Sergeant James Mauro v. Thunder Bay Police Service, 2013 CanLII 101388

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 9

BETWEEN:

SERGEANT JAMES MAURO APPELLANT

-and-

THUNDER BAY POLICE SERVICE RESPONDENT

DECISION

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

Hearing Date: April 10, 2013 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

1. In his decision dated March 16, 2012, Supt. (Ret.) Morris Elbers (the “Hearing Officer”) found Sergeant Mauro (Sgt. Mauro or the “Appellant”) 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”).

2. On April 5, 2012, the Hearing Officer imposed a penalty of demotion on Sgt. Mauro to 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.

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

4. The Appellant has requested that the Commission revoke the Hearing Officer’s decision and that, if the decision is not revoked that the penalty be varied and reduced to a reprimand.

Decision

5. For the reasons set out below, the appeal is dismissed.

Background

6. The background to the hearing was stated as follows by the Hearing Officer in his Decision of March 19, 2012:

Sergeant James Mauro #456 is alleged to have conducted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Thunder Bay Police Service between October 16, 2009 and November 05, 2009 and further did make or sign a false statement in a record between October 16, 2009 and November 05, 2009.

The two counts alleged that Sergeant James Mauro on or about October 19, 2009 you were involved in arbitration and in support of your position, you provided a casebook containing case law, evidence and argument, to Counsel of the Thunder Bay Police Service and the arbitrator. Contained within the casebook was an unsigned letter, which appeared to be from Staff Sergeant Keith Hobbs of the Thunder Bay Police Association. The unsigned letter was not written or provided by Staff Sergeant Keith Hobbs. You wrote the letter and submitted it as being authored by Staff Sergeant Keith Hobbs. On or about October 23, 2009, you tried to have the letter withdrawn and replaced with a will say. On November 05, 2009, you appeared before the arbitrator with casebook containing the letter.

7. The unsigned letter was dated October 15, 2009 (Exhibit 13 at the Hearing). The will-say statement was undated (Exhibit 14 at the Hearing).

8. A Notice of Hearing dated March 30, 2010 commanded Sgt. Mauro to appear at a hearing to be held on April 6, 2010. Subsequently, a series of adjournments were requested by the Appellant resulting in a two year gap between the first hearing date and the day the actual hearing began. The chronology is provided below.

9. On April 6, 2010, the Hearing Officer was advised that Sgt. Mauro was on LTD by his then counsel, Mr. Harry Black. An adjournment was requested and granted. A new hearing date of October 12, 2011 was set.

10. In September and October 2011, Mr. Black indicated he would be seeking a further adjournment and obtained a letter from a doctor dated September 13, 2011, redacted to delete all information that would identify the doctor (Exhibit 3 at the Hearing). The letter reads as follows:

September 13, 2011

Mr. Harry Black QC Re: JAMES MAURO Dec 17, 1960

Dear Mr. Black,

At your request, I am writing you at your concerning my patient JAMES MAURO who is currently under my care.

It is my understanding that a hearing has been scheduled for him in October of 2011. It was hoped that by this time he would be well enough to fully participate in the hearing without any ill effect. Unfortunately, his condition has not improved both from what I observe and as supported by other members of his health care team. He has had a number of intervening stressors including the death of his father and the ongoing illness of his mother.

At the current time I believe that Mr. Mauro’s health could decline should a hearing go ahead. He has recently started a new treatment regimen that hopefully will improve his condition in the coming 2-3 months and at that point he should be able to fully participate in the hearing without further risk to his health.

I hope this information meets your needs. Please let me know if I can be of further assistance.

Sincerely, Dr.

11. In a conference call on October 4, 2011, the Hearing Officer told counsel for the Appellant and for the Respondent that the redacted September 13 letter would be insufficient to grant an adjournment request, and that the hearing would proceed as scheduled on October 12, 2011.

12. At the hearing on October 12, neither the Appellant nor Mr. Black appeared. However, an agent for Mr. Black appeared on his behalf and read an e-mail from Mr. Black (Exhibit 5 at the Hearing) requesting an adjournment based on the medical circumstances of Sgt. Mauro, including the fact that he was on Long Term Disability (“LTD”).

13. The Hearing Officer adjourned the hearing on October 12 until November 9, 2011 requesting further medical information about the appellant to justify any further adjournment request.

14. On October 28, 2011, Mr. Black wrote to the Hearing Officer and counsel for the Thunder Police Service (the “Service”) indicating he would not be present on November 9, repeating the information about Sgt. Mauro’s medical situation, including that he was on LTD, and advising that Sgt. Mauro would not advance any motions on November 9 (Exhibit 6 at the Hearing).

15. At the hearing on November 9, 2011, neither the Appellant nor Mr. Black appeared. However an agent for Mr. Black did and read a letter from Mr. Black (Exhibit 7 at the Hearing).

16. The Hearing Officer adjourned the hearing on November 9, 2011 and fixed February 15 to 17, 2012 as the new dates.

17. On January 9, 2012, Mr. Black sent a letter to the Hearing Officer stating he was unavailable on February 15 and that the date had been set without consulting him (Exhibit 10 at the Hearing). If forced to proceed on February 15, Mr. Black stated he would be forced to step down as legal counsel for Sgt. Mauro. Mr. Black also indicated that Sgt. Mauro was not able, medically, to defend the charges against him.

18. In an exchange of e-mail messages on February 14, 2012, Mr. Black indicated to Mr. Johnstone’s office that he would not be at the February 15 hearing, that Sgt. Mauro was still on LTD, and that he was not retained for the hearing (Exhibit 12 at the Hearing).

19. On February 14, 2012, Mr. Johnstone faxed a letter to Mr. Butt asking him to confirm that Mr. Butt intended to be counsel of record for Sgt. Mauro (Exhibit 12 at the Hearing).

20. On February 15, 2012, Mr. Johnstone was advised by the Association in response to his question, that Mr. Butt had been retained to act for Sgt. Mauro. However, in a telephone conversation later the same day, Mr. Butt indicated that he had not been retained but that he had had a conversation with the Appellant.

21. At the hearing on February 15, 2012, neither the Appellant nor any one representing him appeared. The Hearing Officer determined he had authority to proceed and did so by hearing evidence brought by the Service.

Disciplinary Hearing

22. During the days on which the hearing was held (February 15 and 16, 2012), the Service brought forward the following witnesses who gave evidence:

a) Robert Edwards, a lawyer in Thunder Bay, who acted for the Service at the grievance arbitration involving the Appellant b) Julie Tilbury, a Constable with the Service c) Lars Holdt, a Constable with the Service d) Mayor Keith Hobbs, Mayor of Thunder Bay, formerly a Staff Sergeant with the Service and the President of the Association also at the time of the grievance arbitration involving the Appellant and e) Andrew Hay, Deputy Chief of the Service, who gave evidence after the Hearing officer rendered his Decision as to findings.

23. At no time during the hearing was the Appellant or counsel representing him present.

24. On March 16, 2012, the Hearing Officer in an oral decision found the Appellant guilty of discreditable conduct. The deceit charge was dismissed. Neither the Appellant nor any one representing him appeared.

25. On April 5, 2012, the Hearing Officer imposed the penalty set out in paragraph 2 above.

26. On December 13, 2012, the Appellant brought a Motion before the Panel seeking an Order that new or additional evidence be permitted to be adduced on appeal. By Decision dated January 24, 2013, the Panel dismissed the Motion.

Appellant’s Submissions

27. The Appellant argued that the Hearing Officer’s decision should be revoked on three grounds:

1. the Hearing Officer was biased;
2. the Prosecutor was one-sided in his presentation of evidence and
3. the decision to proceed with the hearing despite Sgt. Mauro’s absence was fundamentally unfair.

28. Mr. Butt submitted that there was a reasonable apprehension of bias on the part of the Hearing Officer. It was alleged that the Hearing Officer abandoned his neutrality and acted in a biased manner against Sgt. Mauro.

29. Mr. Butt alleged that the Prosecutor at the disciplinary hearing did not advance a full case and “painted an incomplete evidentiary picture”. He stated that the Prosecutor unfairly limited the presentation of the evidence of witness Keith Hobbs.

30. The Appellant submitted that the Prosecutor also failed to provide positive evidence of the Respondent’s policing career.

31. Mr. Butt argued that the Hearing Officer should have accepted that Sgt. Mauro lacked the ability to be at the hearing and should not have proceeded with the hearing, nor required any further medical information. In his submission it was wrong to deprive Sgt. Mauro of his opportunity to participate when he was on LTD.

32. Mr. Butt submitted that this case has implications beyond Thunder Bay. He asserted that the issue in question is when a police service has procedures for placing an officer on LTD, is it appropriate to go behind such a determination and order the officer’s attendance at a hearing?

33. It was asserted that people who are on LTD are, as a result of this, exempt from being expected to attend discipline hearings. Mr. Butt submitted that to expect someone on LTD to attend a disciplinary hearing is fundamentally unfair. It was suggested that the Hearing Officer should have adjourned the disciplinary hearing until Sgt. Mauro was back at work and off LTD, “whenever that might be”.

34. The Appellant argued that to request medical information to support the Appellant’s further adjournment requests was a breach of Sgt. Mauro’s privacy rights.

35. The Appellant submitted that the Hearing Officer’s decision to proceed with the hearing in Sgt. Mauro’s absence breached his procedural fairness rights.

36. It was also argued that the penalty of demotion was drastic and harsh. If the appeal on the conviction fails, it was submitted that the penalty should be reduced to a reprimand.

Respondent’s Submissions

37. Mr. Cowling argued that the Hearing Officer’s decision is reasonable.

38. Mr. Cowling submitted that the Hearing Officer made every attempt to accommodate Mr. Black’s delays and repeated requests for adjournments, but that he also had an obligation to proceed with the hearing in a timely fashion that affords justice to all parties.

39. Mr. Cowling argued that the main issue in this appeal was whether Sgt. Mauro had been deprived of his right to appear at his hearing.

40. The Respondent argued that there were several compelling reasons why the Hearing Officer decided to proceed with the hearing, including:

a) the Appellant’s disciplinary hearing was originally scheduled for April, 2010 and the hearing was delayed almost two years until proceeding in February 2012; b) the Hearing Officer adjourned the hearing to accommodate the Appellant and his counsel on several occasions; c) the Hearing Officer explicitly directed the Appellant to retain new counsel if his counsel was not available for the next date and yet the Appellant did not take any steps to retain new counsel.

41. The Respondent submitted that the Hearing Officer’s decision to proceed with the hearing without the Appellant was correct in law and reasonable in respect of the facts. Section 7 (1) of the Statutory Powers and Procedure Act, R.S.O. 1990, c.5. 22, as amended (the “SPPA”) empowers a tribunal to proceed in the absence of a party where notice has been provided. This principle is upheld in case law: see Sunwide Finance Inc. (Re), 2009 LNONOSC 380, Williams v. Metropolitan Toronto Condominium Corp., No. 539 [1996] O.H.R.B.I.D., and Farias v. Chuang (c.o.b. Queenstate Dental Care), [2005] O.H.R.T.D.

42. Mr. Cowling submitted that the Appellant has a duty to assist in his own accommodation process: see Jenner v. Toronto Newsgirls Boxing Club, [2009] O.H.R.T.D. No. 1365.

43. In this case the Hearing Officer asked the Appellant for an official medical note to substantiate his claim that he could not attend at the Hearing. The Appellant did not comply or cooperate in any way.

44. Mr. Cowling argued that being on LTD does not excuse a worker from attending a hearing. While the Appellant claimed his illness was preventing him from attending the hearing, he substantiated this claim solely on the basis that he was on LTD.

45. The Respondent stated that the law is clear on differentiating between being unable to work while on LTD and being able to attend a hearing while on LTD. The case law holds that being on LTD and unable to work is insufficient to make a case that one cannot attend a hearing: see Johnston Grievance, [2004] O.L.A.A. No. 497, and Gobeil and Treasury Board (National Defence), [1988] C.P.S.S.R.B. No. 98.

46. It was submitted that the law is well settled that a Tribunal is entitled to request proof that a party is medically unfit to attend the hearing: see Perron v. Monto [2011] O.H.R.T.D. No. 699, Palangio v. Cochrane (Town), [2010] O.H.R.T.D. NO. 1252, and Miller v. Northern Health Authority, [2008] B.C.H.R.T.D. No. 156.

47. The Respondent submitted that a worker’s privacy with respect to medical information is limited when they raise medical issues as a reason for accommodation: see McAvinn v. Strait Crossing Bridge Ltd, [2001] C.H.R.D., No. 2, and Robinson v. United Steelworkers, [2011] O.H.R.T.D. No. 1614.

48. The Respondent submitted that the Hearing Officer’s request for medical information was reasonable. The Hearing Officer did not request detailed medical information. The Hearing Officer only asked for the credentials of the doctor and whether the doctor understood the requirements of a PSA Hearing. The Respondent further submitted that these were reasonable requests in the circumstances of this case.

49. The Respondent asserted that if the Appellant wanted to raise the issue of bias, he was required to do so at the original hearing, otherwise he waived his right to raise it as a ground of appeal: see Lionheart Enterprises Ltd. v. Richmond Hill (Town), [2004] O.M.B.D. No. 1376, Eckervogt v. British Columbia (Minister of Employment and Investment) 2004 BCCA 398, 30 B.C.L.R. (4th) 291, and Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892.

50. The Respondent submitted that the Prosecutor did not engage in an improper examination of Mr. Hobbs. There is no evidence in the transcripts that the Prosecutor was anything but fair in providing the Tribunal with all of the witness’ relevant evidence. This allegation should also have been raised at the original hearing: see Leader Media Productions Ltd. Sentinel Hill, [2008] O.J. No. 2284.

51. Mr. Cowling submitted that the Commission’s standard of review on this appeal for the findings of fact, credibility and penalty is reasonableness, see Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9. For the questions of law on this appeal the standard to be applied is correctness.

52. The Respondent requested that the Appellant’s appeal, be dismissed.

Reasons

53. The standard of review is clear and settled. A Hearing Officer should interpret and apply the law correctly. The standard is whether the Hearing Officer’s findings of fact and decision regarding penalty are both reasonable: see Dunsmuir, supra; and Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62.

54. In Dunsmuir, supra, the Supreme Court of Canada described the standard of reasonableness as being concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process but also whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law.

55. It has been a long-standing position of the Commission not to second-guess the decision of the Hearing Officer. Rather the Commission reviews the decision to determine whether the conclusions reached are reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence and are articulated in an intelligible, transparent and logical manner: see Precious and Hamilton Police (2002) 3. O.P.R. 1561, (OCCPS); Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 (Div.Ct.); and Dunsmuir, supra.

56. Only if there has been an error in principle, or relevant factors have been ignored, should the Commission intervene: see Williams supra; Wilson and Ontario Provincial Police (November 20, 2006, OCCPS); Favretto and Ontario Provincial Police, (February 13, 2002, OCCPS); Karklins and Toronto Police Service (September 25, 2007, OCCPS) and Quintieri and Toronto Police Service (2002) 3 O.P.R. 1509 (OCCPS). In limited cases it may be open for the Commission to reach a different conclusion than that of a hearing officer.

57. An appeal to the Commission is an appeal on the record. Unlike the Hearing Officer, we do not have the advantage of hearing and observing any witnesses as they testify. Deference must be accorded to the Hearing Officer’s findings unless an examination of the record shows that the Hearing Officer’s conclusions cannot reasonably be supported by the evidence: see Blowes-Aybar and Toronto (City) Police Service, 2004 Carswell Ont. 1583 (Div. Ct.).

58. The issues before the Panel are:

a) Did the Hearing Officer commit an error of law by conducting the hearing under an apprehension of bias, and was the hearing tainted by an unfair presentation of evidence by the Prosecutor? b) Did the Hearing Officer commit an error of law in deciding to proceed with the Hearing in the Appellant’s absence? Further to this, was it an error in law to request the Appellant’s medical information? c) If the finding of guilt stands, is the penalty imposed harsh, excessive and/or inconsistent with other penalties for similar misconduct?

Apprehension of Bias and Prosecutorial Unfairness:

59. The law is clear that a party waives their right to object to a decision-maker on the grounds of bias where they failed to object on this ground at the hearing. The British Columbia Court of Appeal found in Eckervogt v. British Columbia (Minister of Employment and Investment, supra:

I do not think it is proper for a party to hold in reserve a ground of disqualification for use only if the outcome turns out badly. Bias allegations have serious implications for the reputation of the tribunal and in fairness they should be made directly and promptly, not held back as a tactic in the litigation. Such a tactic becomes suspect when it is not acted on right away.

60. The Appellant did not raise any issue of bias at any time during the hearing or at the many procedural attendances.

61. The Appellant’s factum and oral submissions do not provide any evidence or grounds to substantiate such a claim. Our review of the record establishes that the Hearing Officer was fair and reasonable.

62. Moreover, the Appellant did not provide any case law on the appeal to support any of his arguments, including this allegation of bias.

63. With respect to the allegations of prosecutorial unfairness, we find that the Appellant has not met his obligation to present evidence to support these allegations. The Appellant provided no such evidence and therefore these allegations are unsupported. Our examination of the record establishes there was no misconduct on the part of the Prosecutor and indeed the Prosecutor did much by way of ensuring procedural fairness.

64. We find that the Hearing Officer was fair and unbiased in determining this matter, and that the Prosecutor pursued the hearing in a diligent and responsible manner.

Proceeding with the Hearing in the Appellant’s Absence and the Request for Medical Information:

65. Section 7. (1) of the SPPA reads as follows:

7.(1) Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in absence of the party and the party is not entitled to any further notice in the proceeding.

66. The Notice of Hearing dated March 30, 2010, which Sgt. Mauro acknowledged was served on him stated just above his signature:

In compliance with section 7 of the Statutory Powers (sic) Procedures Act, if you fail to attend the hearing, the tribunal may proceed in your absence without further notice.

67. The crux of the Appellant’s submission on this point is that the hearing could not proceed while he was on LTD. The Hearing Officer made it clear that further evidence was required and that the mere fact that the Appellant was on LTD was insufficient in his view to support further adjournments.

68. Despite these clear directions, counsel for Sgt. Mauro continuously raised both his LTD and the September 13, 2011 letter (referenced and quoted at paragraph 10 above), as the reasons why Sgt. Mauro could not attend any of the scheduled hearing dates.

69. The Hearing Officer provided many adjournments to the hearing and many opportunities for the Appellant to provide sufficient documentation to support his claim that he was medically unable to participate in the disciplinary hearing.

70. The Hearing Officer attempted to obtain more information from the Appellant’s counsel because he considered the September 13, 2011 letter insufficient to grant a further delay in the case, bearing in mind an adjournment had already been granted on April 6, 2010.

71. The Hearing Officer set November 9, 2011 as a new hearing date, again requesting further medical information before he would grant any additional adjournment request.

72. On November 9, 2011, the Hearing Officer once again adjourned the hearing, setting February 15 to 17, 2012 as the new dates.

73. On January 9, 2011, Mr. Black told the Hearing Officer he was not available on February 15 and if forced to proceed, he would have to step down as Sgt. Mauro’s attorney.

74. On February 14 and 15, 2012, there appeared to be confusion as to who was or was not representing Sgt. Mauro.

75. Through all of these hearing dates, Sgt. Mauro did not personally appear nor did he have a representative appear on his behalf. Nor after the September 13, 2011 redacted letter was there any further explanation of Sgt. Mauro’s medical condition. Aside from the letter, the only explanation for Sgt. Mauro’s non-appearance was his being on LTD.

76. Despite numerous requests from the Hearing Officer, the Appellant failed to provide adequate evidence and then failed to attend the hearing which had already been delayed for two years. In making his decision to proceed with the hearing on February 15, 2012, the Hearing Officer expressed himself as follows at pages 22 to 27 of the transcript of that date:

I made myself abundantly clear on November the 9th, 2011, while in Thunder Bay that we will be scheduling dates for this particular hearing. Mr. MacDonald at that time was representing Mr. Black and further representing Sergeant Mauro at that particular hearing. That was a follow up to the October 12th date where I was initially present as well to conduct the hearing at that particular time and then we received Exhibit number 3 which was the redacted letter purportedly signed by a doctor indicating that Sergeant Mauro was incapacitated to attend the hearing. On that particular day I set November the 9th to hear information to assist me to make, as I said then and on numerous teleconferences with Mr. Black, an informed decision so that without prying into the medical situation of Sergeant Mauro, but I need information so I can inform, make an informed decision to delay or, delay the particular hearing, but again give me a position of whether we were able to accommodate Sergeant Mauro at any hearing in the future. This I met with resistance and again, no information.

November 9th date was scheduled on October the 12th without the guidance or the assistance of either Mr. Black, who was at that point was represented by Mr. Bruzzese and I hope I’m pronouncing that correctly, and Mr. Johnstone. A teleconference call, or a call was made by Mr. Bruzzese at that time to Mr. Black to try setting up a date but at that particular time it was inconvenient for Mr. Black. I indicated to Mr. Bruzzese that he should have been here in Thunder Bay in the first place. November 9th date was chosen by myself without consultation from Mr. Johnstone or from Mr. Black. As we are aware, we sat on November the 9th and once again no information was received other than Mr. MacDonald representing Mr. Black, again indicating that he stated he was not part and parcel to the date that was chosen. On November the 9th three days were chosen, February 15th through the 17th to conduct this particular hearing. The tribunal was fully aware that Mr. Black was unavailable for those particular dates because he is engaged in a hearing in Toronto and that gave Sergeant Mauro some three months to then choose another counsel, have that person contact Mr. Johnstone and if the February 15th to 17th dates would not be effective or available for counsel, it was that time to have that discussion and teleconference calls, not the day of the hearing here in Thunder Bay on February the 15th. Again, as I stated, I have not received any medical information to assist me with making an informed decision in regards to the status of Sergeant Mauro. Again I’ve heard from Mr. Black through letters and again from the letter that was dated January the 9th, 2012, which is Exhibit number 10 in this proceedings, and in that letter it states that he would be in possession of a specialist letter on January the 10th and he would then advise the tribunal as to the status. It is now February the 15th and to this date I have yet to receive any information with regards to the status of that medical letter. It has been almost two years. I have not received any information in regards to the, in regards to the prosecutor’s and my request to obtain medical information to see if Sergeant Mauro can be accommodated. I have read the cases provided briefly from Mr. Johnstone this morning. I had deduced they are simply guidance to the tribunal and indicating that a hearing could commence without the parties being present. Sergeant Mauro is not here today and at this time I believe he does not even have counsel. It was emphatically stated to Mr. MacDonald who represented Mr. Black, that these dates would proceed February 15th through 17th, 2012 in Thunder Bay. It is my belief that information was communicated to Mr. Black and hopefully Mr. Black then communicated that to the subject officer, Sergeant Mauro.

As I stated earlier, that gave Sergeant Mauro some three months then to obtain other counsel. In the interim Mr. Black has still been corresponding with myself and Mr. Johnstone and I find out today he’s no longer counsel. As to when that happened, I have no idea or when that was effective. I learn today that Mr. Butt has been retained by Sergeant Mauro. He has had some accident himself and then reading the exhibits number 12, it indicates that he’s not been retained as yet from Sergeant Mauro.

I am aware that I must be sensitive to all the parties who have standing at the hearing. The management of the Thunder Bay Police Service has been patient and this has been reflected through their prosecutor Mr. Johnstone. I have given defence counsel three opportunities to assist me to make an informed decision as to the accommodating issues for Sergeant Mauro and this is met with no satisfaction. I have repetitively been told that he should be good to go in two to three months. Again, this has not happened and this has ironically taken place prior to each one of the hearings. This letter from the specialist has not been received. We are here today and the prosecution is present and we are, we are without the subject officer and his counsel. The tribunal has attempted to have Sergeant Mauro participate in the proceedings by way of accommodation through his medical issues, if possible, and this we are willing to do. This has been communicated to counsel and met with resistance or outright ignorance to my direction. There has been no clear and cogent evidence of the length of time in order to have Sergeant Mauro obtain a level of confidence to enable him to effectively instruct counsel and possibly be a witness at the hearing. There has been no clear and cogent evidence of medical prognosis that shows a reasonable level of competence to occur within a short time. There has been no clear and cogent evidence that a hearing would have a serious emotional effect on Sergeant Mauro. I have heard comments from Mr. Black with regards to emotional capabilities and medical evidence but that’s not clear and cogent evidence. I have heard and saw documents on two occasions that he should be good to go I said in two or three months. However, this has been produced just prior to the hearing date. It is now February the 15th, 2012 and at this time there is no subject officer, the subject officer Sergeant Mauro and his counsel is not present.

Instructions were clear on November the 9th, 2011 given by the tribunal here in Thunder Bay for Sergeant Mauro and Mr. Black, through his representative, Mr. MacDonald. No one was present to advise the tribunal what is happening today other than the information that I have received through third party information which was then received by the prosecutor Mr. Johnstone. I find such conduct deplorable. Consequently in accordance with section 7. (1) of the Statutory Powers and Procedures Act, this tribunal will proceed with the hearing as originally scheduled on November the 9th, 2011.

77. We do not agree with Mr. Butt’s position that the Hearing Officer could not go behind the LTD of Sgt. Mauro. In the record of the hearing, we could not find anything indicating that Sgt. Mauro’s medical condition prevented him from appearing at the hearing.

78. In the case of Perron v. Monto, supra, Mr. Perron’s counsel requested an adjournment on the basis that Mr. Perron, the applicant, was gravely ill and had an appointment with a specialist later in the week. The Vice-Chair of the Ontario Human Rights Tribunal said the following at paragraph 7 and 8 of her decision:

If the applicant is truly too ill to attend (or participate through some electronic means), then this hearing must be adjourned, regardless of the lateness of the Request. In the circumstances of this case, however, I am not prepared simply to accept the applicant’s or his counsel’s assertion that he is too ill. Third-party documentation is required not only to substantiate the necessity for the adjournment but to permit the Tribunal to re-schedule the hearing, with appropriate accommodation, if necessary.

I am prepared to adjourn this matter on condition that the applicant file the following with the Tribunal and the respondent’s representative by Thursday, April 21, 2011:

(a) The name of his medical specialist and the date of the appointment;

(b) Detailed information from the specialist respecting when the applicant might be expected to be medically fit to participate in a hearing, either in person or electronically, and what specific accommodations might be required…

79. The letter from the unknown doctor dated September 13, 2011, to Mr. Black (Exhibit 3), sheds little light on Sgt. Mauro’s medical issues. The letter states, “At the current time I believe Mr. Mauro’s health could decline should a hearing go ahead.”, but did not provide the Hearing Officer with sufficient information at each subsequent request for adjournments by Sgt. Mauro, nor did the letter refer to Sgt. Mauro’s LTD.

80. The medical information requested by the Hearing Officer was necessary to assess Sgt. Mauro’s ability to participate, accommodations that could be deployed to facilitate his participation and/or the length of time required to delay the hearing before Sgt. Mauro could reasonably be expected to attend.

81. It is not reasonable that a hearing would be delayed indefinitely, especially where there is no medical evidence to support that kind of delay. There is a duty on a person before a tribunal to cooperate with a request from the tribunal for appropriate medical documentation or medical explanation as to why the person seeks an adjournment.

82. No medical evidence was tendered by Sgt. Mauro, or by his counsel, or by representatives for his counsel, in addition to the letter dated September 13, 2011.

83. In the case of Palangio v. Cochrane (Town), supra, Mr. Palangio, the applicant, after being denied an adjournment, allegedly went to a hospital and obtained a note from a doctor stating in its entirety: “off work x 2 weeks”. Mr. Palangio forwarded this note to the tribunal the next day with a letter saying he could not make the hearing, and that he was sick and would be resting. He also stated he would contact the tribunal in two weeks with his latest doctor’s report, and requested that the hearing be re-scheduled sometime in the future. The respondent objected.

84. In denying the adjournment request, the Vice-Chair of the Tribunal said the following at paragraph 14:

In all of the circumstances and in light of the history of the matter. I do not regard the medical note provided by the applicant to be sufficient. It does not specifically address the applicant’s ability to attend the hearing on June 8, 2010, but instead makes a brief and vague reference to him being “off work” for two weeks, at a time when the applicant does not appear to be employed. While this Tribunal does not require the details of the diagnosis of a party’s medical condition, this note also does not indicate what symptoms the applicant may be experiencing or what medical restrictions he may have which prevent him from attending the hearing. Nor has the applicant himself provided any such information to the Tribunal in support of his adjournment request. The applicant merely states that he is feeling overwhelmed and “sick” and that he “will be resting”.

85. In the British Columbia case of Miller v. Northern Health Authority, supra, the British Columbia Human Rights Tribunal ruled on an adjournment request by the applicant. A hearing was originally scheduled for January 8-12, 2007 but was adjourned due to the applicant’s inability to proceed. New hearing dates were scheduled for February 25-28, 2008, and a settlement meeting, scheduled for November 20, 2007, was cancelled due to the applicant’s ongoing health issues, which prevented her from proceeding. In mid-January 2008, applicant’s counsel advised she would be unable to attend the February hearing dates due to her ongoing medical condition. The adjournment was not opposed. A Pre-Hearing Conference was held on February 29, 2008. One of the respondents, a hospital, had earlier requested medical information regarding the Applicant’s prognosis, which had not been received by the date of the call. On the call, applicant’s counsel advised that the applicant would not be returning to work for at least a year, and requested a stay in processing her complaint for at least six months pending further medical examination. The respondent hospital did not consent to the stay. The respondent hospital sought a dismissal of the applicant’s complaint.

86. The Member of the British Columbia Human Rights Tribunal dismissed the respondent hospital’s application for dismissal, but refused to grant the applicant’s request for a six month stay. The Tribunal made the following comment at paragraphs 13, 14 and 15 of the decision:

I conclude that the Hospital has not currently demonstrated that it will be prejudiced by a further delay in the processing of this complaint. It does not say that it has suffered actual prejudice and will be unable to answer the complaint. The Hospital has known about this complaint since 2005 and has had the ability to preserve relevant evidence. Nor does the Hospital say that proceeding with Ms. Miller’s complaint would amount to an abuse of process.

… I am not prepared to grant (the applicant’s) request for a stay of at least six months without medical information to support the need for a stay of that length. Therefore, (the applicant) is ordered to provide, to the Hospital and the Tribunal, a psychiatric report explaining whether she will be able to participate in a hearing, when, and what accommodations might be required in the hearing process. In addition, the report is to contain information about (the applicant’s) prognosis and when, if known, she will be able to return to work.

Counsel for (the applicant) is to request the report immediately and advise (the applicant’s) psychiatrist that it is to be provided to the Hospital and the Tribunal by June 27, 2008 (50 days after the date of the decision). Following receipt of the report, and on the request of either party, or on its own motion, the Tribunal will schedule a pre-hearing conference to consider its implications on the further processing of the complaint.

87. In decision No. 89/991 of the Ontario Workplace Safety and Insurance Appeals Tribunal, a worker’s representative informed the panel that the worker appealing the decision of an Acting Appeals Officer, was not able to appear due to “medical reasons with respect to heart fibulation brought on by the tension of the hearing”.

88. In giving its reasons, the panel stated the following at paragraph 16:

The Panel also requires the attendance of the worker at the appeal and instructed the worker’s representative that the Tribunal may be able to accommodate the worker to enable such a hearing to take place with the least amount of tension for the worker. If the worker is absolutely unable to attend a reconvened hearing, there must be a doctor’s letter to the Tribunal explaining very specifically why the worker ought not to attend.

89. Having failed to provide the Hearing Officer with additional medical information, despite repeated requests, Sgt. Mauro cannot, in the Panel’s view, request further accommodation than what had already been provided.

90. The Panel finds that the Hearing Officer’s request for the medical information to substantiate continued accommodation requests was legally correct.

91. The Panel finds that the Hearing Officer’s decision to proceed with the hearing on February 15, 2012 to be reasonable based on the persistent lack of cooperation by the Appellant with the Hearing Officer, and the numerous previous adjournments.

Appropriateness of the Penalty Imposed

92. We have also reviewed the Reasons for Decision to determine whether the Hearing Officer considered all of the relevant sentencing factors, including, the nature and seriousness of the misconduct, the damage to the reputation of the Service, the need for specific and general deterrence, the Appellants ability to reform or rehabilitate, the employment history and experience, the Appellants recognition of the seriousness of the misconduct, any personal handicap or hardship and management’s approach to such misconduct, see Williams, supra.

93. The Hearing Officer, in his twelve page decision on penalty, extensively reviewed and considered each of these factors. He found that the misconduct was very serious and was a violation of the policies and values established for the Service.

94. In addition, he found that the actions of the Appellant violated the trust placed in the police force not only by members of the public but also by other members of the Service. Such actions thereby damaged the reputation of the Service, especially when the integrity of the Service is compromised by a higher ranking member. On page four of the Hearing Officer’s decision he states:

Credibility, honesty and integrity are characteristics that are earned. As one elevates him/herself through the ranks of an organization those characteristics are more revered and treasured.

95. The Hearing Officer clearly expressed the view that the Appellant`s public interest was a priority in this case as the conduct does not help to create “the professional image and excellence” that the Service is trying to maintain. Further to this at page 6 of his Decision, he states that the conduct in question here is very serious and “tarnishes” the image of all active members of the Service. He cites it as aberrant behaviour and a betrayal to the community.

96. The Hearing Officer expressed the need to send a clear message to members of the Service and the public that such misconduct will not be tolerated. He noted that general deterrence was important in his penalty consideration, to demonstrate that this behaviour will not be tolerated.

97. After reviewing the Appellant’s lack of co-operation in the disciplinary process and his lack of guilty plea or expression of remorse, the Hearing Officer was not satisfied that Sgt. Mauro recognised the seriousness of his misconduct.

98. The Hearing Officer reviewed the Appellant’s twenty four year employment history and experience and found that, aside from the conviction for discreditable conduct in 2008, there was not very much other information to consider regarding employment. He did find the 2008 conviction to be an aggravating factor.

99. The Hearing Officer reviewed Sgt. Mauro’s community participation and found it to be a mitigating factor.

100. There was no evidence presented that provocation was relevant in this case.

101. The Hearing Officer noted that the outcome of this decision will certainly have an adverse economic impact on the Appellant and his family, and that he considered that in his decision.

102. While the Hearing Officer was not sure whether Sgt. Mauro would rehabilitate or reform as he had not heard evidence supporting that conclusion, he still did not pursue the penalty of dismissal which was an option before him. In reviewing the case law, which supported dismissal for deceitful acts, the Hearing Officer found that this instance was different because the deceit did not affect official police duties involving other victims. He instead opted to choose the penalty of demotion.

103. The Appellant participated in deliberate actions to mislead the disciplinary proceedings. These actions were surreptitious and dishonest. Such conduct calls into question his integrity as a sworn member of the Service under the Act and the policies of the Service.

104. We find the extensive consideration of the sentencing factors to be reasonable.

105. Considering the reasons for decision in totality, we can find no manifest error in principle in the interpretation and application of the facts or law in determining the penalty. The Hearing Officer’s analysis is transparent, intelligible and logical, and the penalty imposed is within the range of acceptable penalties for the misconduct committed.

106. In summary, on the issues posed in paragraph 59, we would answer all in the negative.

Conclusion

107. For the reasons set out above, the appeal is dismissed.

DATED AT TORONTO, THIS 20th DAY OF JUNE, 2013

David C. Gavsie Associate Chair, OCPC

Zahra Dhanani Member, OCPC