Rules"), we order that:

a. Rule 9.2 is hereby waived in this appeal with respect to the service of the Notice of Appeal on the Commission, and

b. Service by the Appellant of the Notice of Appeal on the Legal Branch of the Ministry of Community Safety and Correctional Services ("MCSCS") at 77 Grenville St., 8th Floor, Toronto Ontario M5S 1B3 is valid service on March 2, 2012 of the Notice of Appeal on the Commission.

Background

3The following information is taken from the factum of the Appellant and the affidavits of the Appellant, Dan Axford and Christopher Parsons.

4On August 25, 2011 the Appellant was found to have committed four counts of misconduct under the Act. Immediately upon hearing the decision the Appellant told Mr. Dan Axford, the Administrator with the London Police Association (the "Association"), that he wished to appeal. Mr. Axford advised him that he could not appeal until after the penalty decision was released and that he would have thirty days from that date to file his appeal.

5On February 6, 2012 the Penalty Decision was released. The Appellant was demoted to second class constable for six months. On February 14, 2012 the Appellant sent a document to Mr. Axford expressing his intention to appeal the decision and the penalty.

6The Association agreed to preserve the Appellant's right to appeal by serving and filing a Notice of Appeal within the thirty day period set out in s. 87(1) of the Act ("Appeal Period").

7Mr. Axford prepared and served the Notice of Appeal on the London Police Service (the "Service") on March 1, 2012. He then reviewed the Rules and incorrectly interpreted Rule 31.1 as directing that the appeal materials should be filed with the Commission care of MCSCS at 77 Grenville St., 8th Floor, Toronto, Ontario M5S 1B3.

8As a result on March 1, 2012 Mr. Axford couriered the Notice of Appeal to MCSCS at 77 Grenville St. 8th Floor, Toronto Ontario M5S 1B3.

9Const. Phoenix directed the Association to file an Amended

Notice of Appeal. This was served on the Service on March

8, 2012 and the same day the Association couriered it to the

Commission at the 77 Grenville St. address.

10The Association filed the appeal materials on the basis that the Appellant was a self-represented litigant which it was assisting, while the Association determined whether it would fund the appeal.

11On May 31, 2012 it came to Mr. Axford's attention that the Commission had not received the Notice of Appeal. Subsequently he determined that the Notice of Appeal and other materials had been forwarded to MCSCS Legal Services at 655 Bay St. on March 6, 2012. The party to whom these materials were assigned did nothing with them. Following a request by Dan Axford on June 4, 2012 the materials were forwarded to the Commission.

Appellant's Submissions

12In his submissions, Mr. Weisberg submits that the Appellant was entirely blameless in this matter. The Association had undertaken to protect his right to appeal by serving and filing the Notice of Appeal in accordance with the Act.

13He requests an order that this Commission has jurisdiction to hear the appeal, despite the late service of the Notice of Appeal on the Commission. He confirms that the Service consents to such an order.

14He notes that the Statutory Powers Procedure Act (the "SPPA") applies to disciplinary appeals. Section 32 of the SPPA provides that it prevails over other statutes of the Ontario Legislature. Further, s. 4.1 of the SPPA provides that any procedural requirement of the SPPA or any other statute of the Ontario Legislature may be waived with the consent of the parties and the tribunal.

15He asserts that the Appeal Period is procedural in nature and therefore can be waived with the consent of the parties and the tribunal.

16He cites several cases to support the position that the Appeal Period is procedural in nature: Derivative Services Inc. v. Investment Dealers Association of Canada, [2001] O.J. No. 1595 (Div Ct), KC v. College of PHyscial Therapists of Alberta, [1098] AJ No 99(CA) and PPF Inestments Inc. v. Oakville (Town), [2010] OJ No 186 (Div Ct).

17He asserts that the right of appeal is a self-standing right and is contained within s. 87(2) of the Act, as the Commission is obligated to hold a hearing once it receives the notice referred to in s. 87(1) of the Act.

18Mr. Weisberg submits that the cases support the position that if there is ambiguity in the statute, then one must look to the object of the statute. Where professional discipline is at stake the ambiguity should be settled in favour of determining the matter to be procedural; thereby giving the power to the tribunal to deal with the issue.

19He notes that prior to the amendments to the Act in 1987 the Commission had the power to extend the time for filing of the Notice of Appeal. This right was removed in 1987 and at the same time the SPPA was made applicable to disciplinary appeals. He submits that this makes it clear that the Commission has the right, under s. 4(1) of the SPPA, on the consent of the parties, to extend the time for filing of the Notice of Appeal.

20He also asserts that s. 23 of the SPPA gives the Commission the power to make orders with respect to matters before it as it considers proper to prevent abuse of its processes. He submits that it would amount to an abuse of our process if the Appellant's appeal fails due to the Association's error.

21Mr. Weisberg argues that we have the power to make the requested order, and given that the Appellant is blameless in the circumstances, it would be appropriate for us to exercise that discretion.

Respondent's Position

22In advance of the Motion the Service provided a letter to the Commission advising that it consents to the Motion and that it would not be appearing in person for the Motion.

Reasons for Decision

23In our view three issues arise on this Motion:

a. Does the Commission have the statutory authority to make an order waiving compliance with s. 87(1) of the Act?

b. If the Commission has statutory authority to waive compliance with s. 87(1) of the Act, in the circumstances should it exercise its discretion?

c. If the Commission does not have statutory authority to waive compliance with s. 87(1) of the Act, does the Commission have the power to make any order with respect to this matter?

24In assessing these issues it is important to consider the direction given by the Supreme Court of Canada in Regina Police Association Inc. and City of Regina Board of Police Commissioners 2000 SCC 14, [2000] 1 S.C.R. 360 (S.C.C.) at para. 34. We are directed to apply "...a more liberal interpretation of the scheme governing the relationship between the parties..." and "...the legislature has shown its intention to have all matters relating to discipline governed by The Police Act and Regulations. It has attempted to provide a comprehensive scheme for both the investigation and adjudication of such disputes."

25The Ontario Court of Appeal in Re: Abbot and Collins (2003), 2003 CanLII 46127 (ON CA), 64 O.R. (3d) 789 (Ont. C.A.), at para. 27 adopted the reasoning in Regina Police Association, supra, and concluded, "I see no basis on which to distinguish the analysis and conclusion reached by the Supreme Court in the Saskatchewan case from this case and the Ontario scheme for police discipline."

26As the Commission noted in Provincial Constable Terry Richardson and Ontario Provincial Police (May 23 2012, OCPC) at para. 42:

The fact that the Commission is a creature of statute must govern the "liberal interpretation" of the Act to insure that violence is not done to the Act and the intention of the Legislature. The Supreme Court impliedly acknowledges this restriction when it clarified that the purpose of avoiding formalistic interpretations of the provisions of the Act is that to do otherwise "...would deny the Commission jurisdiction where it was clearly the intention of the legislature that the Commission hear the dispute", Regina Police Association, supra, at para. 34.

27With this framework in mind we turn to the first question raised by the Appellant on this Motion:

Does the Commission have the statutory authority to make an order waiving compliance with s. 87(1) of the Act?

28The nub of this issue is whether the Appeal Period is procedural or substantive in nature. If it is procedural in nature, then under s. 4(1) of the SPPA, with the consent of the parties and the tribunal, compliance with the Appeal Period could be waived. If it is substantive in nature, as this Commission is a creature of statute without inherent jurisdiction, it would be powerless to order the relief sought.

29In K.C. v. College of Physical Therapists of Alberta, supra, the Alberta Court of Appeal considered the nature of a time limit relative to a right of appeal. A physical therapist who has a disciplinary proceedings brought against him or her may appeal the disciplinary finding. The right of appeal is contained in section 64 of the Physical Therapy Profession Act ("PTPA"):

(1) An investigated person or the College may appeal to the Court of Appeal any finding or order made by the Council under section 63.

(2) An appeal under this section shall be commenced

(a) by filing a notice of appeal with the Registrar of the Court at Edmonton or Calgary, and

(b) by serving a copy of the notice of appeal

(i) on the Council where the investigated person is the appellant, or

(ii) on the investigated person where the college is the appellant,

both within 30 days from the date on which the decision of the council is served on the appellant.

30The Court held that s. 64(1) creates the right of appeal which is not conditional on the happening of any other event. Section 64(2) provides how to commence the appeal, and within that provision the time limits for filing and service are described.

31Turning to the nature of the time period the Court at para.

12 stated:

... The right to appeal is not clearly conditional as it was in Yorkshire Trust. To interpret this statute as conferring an absolute right of appeal, with procedural steps to which the rules of court apply, is a reasonable interpretation. In my view, that is the best interpretation.

32In Derivative Services Inc. v. Investment Dealers Assn. of Canada, supra, the Ontario Divisional Court examined the right to appeal rulings by the Ontario District Council of the Investment Dealers Association of Canada, which right of

appeal is described in s. 21.1(1) and s. 21.1(2) of the

Commodity Futures Act (the "CFA"):

s. 21.1(1) The Executive Director or a person or company directly affected by, or by the administration of a direction, decision, order or ruling...may apply to the Commission for a hearing and review of the direction, decision, order or ruling.

s. 21.1(2) Section 4 applies to the hearing and review of the direction, decision, order or ruling in the same manner as it applies to a hearing and review of a decision of the Director.

33Section 4(2) of the CFA provides:

Any person or company directly affected by a decision of the Director may, by notice in writing sent by registered mail to the Commission within thirty days after the mailing of the notice of decision request and be entitled to a hearing and review thereof by the Commission.

34The Court considered whether the thirty day period described in s. 4(2) is procedural or substantive in nature.

35It concluded that s. 21.1(1) creates the appeal right and that s. 21.1(2) imports the procedural provisions of s. 4(2) into the process. The right of appeal is a self-standing right. The time period is a separate procedural matter.

36At para. 11 the Court found that "...[a]t worst ... the provisions would be ambiguous, and in such case, the appellant should have the advantage of the more favourable interpretation provided this does not conflict with the object of the legislation". The time period was therefore procedural in nature.

37In PPF Investments Inc. v. Oakville (Town), supra, the Ontario Superior Court examined the right of appeal under the Assessment Act which provides:

43.1(1) An appeal lies from the Assessment Review Board to the Divisional Court, with leave of the Divisional Court, on a question of law.

Time for appeal

An application for leave to appeal under this section shall be made within 30 days of the mailing of the decision of the Assessment Review Board.

38Relying upon Derivative Services Inc., supra, the Court held that the fact that the thirty day time limit contained in the statute does not preclude it from being a procedural time limit that the Court may extend.

39The cases which the Appellant cited in support of the position that the Appeal Period are procedural in nature all have one common element. The right of appeal is established in one subsection and the time period is contained another, Derivative Services Inc., K.C. and PPF Investments Inc, supra.

40Yorkshire Trust Co. v. Mallet (1986), 1986 ABCA 97, 71 A.R. 23 (Alta. C.A.) stands in contrast to those cases. Here the Court examined s.6(1)(b) of the Reciprocal Enforcement of Judgments Act, R.S.A. 1980 c.R-6(1)(b), which states:

When a judgment is registered pursuant to an ex parte order.... the judgment debtor, within one month after he has had notice of the registration, may apply to the court to have the registration set aside

41The Court considered the nature of the one month time period and concludes that the appeal right is conditional

upon compliance with the one month time period. The time period was therefore substantive in nature.

42Turning to the motion before us, it is important to examine the language of s. 87(1) of the Act which provides

A police officer...may, within 30 days of receiving notice of the decision made after a hearing held under subsections 66(3), 68(5) or 76(9) by the chief of police... appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.

43Despite the Appellant's submission to the contrary, we find that the right of appeal for the Appellant is contained in s.

87(1) of the Act, and not s. 87(2), for it is only after compliance with s. 87(1) that the Commission under s.

87(2) is required to hold a hearing.

44We also note that the language of s. 87(1) of the Act and s.

6(1)(b) of the Reciprocal Enforcement of Judgments Act is very similar. In both the right of appeal and the time

period are contained in the same section.

45The right of appeal in s. 87(1) of the Act and the Appeal Period are inextricably connected. Just as in Yorkshire Trust, supra, the appeal right is conditional upon compliance with the Appeal Period. We find that the Appeal Period is substantive in nature.

46Accordingly, the first question must be answered in the negative. The Commission does not have the statutory authority to waive compliance with s. 87(1) of the Act.

47In light of the answer to the first question it is not necessary for the second question to be answered.

48The third and final question to be considered is:

If the Commission does not have statutory authority to waive compliance with s. 87(1) of the Act, does the Commission have the power to make any order with respect to this matter?

49The answer to this question is yes. Although the Commission does not have the power to make the requested order, the Commission does have the power, pursuant to Rule 3.4, to order that the actions taken by the Appellant during the Appeal Period to serve the Commission with the Notice of Appeal constitute service on March 2,

2012 of the Notice of Appeal on the Commission.

50Section 87(1) of the Act requires that the Appellant take a specific action within the Appeal Period to maintain his/her right to appeal, namely serve the Commission with a notice of appeal. This step is substantive in nature and the Commission is powerless to waive compliance with it.

51The Act does not prescribe how this step must be satisfied.

How service is to be completed is left to the Commission to determine and we find it is procedural in nature.

52Section 25.1(1) of the SPPA grants the Commission the power to make rules governing the practice and procedure before it.

53Rule 9.1 describes in a more fulsome way the documents which must be filed with the Commission.

54Rule 9.2 provides the address for filing documents with the

Commission.

55Rule 8.1 describes the various methods by which service may be undertaken and includes by courier. Rule 8.3 deems that service is effective on the second day after the document is given to the courier.

56Rule 3.4 states:

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.

57It is clear that the Appellant authorized the Association to file the Notice of Appeal within the Appeal Period. It is also evident that the Association attempted to serve the Notice of Appeal on the Commission during the Appeal Period. The error made by the Association was that it couriered the Notice of Appeal to the wrong address, contrary to the provisions of Rule 9.2.

58The courier received the Notice of Appeal on March 1, 2012.

Had the Notice of Appeal been sent to the correct address, then pursuant to Rule 8.3 it would be deemed to have been

filed with the Commission on March 2, 2012, well within

the Appeal Period.

59The facts of this matter are distinguished from other cases in which the question before the Commission was the effect of service of the Notice of Appeal upon the Commission outside of the Appeal Period. In all of those cases the Appellant did not attempt to serve the Notice of Appeal during the Appeal Period; rather the step required by the Act occurred outside of the Appeal Period: Sergeant Needham and Toronto Police Service (August 5, 2010), Hegney and Metropolitan Toronto Police Service (January

29, 1998, OCCPS), Farrell and Durham Regional (February

11, 1999, OCCPS), Sipar and Schertzer et al. (November

29, 1999, OCCPS), Orr and York Regional Police Service

(June 29, 2001, OCCPS), Jander and Toronto Police Service (November 3, 2009, OCCPS) and Kerr and Bennett and Belleville Police Service (November 3, 2009, OCCPS).

60In the matter before us it is clear, that within the Appeal Period the Appellant attempted to serve the Commission with a written notice stating the grounds of appeal.

61The Appellant complied with the substantive aspect of s.

87(1) of the Act. However, he failed to comply with Rule

9.2.

62As noted above the Commission has the power under Rule

3.4 to waive or vary any of its Rules. We find this is an appropriate case in which to exercise our power under Rule

3.4 and we waive the application of Rule 9.2 with respect to the service of the Notice of Appeal on the Commission.

Decision

63Accordingly, in the particular and unusual circumstances of this matter, including the fact that the Service consents to the motion, and the direction of the Supreme Court of Canada to liberally interpret the Act, under the authority granted to us by Rule 3.4, we order that:

a. Rule 9.2 is hereby waived in this appeal with respect to the service of the Notice of Appeal on the Commission, and

b. Service by the Appellant of the Notice of Appeal on the Legal Branch of MCSCS at 77 Grenville St., 8th Floor, Toronto Ontario M5S 1B3 is valid service on March 2,

2012 of the Notice of Appeal on the Commission.