Provincial Constable A.O. (Andrew) Grieve v. Ontario Provincial Police, 2013 CanLII 101393

OCPC-# 13-07

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Grieve v. Ontario Provincial Police, 2013 ONCPC 7

B E T W E E N:

PROVINCIAL CONSTABLE A.O. (ANDREW) GRIEVE

-and-

ONTARIO PROVINCIAL POLICE

APPELLANT

RESPONDENT

DECISION

Panel: Roy B. Conacher, Q.C., Member

John Rodriguez, Member

Hearing Date: January 14, 2013

Hearing 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

James Girvin, Counsel for the Appellant

Norman Feaver, Counsel for the Respondent

Introduction

1. On September 23, 2010, Provincial Constable Grieve (“Const. Grieve” or the "Appellant") was charged with one count of Neglect of Duty contrary to s. 2 (1)(c)(i) of the Code of Conduct (the “Code”) set out in Ontario Regulation 123/98, (now O.Reg. 268/10),and therefore contrary to section 74(1)(a) of the Police Services Act, R.S.O. 1990, c.P.15 (the “Act”) now section 80(1) of the Act.

2. A number of the alleged acts of neglect giving rise to the charge occurred prior to October 19, 2009 when the Act was amended, and since the wording of the relevant provisions of the Code remain unchanged, all references to the Act and Regulations are to those in effect prior to October 19, 2009.

3. It was alleged that Const. Grieve, without lawful excuse, neglected or omitted to promptly and diligently perform a duty as a member of the Ontario Provincial Police (the “OPP” or “the Service”), contrary to Section 2(1)(c)(i) of the Code by failing to properly make notes and maintain his police notebooks between December, 2007 and April,

2010 inclusive, including that:

• several pages are missing

• no entries were made on numerous days

• some entries were not in proper sequence; and

• an entry for August 30, 2009 was found which had fallen out, when there is another entry in his notebook covering that full shift.

4. At the disciplinary hearing held on October 21, 2011, Const. Grieve pled not guilty to the charge. A Statement of Agreed Facts (the “Statement”) was filed into the record as an exhibit. One witness testified and twenty- three exhibits were filed on behalf of the prosecution followed by submissions on behalf of the prosecution and defence.

5. On December 8, 2011, Supt. Robin D. McElary-Downer, (the “Hearing Officer”) found the Appellant guilty on the charge of neglect of duty.

6. On March 30, 2012, the Hearing Officer imposed a penalty of a forfeiture of 80 hours, pursuant to section

85(1)(f), [formerly section 68(1)(f) of the Act] and stated that, “specifically, the Appellant is required to work these

hours at the earliest opportunity and should be completed within the next 6 months”.

7. Const. Grieve appeals the penalty disposition and requests the Commission to vary the decision to a penalty of forfeiture of 24 hours.

Decision

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

Background

9. Const. Grieve joined the OPP in April 1995. Prior to joining the force, he was employed with Revenue Canada as a customs inspector. At the times of the alleged acts of neglect of duty he was a sworn Provincial Constable assigned to the Schreiber Detachment, which is a satellite of the OPP Nipigon Detachment.

10. The Statement contains the following agreed facts:

• On March 30, 2010, while officers of the Organized Crime Enforcement Bureau, assisted by members of the Nipigon OPP, executed a search warrant at a private residence in Terrace Bay, Ontario, a senior officer, D/Sgt. Randy Belluz, located a partial page of a police notebook in the side yard on the property. The page number was 98. Further investigation determined that the page was from the notebook of Const. Grieve;

• On April 15, 2010, Sgt. Paul Michtics received the Appellant’s notebook corresponding with the missing page and he subsequently requested and received all of the notebooks used by the Appellant since the latter’s assignment to the Schrieber detachment. Upon reviewing these notebooks Sgt. Michtics identified a number of deficiencies and submitted an internal complaint form;

• Sgt. Michtics supervised the Appellant from November 2007 to January 2008 and again from January 2010 to April 2010. He did not inspect Const. Grieve’s notebooks while he supervised him and did not have a formal system of inspecting officers’ notebooks;

• Const. Grieve was the Acting Sergeant from

January 2008 to May 2008;

• Sgt. Scott Renn was the Sergeant supervising the Appellant from approximately May 2008 to January 2010. Sgt. Renn did not inspect Const. Grieve’s notebooks during that time;

• There is no evidence that the absences not recorded or missing pages compromised Const. Grieve’s attendance credits, court or

11. The evidence presented by the prosecution indicated that the Professional Standards Bureau undertook an extensive investigation including a detailed review and analysis of Const. Grieve’s notebook entries, DAR (Daily Activity Report) reports, DAR Compliance reports and duty rosters. As a result of the investigation, it was determined that the Appellant failed to properly record a total of 267 days covering duty shifts, rest, training, vacation, bereavement, and sick days in his notebooks.

12. The evidence also consisted of extracts from issued Police Orders that require uniformed officers to maintain the daily journal in form Cat1-22, being the notebooks. The examination of the Appellant’s notebooks revealed that many pages were blank, some appeared out of sequence and the entry for August 30, 2009 in one of the notebooks appeared to be an attempt to replicate the entries in the missing page found in the search on March

30, 2010 but were inconsistent with such entries.

13. The Appellant was interviewed by Professional Standards and during the interview admitted that the partial page found in a yard was from his notebook. He also acknowledged that he may not have entered the alleged missing information regarding vacation, bereavement and sick days and had no explanation for failing to enter shift days. When asked for an explanation for missing entries for rest days, he stated that sometimes he entered those and sometimes he didn’t. He also stated that he was never “called on it when the supervisor looked at the notebook”.

Appellant’s Submissions

14. At the beginning of the appeal hearing, Mr. Girvin tabled an addendum to his Book of Authorities to include: Dinsdale and Ontario Provincial Police, (December 3,

15. Mr. Girvin summarized the findings against the Appellant as follows:

a) between December 2007 and April 2010, he failed to properly maintain his notebook to the requisite standard of the OPP’s policies;

b)

in total, there

were

267

times

identified as

deficiencies of

which

257

were

administrative

deficiencies, and there were 10 days when there

were not any notes in his notebook; and

c) there was “an entry for August 30, 2009 was found, which had fallen out, when there was another entry in his notebook covering that full shift”: see Penalty Decision, March 30, 2012, pages 2,7,8.

16. Mr. Girvin submitted that the actions of the Appellant did not amount to neglect. He argued that where there has been a failure to give proper weight to mitigating factors, or where there is inconsistency with similar cases, or where all relevant factors were not fairly or impartially considered or the penalty is unreasonable, the Commission can vary the penalty: see Carson and Pembroke Police Service (2001) 3 O.P.R. 1479; Krug and Ottawa Police Service, January 21, 2003 OCCPS; and Andrews and Midland Police Service, May 1, 2003, OCCPS.

17. A penalty must be tailored to both punish and deter while not causing undue or excessive hardship and yet sufficient to demonstrate that any recurrence will not be tolerated. A proper balance must be achieved: see White and Windsor Police Service, (November 10, 2000, OCCPS).

18. Mr. Girvin submitted that an adjudicator must approach a matter with an open mind. He argued that in this case, the Hearing Officer began formulating her position on

penalty before hearing and considering all of the evidence. He pointed to her statement: “a review of all evidence, including Exhibit #23, has helped mitigate my original position on penalty” as evidence of a preconceived penalty position.

19. Counsel also referred to the statements of the Hearing Officer that: “public interest is a major consideration in this matter. He (Const. Grieve) is compensated by the Ontario taxpayers to perform the duties of a police officer.” Mr. Girvin pointed out that the only evidence before the Hearing Officer was in relation to deficiencies in his notes which, while an important aspect of his job, are but a part of his duties and responsibilities. He submitted that the Hearing Officer committed a legal error when she noted that the Appellant provided no explanation for not properly maintaining his notebook. He argued that the onus was upon the prosecution to present evidence and the Appellant had no obligation to explain his conduct.

20. Mr. Girvin stated that the Hearing Officer demonstrated a bias towards the Appellant when stating that “Grieve’s misconduct illustrated the height of laziness.” There was no evidence called to support that statement and, in fact, he asserted that there was evidence to the contrary in the Appellant’s positive performance reviews.

21. The Hearing Officer’s flawed understanding of the evidentiary onus was further demonstrated by her statements in reference to the 10 days without notes: “There was no evidence to prove he did anything remotely close to the duties of a police officer”. Mr. Girvin submitted that the statement is contrary to the evidence shown in the DARS reports which confirmed the Appellant was carrying out such duties on the days in question.

22. Mr. Girvin observed that the Hearing Officer grossly exaggerated the circumstances surrounding the finding of the Appellant’s notebook page in the side yard during the

exercise of a search warrant when she stated: “there would be significant public outcry if it became known an officer’s notebook page was found in the yard of an individual who was under scrutiny of a drug search warrant.” Mr. Girvin submitted that the information on the page did not reveal any confidential or personal information.

23. Mr. Girvin noted that the Hearing Officer questioned the sufficiency of the Appellant’s DARS reports stating that she had no way of truly knowing whether he had actually performed those duties. He submitted that she came to that erroneous conclusion about the public’s confidence being shaken if they were aware of such circumstances and she completely ignored the shared responsibilities of the supervisors. He submitted that it was the responsibility of Professional Standards to collect evidence to support that conclusion.

24. Mr. Girvin submitted that the Hearing Officer’s statement “The implications of Grieve’s misconduct are far reaching”, is not supported by any evidence and again fails to consider the responsibility of the Appellant’s supervisors in not correcting the conduct earlier.

25. In reference to the Appellant’s recording of his attendance at a sudden death incident in 2008, Mr. Girvin argued that the fact the Appellant’s notes were brief did not allow the Hearing Officer to conclude that the notes were deficient and did not clearly confirm the extent of the Appellant’s involvement which she described as “alarmingly lackadaisical.” He submitted that there was no evidence to support that conclusion as the appellant could have been the tenth on scene which could account for the limited notes.

26. Mr. Girvin observed that the Hearing Officer commented that she found the public interest to be a “significant aggravating factor”. He further observed that two years

had passed since the “sudden death” occurrence, yet there was no evidence of either external or internal complaints about the Appellant’s conduct in that incident.

27. Counsel asserted that the Hearing Officer’s conclusion that the Appellant had falsified his notes in reference to the August 30 entries for both the missing note and the page entry in the actual notebook for that date was made without any evidentiary foundation. He submitted that what the evidence did indicate was that the lost page was reproduced in the Appellant’s notebook and that the two versions did not correspond with each other. He contended that there was no evidence that either version was falsified and that the best description for both was that they were inconsistent.

28. The Hearing Officer also minimized the apology made by the Appellant’s counsel on his behalf when she stated that she heard no other indication of remorse or recognition of the misconduct. He submitted that there was not a proper weighing of this mitigating factor.

29. Mr. Girvin submitted that the Hearing Officer erred by making an example of the Appellant in order to send a message to the supervisors whom she alleged “were clearly derelict in their duty to inspect his notes.”

Furthermore, Mr. Girvin argued that in the

cases

presented by both prosecution and defence, no

police

officer received a demotion for expressly and solely not

making notes. In fact, all of the cases related deficient notes to a particular incident.

31. While the Hearing Officer accepted the principle that consistency in penalty is the hallmark of fairness, she failed to recognize that all of the cases submitted to her related to a specific negative outcome because of a deficiency in the officer’s notes. Mr. Girvin noted that the majority of the alleged deficiencies in the Appellant’s

notes were “administrative” in nature and even in the case of the 10 day lapse, there was no evidence that this deficiency had a negative impact. He argued that the deficiencies were a performance issue.

32. Mr. Girvin submitted that, in assessing the penalty of forfeiture of 80 hours, the Hearing Officer failed to balance the responsibility of the supervisors as a mitigating factor: see Dinsdale, supra.

33. By her apparent focus upon the Appellant’s notebook deficiencies, counsel argued that the Hearing Officer’s consistently flawed analysis is demonstrated and reaffirmed when she states that the OPP can’t prove that the Appellant worked or that he was productive. Mr. Girvin submitted that the only thing that can be said is that, on a clear and convincing standard, the Appellant’s notes were not in compliance with OPP policy.

34. Mr. Girvin requested the Commission to allow the appeal and vary the penalty to forfeiture of 24 hours.

Respondent’s Submissions

35. Mr. Feaver took issue with the Appellant’s description of the misconduct as “deficiencies” with respect to Const. Grieve’s notebooks. This was only partially correct as the Hearing Officer identified 267 “policy violations” which are different from mere deficiencies.

36. He submitted that the Appellant’s factum fails to address important facts relevant to the appeal, being:

a) several missing pages from the Appellant’s notebook;

b) no entries in the notebook were made on numerous days; and

c) some entries were not made in the proper sequence.

37. Mr. Feaver stated that the Hearing Officer was particularly concerned with the 10 shifts with no note entries and she correctly found that Appellant did not dispute the prosecution’s evidence that Cost. Grieve failed to record any notebook entries during those 10 shifts. The Respondent’s position is that the failure to make notes for these shifts is a very serious infraction of policy undermining police accountability as it raises the issue of whether the Appellant did any police related work on those dates when he was on paid duty. He stated that the conduct amounted to a significant degree of neglect over an extended period of 29 months and that crossed the line of a performance issue and was one that demonstrated a deliberate and reckless disregard for policy.

38. He stated that the Hearing Officer properly considered public interest as a significant aggravating factor. He submitted that an internal or external complaint regarding the Appellant’s conduct is not a prerequisite for a finding that the public interest is an aggravating factor.

39. Other case law was considered by the Hearing Officer involving the falsification or omission of notes to arrive at her penalty decision. These ranged from a penalty of forfeiture of 16 hours to demotion in rank status to second class constable for two years: see Cristiano and Metropolitan Toronto Police Service, February 4, 1997, (OCCPS), and Andrews and Midland Police Service, May 2,

2003, (OCCPS).

40. Mr. Feaver submitted that the Hearing Officer correctly considered the relevant case law in determining that Const. Grieve’s misconduct warranted a penalty sufficiently higher to bring to the Appellant’s attention the seriousness of the misconduct but less than demotion

which is at the high end of the range.

41. He highlighted that in Dinsdale, supra, the officer acknowledged that he was over his head and needed help. This was not the case with Const. Grieve. Mr. Feaver pointed out that, while the issue of failure to supervise was an issue in Dinsdale, this was not the major factor here as the fact was that Const. Grieve, a 17 year veteran officer, did not do his job in accordance with the policies of the OPP.

42. Mr. Feaver submitted that the penalty decision contains no manifest errors in principle or any indication that the relevant sentencing factors were not appropriately considered or that the penalty is unreasonable. Accordingly he submitted that there was no basis for the Commission to intervene and vary the penalty.

43. He submitted that the appeal should be dismissed.

Reasons for Decision

44. The standard of review to be applied on a disciplinary appeal, with respect to factual findings, is reasonableness: see Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9; Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board) 2011 SCC

62, (Can LII).

45. The standard of review with respect to the interpretation of the general law is one of correctness: see Dunsmuir, supra.

46. 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: see Dunsmuir, supra.

47. Our role on an appeal is not to second-guess the decision of a hearing officer but rather to review 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.

48. In limited cases it may be open to the Commission to reach a different conclusion from the trier of fact. However, we should only intervene if there has been an error in principle, or relevant factors have been ignored: see Williams and Ontario Provincial Police(1995) 2. O.P.R.

1047 (OCCPS); Wilson and Ontario Provincial Police November 20, 2006, (OCCPS); Karklins and Toronto Police Service, September 25, 2007, (OCCPS) and

Quintieri and Toronto Police Service (2002) 3 O.P.R. 1509

(OCCPS).

49. An appeal to this Commission is an appeal on the record.

Unlike a hearing officer, we do not have the advantage of hearing and observing the witnesses as they testify. Deference must be accorded to a hearing officer’s

findings, unless an examination of the record shows that

the conclusions cannot reasonably be supported by the evidence. See Blowes-Aybar and Toronto (City) Police Service, 2004 Carswell Ont. 1583 (Div.Ct.).

50. In our view, the issues raised on this penalty appeal are:

(a) Did the Hearing Officer fairly and impartially apply the principles and consider all appropriate and relevant factors of sentencing in imposing the penalty?

(b) Was there an evidentiary foundation for the findings made?

(c) Was there bias on the part of the Hearing Officer in considering the facts and in drawing her

conclusions?

(d) Was there any breach of the principles of natural justice and procedural fairness in the conduct of the hearing?

(e) Was the penalty imposed harsh and excessive in the circumstances?

(f) Were the reasons expressed in an intelligible, transparent and logical manner?

51. Mr. Girvin argued that the Hearing Officer erred by commencing the penalty phase of this process with a preconceived penalty position. Throughout his submissions on this appeal, he maintained that the Hearing Officer carried on a similar biased approach to her considerations of the factual circumstances and the conclusions reached. He pointed to a number of statements contained within the decision to support his position.

52. We have carefully reviewed these statements and the context within which they appear and, with respect, we do not agree that the Hearing Officer was biased in any respect.

53. At the conclusion of the hearing and after having been presented with evidence that the Appellant had failed to comply with the Service’s policies by not maintaining his police notebook in accordance with those policies over a protracted period of years, that there were complete gaps of 10 days when no notes were kept although on duty, that there appeared to be a disregard of the reasons for

accountability reasons, the Hearing Officer properly concluded that this type of misconduct was very serious and warranted a serious penalty. We find that conclusion to be reasonable in the circumstances of this case. Nevertheless, the Hearing Officer went on to indicate, that while she felt that a serious penalty would be in order, she tempered that view by accepting the information in Exhibit #23 being the Appellant’s performance reviews and career history as a mitigating factor.

54. Similarly, the statements of the Hearing Officer that the Appellant’s misconduct illustrated the height of laziness and that there was no evidence to prove that Const. Grieve did anything remotely close to the duties of a police officer, are entirely consistent with the evidence presented and the inferences drawn and conclusions expressed and are reasonable when viewed in the context within which they were made.

55. The statement that the public should have confidence that, when police officers are on duty, they actually work, is also entirely consistent with the evidence. While DAR reports may have been completed, the evidence indicates that such reports are very limited in information and do not disclose the detailed type of information on the officer’s shift activities required by the Service’s note- taking policies. The Hearing Officer’s comments are based upon inferences she was reasonably entitled to draw from these factual circumstances.

56. Mr. Girvin submitted that the Hearing Officer erred in placing the onus upon the Appellant to explain the reasons for the 10 shift days of missing notes, the other

257 days of lack of entries for vacation, training, bereavement and sick days, the out of sequence pages and the August 30, 2009 note page found in the exercise of a search warrant.

evidence, both through the Statement and the evidence of D/Sgt. Bradley McCallum, the onus shifted to Const. Grieve to explain such deficiencies in his notebook entries. While the Appellant took the position that most of the deficiencies were related to matters of an “administrative” nature, it was reasonable for the Hearing Officer to conclude that the explanations given or the lack thereof did not satisfy the onus to establish justification for his failure to comply with policies. Specifically, with reference to the torn page date August 30, 2009 and a completed duplicate page of same date, it was reasonable for the Hearing Officer, in the absence of an explanation, to conclude that the Appellant falsified the contents in an attempt to replicate the torn out page.

58. The Appellant submitted that there should be shared responsibility with his supervisors for the Appellant’s misconduct. He argued that if they had performed their duties, the deficiencies in his notebook entries would have been discovered and dealt with much earlier. He also argued that the deficiencies were performance related in nature and should or could have been dealt with on an informal disciplinary basis. Const. Grieve’ position was that the Hearing Officer was imposing a penalty upon him to set an example to the supervisors and that was unfair.

59. With respect, the Hearing Officer stated that, while a second message needed to be sent to supervisors that “they need to supervise”, she considered the lack of supervision in this case to be a mitigating factor in the penalty she was considering. We find no manifest error in her analysis.

60. The Appellant submitted that the Hearing Officer misconstrued the facts in several instances:

a) firstly, when referring to the page found in a search by stating that “there would be a

significant public outcry”;

b) secondly, when referring to the lack of detailed notes on the Appellant’s attendance at sudden death occurrence, that “the date is unknown given the disrepair of his notes” and that the Appellant’s involvement was “alarmingly lackadaisical” and there was “no way of knowing whether he actually performed the duties” outline in a DARS report.

Mr. Girvin had argued that the first conclusion was a gross exaggeration since there was no confidential or personal information in the missing note Page, and, the second conclusion was not founded on facts known to the Hearing Officer.

61. We have carefully reviewed the record and find that the Hearing Officer was entitled to draw the inferences and arrive at the conclusions as stated in her decision based upon the facts before her. The submission that the missing page found did not contain certain information misses the point that the page should not have been removed from the Appellant’s notebook and this fact clearly violated policies of the Service. The very limited one page of notes on the death investigation, which did not explain his involvement, raises serious questions concerning the Appellant’s performance of his duties at the time.

62. On page 8 of her decision, the Hearing Officer correctly set out the elements to be considered in determining penalty. The Hearing Officer conducted a detailed analysis of each one of those factors. She found that the misconduct was very serious and warranted a significant penalty. She took into account the 267 notebook policy violations that occurred over a 29 month period. She also examined the Appellant’s employment history and concluded that if he puts his mind to it, he is capable of

doing an acceptable job and in some cases an exceptional one. He has the ability to reform or rehabilitate.

63. The Hearing Officer expressed throughout her decision, her concern with the damage to the reputation of the OPP if the misconduct of Const. Grieve became known to the public. She also expressed concerns regarding the accountability of the OPP to the public in terms of ensuring the acceptable performance of duties by officers when on duty. In view of the facts as determined by her, we find the statements made on the public interest component were reasonable as an aggravating factor.

64. In terms of recognition of the seriousness of the misconduct, the Hearing Officer noted that, while she received an apology on behalf of Const. Grieve from his counsel, she noted that there was no admission of guilt. However, she pointed out that “There was no weighty mitigating or aggravating facts to apply to the recognition of misconduct consideration”.

65. The Hearing Officer reviewed the Appellant’s 17 year employment history with the OPP, including his letters of commendation and his favourable performance reviews, and concluded that “his employment history was considered a significant mitigating factor and would be weighed accordingly.” This assessment is appropriate.

66. In her penalty decision, the Hearing Officer focussed upon the issues of specific and general deterrence. With respect to specific deterrence she concluded this factor to be very relevant in this case and that the approximately 100 hours of unaccounted for shift time along with the lack of notes to support DARS reports made it difficult to justify a forfeiture of 24 hours as submitted by the Appellant. She also concluded that anything less than a more serious penalty would lull the Appellant into thinking that he need not recognize his misconduct as serious. In our view, she appropriately considered this factor as aggravating.

67. General deterrence was also considered to be an aggravating factor. The Hearing Officer took the position that adherence to policy of keeping adequate notes as required must be followed by all officers and failure to do so will result in sanctions. This conclusion is reasonable.

68. Failures to comply with police force policies and orders by both officers and their supervisors can seriously compromise investigations, undermine accountability of both the officer and the Service and jeopardize the public’s confidence and trust in the force. We concur with the statement contained in Cristiano, supra, as repeated by the Hearing Officer:

The purpose of an officer’s notebook is to provide a clear, credible record of the officer’s activities and observations of various matters which may be of vital use and later to refresh his memory.

69. We find the Hearing Officer’s consideration of specific and general deterrence to be appropriate and supported by the evidence. We also find her conclusion that the potential damage to the reputation of the OPP was an aggravating factor to be reasonable.

70. Fairness calls for consistency in penalty considerations: see OPP v. Godfrey, March 22, 1989, (O.P.C.); and Blowes Aybar and Toronto Police Service, supra.

71. The Hearing Officer considered prior tribunal decisions submitted by the parties but found that none was completely “on the mark” with this matter. From her analysis of those cases she concluded that the range of penalties was from reprimand to demotion. She noted that “the cases generally evolved around an isolated act specific to note taking.” She indicated that this case was different and involved 267 notebook violations, torn pages, falsified notes and days completely unreported.

She expressed the view that demotion would be excessive but that a much higher penalty was warranted than the

24 hour sanction.

72. We find that the Hearing Officer considered and applied all of the relevant sentencing factors and the penalty she imposed was appropriate in the factual circumstances of this case and cannot be considered harsh and excessive.

73. We find the Hearing Officer’s reasoning to be intelligible, transparent and logical. We can find no errors in the findings of fact made nor the inferences and conclusions drawn based upon those facts nor can we find any error in law justifying intervention by the Commission.

74. In summary, we find that the Hearing Officer identified and considered the correct factors in assessing penalty and that the penalty imposed and the reasons in support thereof fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law”.

75. We answer the questions (a), (b) and (f) posed in paragraph 50 in the affirmative and questions (c), (d) and (e) in the negative.

76. Accordingly, the appeal is dismissed.

DATED AT TORONTO THIS 10th DAY OF JUNE, 2013.

Roy Conacher, Q.C. John Rodriguez

Member Member