Constable Randy Johnson v. The City of Kawartha Lakes Police Service, 2012 CanLII 102123

OCPC-12-09

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C. P.15, AS AMENDED

2012 ONCPC 9

BETWEEN:

CONSTABLE RANDY JOHNSON

APPELLANT

-and-

THE CITY OF KAWARTHA LAKES POLICE SERVICE RESPONDENT

DECISION

Panel: David C. Gavsie, Chair

Zahra Dhanani, Member

Motion Date: May 23, 2012

Motion Location: Toronto, Ontario

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, Ontario M7A 2T3

Tel: 416-314-3004

Fax: 416-314-0198

Website: www.ocpc.ca

Appearances:

Constable Randy Johnson, Self-Represented Appellant

Glenn P. Christie, Counsel for The City of Kawartha Lakes Police Service

Introduction:

1. The City of Kawartha Lakes Police Service (the “Service”) brought this motion on the direction of the Ontario Civilian Police Commission (the “Commission”) requesting an order dismissing the appeal of Constable Randy Johnson (the “Appellant” or “Const. Johnson”) for failure to file a notice of appeal within 30 days as required by section 87 (1) of the Police Services Act, R.S.O. 1990, c. P. 15, as amended (“the Act”).

Background:

2. By Notice of Hearing dated July 14, 2010, Const. Johnson was charged with one count of Insubordination contrary to section

2(1)(b)(ii) of the Schedule to Part V of Ontario Regulation 123/98 under the Act (the “Code of Conduct”).

3. By Notice of Hearing dated September 15, 2010, Const. Johnson was charged with one count of Discreditable Conduct contrary to section

2(1)(a)(xi) of the Code of Conduct.

4. On October 31, 2011, Const. Johnson was found guilty of both charges following a hearing before Superintendent Neale Tweedy (Ret.) (the “Hearing Officer”).

5. On December 2, 2011 submissions as to sentence were heard by the Hearing Officer in Lindsay. At the sentencing hearing, the Hearing Officer asked both counsel (Mr. Christie for the Service and Ms. Mulcahy for Const. Johnson) if they were agreeable to having the sentencing decision released electronically so that re-attendance at another hearing in Lindsay would not be required. Both counsel agreed that an electronic release of the sentencing decision would be acceptable to them.

6. On January 6, 2012 at 9:20 am, the Hearing Officer sent an e-mail addressed to Mr. Christie, Ms. Mulcahy, Insp. Mark Mitchell of the Service, copying Chief John Hagarty of the Service (the “Chief”).

Attached to the e-mail was the Hearing Officer’s decision setting out the penalty to be imposed on Const. Johnson.

7. At 11:22 on the same morning Ms. Mulcahy confirmed receipt of the decision.

8. In his affidavit forming the main part of the Appellant’s Motion Record, Insp. Mitchell stated he called Const. Johnson on January 6, 2012 to confirm he had received the decision. Const. Johnson said he was “reviewing the decision”.

9. Attached to Insp. Mitchell’s affidavit as Exhibit “H” was a media interview conducted with Const. Johnson and reported on January 10,

2012, where Const. Johnson commented extensively on the content of

the penalty decision.

10. On February 15, 2012, the Chief wrote to Const. Johnson to advise him how the penalty would be carried out.

11. On March 20, 2012, the Commission received Const. Johnson’s Notice of Appeal which was dated March 14, 2012.

12. On March 29, 2012 the Commission pursuant to Rule 3 of its Rules of Practice, directed the Service to bring a motion to determine the Commission’s jurisdiction to hear the appeal.

Decision:

13. For the reasons set out below, we find that the Commission lacks jurisdiction to hear Const. Johnson’s appeal. Therefore, we grant the motion and order that this matter be dismissed.

Submissions of the Service (Appellant on Motion)

14. Mr. Christie, for the Respondent argued that there was no appeal before the Commission because Const. Johnson did not meet the statutory requirements for an appeal to be commenced. It was submitted that the Appellant had not provided the Service with any of the following: a Notice of Appeal, a copy of the decision, or proof of request for the hearing transcripts.

15. Mr. Christie also argued that the Commission did not have jurisdiction to hear this appeal because the purported Notice of Appeal filed with the Commission was filed late.

16. The Service relied on section 87 (1) of the Act, which states:

A police officer or complainant, if any, may, within 30 days of receiving notice of the decision made after a hearing held under subsection 66 (3), 68 (5) or 76 (9) by the chief of police or

under subsection 69(8) or 77(7) by the board, appeal the decision to the Commission by serving on the Commission a

written notice stating the grounds on which the appeal is based.

17. Mr. Christie argued that the appeal period in this case commenced on January 6, 2012 and that the Appellant did not meet the 30 day requirement because his purported Notice of Appeal was received by the Commission on March 20, 2012, which is more than a month beyond the 30 day time period mandated by the Act.

18. It was submitted that Const. Johnson received notice of the penalty decision because his lawyer (on his behalf) consented to receiving the decision by e-mail, and she confirmed receipt of it.

19. Mr. Christie asserted that in a disciplinary hearing where the Chief appoints a hearing officer such as he did in this case, the hearing officer and the chief of police are to be considered one and the same. Watson and Peel Police Service, 2007 ONCA 41.

20. He stated that the Hearing Officer discharged the obligation to provide “written notice” of his decision when he e-mailed a copy of the penalty decision to Const. Johnson’s lawyer.

21. Mr. Christie argued that Const. Johnson received the decision in writing and that he had reasonable opportunity to serve a Notice of Appeal within the statutory time period. Sipar and Schetzer et. al, (November 29, 1999, OCCPS).

22. It was submitted that, therefore, the time for an appeal had expired and the Commission lacked jurisdiction to hear the matter because the statutory time period had expired before Const. Johnson filed his purported Notice of Appeal with the Commission.

23. The Respondent requested that the Commission declare that there

was no appeal before it or in the alternative that it had no jurisdiction to hear Const. Johnson’s appeal.

Submissions of Const. Johnson (Respondent on Motion)

24. Const. Johnson made very brief submissions at the hearing on the motion.

25. He submitted that he filed his appeal materials when he did because he was relying on section 85 (8) (a) of the Act which states that:

The chief of police… shall promptly give written notice of any penalty imposed or action taken...with reasons (a) to the… police officer who is subject of the complaint.

26. Const. Johnson submitted that he did not receive “written notice” from the Chief and that he was waiting for such “written notice” before filing his appeal.

27. He further submitted that it was only on February 15, 2012, when he received a letter from the Chief advising how the penalty would be served, that he realized he should commence his appeal. The Appellant submitted that the date he received “written notice” under section85(8)(a) was February 15, 2012 when he received the letter from the Chief. Therefore he submitted the Notice of Appeal was filed on time, within 30 days after that date.

Reasons for Decision:

28. On March 20, 2012 the Commission received a purported Notice of Appeal from Const. Johnson. When the Commission receives a notice of appeal it must be dealt with. The Commission’s Rules of Practice state that “no proceeding is invalid by reason only of a defect or other irregularity in form” and that “reasonable compliance with the forms shall be sufficient”. (Rules 4.1 and 4.2)

29. Further to Rule 3.2 of the Rules of Practice the Commission “may issue general or specific procedural practice directions at any time.” Given that Const. Johnson’s purported Notice of Appeal was received after the expiry of the statutory 30 day time period, we directed the question of jurisdiction be raised before us by way of motion.

30. We find that there are three key questions to be addressed here:

(1) was the appellant served with “written notice” of the penalty decision;

(2) if yes, when, and;

(3) if the notice of appeal was late, is the appeal still permitted and should it proceed to be heard.

31. A designated hearing officer is the delegate of the Chief of Police.

Section 94 (1) of the Act provides that:

A chief of police may delegate the following powers and duties to

a police officer or a former police officer of the rank of inspector or higher, a judge or retired judge, or such other person as may be

prescribed:

1. Conducting a hearing under subsection 66 (3)...

2. Superintendent Neale Tweedy as hearing officer designate in this case was the delegate of the Chief of Police for the purposes of conducting the hearing.

3. There are many methods beyond delivery of a printed paper document that qualify as “written notice”. The Hearing Officer asked for consent

of both counsel to send the penalty decision by e-mail and was prudent to ask for confirmation from counsel when they received the

decision. Counsel for both the Service and Const. Johnson confirmed receipt of the e-mailed decision.

34. In a letter dated March 15, 2012, the Chief wrote to Const. Johnson confirming that the penalty would be imposed in compliance with the Hearing Officer’s penalty decision. In this letter the Chief stated:

Inspector Mitchell contacted you on January 6th to make sure that you were aware of the decision. You stated that you were. You further stated that your lawyer had forwarded you a copy of the decision and that you were reviewing it.

35. This was confirmed paragraph 12 of Insp. Mitchell’s affidavit.

36. We find that by providing a copy of the written decision by e-mail, on consent of the parties through their counsel, the Hearing Officer provided “written notice” of the decision.

37. In the materials filed for the appeal by Const. Johnson, it is clearly stated that he received an e-mail from his lawyer about the penalty on January 6, 2012. We believe that Ms. Mulcahy, Const. Johnson’s lawyer, did send him a copy of the decision on January 6, 2012.

38. We find that Const. Johnson was fully aware of the content of the penalty decision in and around January 6, 2012 as evidenced in the media interview reported on January 10, 2012. Throughout this media interview there are comments by Const. Johnson about the Hearing Officer’s findings and reasons for penalty.

39. Furthermore, the Appellant’s materials state that he received a call from his counsel on February 5, 2012 asking whether he wanted to appeal. It is indicated in these materials that Const. Johnson told Ms. Mulcahy that he had not been given notice of the penalty in accordance with section85(8). Ms. Mulcahy frequently represents officers before the Commission. We reject the insinuation that Ms. Mulcahy did not understand what “service of the sentence” entailed

and did not make it clear to him that the appeal time limit was triggered on the date that the e-mail with the penalty decision was sent.

40. We find therefore, that Const. Johnson received notice of the penalty decision through the e-mail sent to his counsel on January 6, 2012.

41. The Act does not contain a provision allowing for the extension of the time to commence an appeal for any reason. Section87(1) very clearly provides that the time for submitting a notice of appeal to the Commission is within 30 days of receiving notice of the decision.

42. A previous version of the Act granted discretion to the Commission to consider an extension of the time provided for submitting a notice of appeal: see Police Services Act 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.

43. 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 of the statutory time period within which to commence an appeal after the Act had been amended. In this case the motion to allow a late notice of appeal was denied. The Commission found 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.”

44. This finding was affirmed in 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 (emphasis added) the expiry of the time period mandated by the Act. This finding was also affirmed in the case of Constable Jander and the Toronto Police Service (November 3, 2009, OCPC).

45. We find that there was reasonable time for Const. Johnson to submit a notice of appeal, and that the Commission has no power under the Act to extend the time period within which to file a notice of appeal.

Conclusion:

46. For the reasons set out above, we find that the Commission lacks jurisdiction to hear an appeal by Const. Johnson. Therefore we grant the motion and order that this matter be dismissed.

DATED AT TORONTO THIS 4TH DAY OF JULY, 2012

DAVID C. GAVSIE ZAHRA DHANANI Chair, OCPC Member, OCPC