Mauro v. Thunder Bay Police Service, 2013 CanLII 101386

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Mauro v. Thunder Bay Police Service, 2013 ONCPC 1

BETWEEN:

SERGEANT JAMES MAURO APPELLANT

-and-

THUNDER BAY POLICE SERVICE RESPONDENT

DECISION ON MOTION

Panel: David C. Gavsie, Chair Zahra Dhanani, Member

Hearing Date: December 13, 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 David Butt, Counsel for the Appellant David Cowling, Counsel for the Respondent

Introduction

1Sgt. Mauro (also the “Appellant”), brings a Motion (the “Motion”) to obtain an Order that new or additional evidence be permitted to be adduced on appeal. The Respondent, the Thunder Bay Police Service (the “Service” or sometimes, the “Respondent”) contests the Motion.

2The new or additional evidence sought to be permitted is in the form of affidavits from:

a) the Appellant; b) Keith Hobbs, a member of the Executive of the Thunder Bay Police Association (the “Association”) at relevant times to the subject of the discipline matter involving the appellant, and currently the Mayor of Thunder Bay; c) Daniel Taddeo, an Inspector with the Service; and d) Paul Marchiori, a Sergeant with the Service.

The Respondent, pending the outcome of this Motion, has not had the opportunity to cross-examine any of the four affiants.

3Upon a review of the affidavits, with the exception of part of the one given by Sgt. Mauro which deals with his LTD and his counsel, all relate to facts that occurred prior to any of the scheduled hearing dates.

Decision

4For the reasons set out below, the Motion is dismissed.

Background

5In his Decision dated March 16, 2012, Supt. (Ret.) Morris Elbers (the “Hearing Officer”) found Sgt. Mauro guilty of discreditable conduct pursuant to s.2(1)(a)(xi) of the Code of Conduct contained in the schedule to Ontario Regulation 268/10, as amended (the “Code of Conduct”).

6On April 5, 2012, the Hearing Officer imposed a penalty of demotion on Sgt. Mauro to a First Class Constable for 12 months effective upon his return to work, after which time he would be reclassified to the rank of Sergeant. Sgt. Mauro was also not entitled during the 12 month period to be placed in an Acting Sergeant’s position.

7After several adjournments, the hearing proceeded on February 15 and 16, 2012. Four witnesses were called by the prosecutor for the Service.

8At no time during the hearing was the Appellant or counsel representing him present in the hearing room.

9On May 3, 2012, Sgt. Mauro filed a Notice of Appeal against the finding made and the penalty imposed by the Hearing Officer.

10The Appellant filed the present Motion to adduce new or additional evidence on October 18, 2012.

Preliminary Matter

11At the hearing of the Motion, Mr. Cowling raised the issue that there had been no cross-examinations of the affidavits.

12Mr. Butt asked the Panel to simply receive the affidavits and referred to the decision of Stolar v. The Queen [1988] 1 S.C.R. in support of his position. Mr. Butt also referred to the case of Palmer and Palmer v. The Queen [1980] 1 S.C.R. 759 where criteria were set out for allowing fresh evidence, one of which was whether or not the fresh evidence could have affected the result. He urged the Panel to receive the fresh evidence, allow for cross-examination of the affiants, and then consider that fresh evidence in hearing the appeal.

13Mr. Cowling also referred to the Palmer decision. He stated that there is a basis to dismiss the Motion because the first branch of the Palmer test had not been met. The evidence sought to be adduced by the Motion was available at the time of the hearing.

14After deliberation, the Panel asked counsel to address the first branch of the Palmer test. If the Panel found that it was met, then cross-examinations would be ordered and the Panel would hear submissions regarding the three other tests laid down by the Palmer decision. Conversely, if the Panel found that the first branch of the Palmer test had not been met, the Motion would be dismissed.

Submissions

15Mr. Butt stated that all the new or additional evidence was in existence at the time of the hearing, but on the merits, it was wrong to deprive Sgt. Mauro of his opportunity to participate in the hearing when he was on long term disability (“LTD”) leave from the Service. The evidence may have been available at the time of the hearing – it was chronologically available – but Sgt. Mauro did not have functionality then. As a result, the evidence was functionally not able to be produced at the hearing.

16Mr. Butt also questioned whether the Hearing Officer should have sought information behind the fact that Sgt. Mauro was on LTD with the Service’s independent insurer.

17Mr. Butt referred to a part of the headnote in the Stolar case which reads:

The law relating to the bringing of fresh evidence when an appeal is taken is settled: that evidence must reasonably have been able to affect the result. When an application is made to the Court of Appeal for the admission of fresh evidence, the motion should be heard and, if not dismissed, judgment should be reserved and the appeal heard.

18Mr. Butt said that the criteria for admissibility of fresh evidence is whether or not the evidence can be believed, and without cross-examination that question cannot be determined.

19Mr. Cowling’s position is that the first branch of the Palmer test has not been met, and therefore the Motion should be dismissed. Whether or not the new or additional evidence was functionally available due to Sgt. Mauro’s LTD and whether or not the Hearing Officer should have proceeded with the hearing, is the central issue on the appeal. He argued that the Panel should not make a decision on the merits of the appeal proper at this stage.

20Mr. Cowling also indicated that if the Panel finds on appeal that Sgt. Mauro was improperly denied the right to participate in his hearing due to his LTD, then the Panel may order a new hearing be held. Sgt. Mauro will then be able to introduce the evidence he is seeking to introduce through the Motion.

21Mr. Cowling again referred to the Palmer case, supra. The evidence was available to be presented at the hearing. Sgt. Mauro failed to participate. Therefore, the first branch of the test for admitting fresh evidence as set out in the Palmer case has not been met.

Reasons

22S. 87(5) of the Act provides:

A hearing held under this section shall be an appeal on the record, but the Commission may receive new or additional evidence as it considers just.

23The leading case in Canada on whether or not to admit new or additional evidence, or fresh evidence as it is called elsewhere, is the Palmer case, supra. The Supreme Court of Canada stated the following principles from case law, predominantly criminal law cases, on the subject:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

24The Stolar case was decided in 1988. The Palmer case was decided in 1980. In Stolar, the Court confirmed that the law relating to the bringing of fresh evidence on appeal is settled, and the test is set out in the Palmer decision. Mr. Butt indicated that in light of Stolar, the Panel should receive the new or additional evidence. The Stolar decision did not, in our view, alter the test set out in the Palmer decision. Rather, it clarifies the procedures which should be followed when a motion to introduce fresh evidence is not dismissed on one or more of the four branches of the Palmer test. If the motion is not dismissed and it is determined that the evidence could affect the outcome of the case, judgment should be reserved and the appeal heard so that the court can consider the question of fresh evidence against all of the evidence in the case.

25Mr. Butt asked the Panel to consider the evidence in the context of the appeal, but without convincing the Panel as to how the new or fresh evidence satisfies the Palmer test.

26This would be, in our view, an improper application of the Stolar decision. The procedure set out in Stolar only applies where the Palmer test has been met and the motion has not been dismissed under one or more of the branches of the test.

27We agree with Mr. Cowling’s position that the first branch of the Palmer test has not been met. Aside from the affidavit of Sgt. Mauro, all of the other affidavits sought to be admitted into evidence by the Motion refer to factual information available at the time of the hearing. Mr. Butt agreed that such was the case. So there is no dispute that the new or fresh evidence could have been adduced at the hearing.

28The issue of whether or not Sgt. Mauro was denied a right to participate at the hearing due to his LTD is to be decided upon the hearing of the appeal.

29The Panel notes that most of the time frame giving rise to the charges against Sgt. Mauro occurred on or after October 19, 2009. Consequently, s. 87 of the Police Services Act governs the appeal to the Commission.

30Should the Panel decide that the Hearing Officer’s decision to proceed with the hearing in the Appellant’s absence constituted a legal error, then a possible remedy under s. 87 of the Act is for the Panel to order a new hearing. In that case, Sgt. Mauro will have the opportunity to adduce his evidence. That will be decided upon the hearing of the appeal and not in connection with the decision on the Motion.

31The Appellant does not meet the first branch of the Palmer decision.

32The Motion is therefore dismissed. The Commission will canvass dates for the hearing of the appeal by Sgt. Mauro with counsel.