Ontario Civilian Police Commission v. Greg Oliver, 2013 ONCPC 2501

2013 ONCPC 2501

IN THE MATTER OF A HEARING UNDER S. 25 OF THE POLICE SERVICES ACT, R.S.O. 1990, C. P.15, AS AMENDED, INTO THE CONDUCT OF GREG OLIVER, MEMBER OF THE STIRLING-RAWDON POLICE SERVICES BOARD

Panel: Noëlle Caloren, Member

Roy Conacher, Q.C., Member

Hearing Date: November 6, 2012

Hearing Location: Belleville, 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

Patrick E. Hurley, Counsel for Greg Oliver

Brian G. Whitehead, Counsel for the Ontario Civilian Police Commission

Introduction

On November 6, 2012, the Panel heard a motion brought by Mr. Oliver to obtain an order abridging the time for service of the notice of motion and supporting documents and for an order “disqualifying Roy Conacher from presiding at the Hearing into the conduct of Greg Oliver as described in the Notice of Hearing dated February 22, 2012.”

Decision

The Panel orally granted the order abridging the time but declined to grant the relief sought disqualifying Roy Conacher from presiding at the hearing of this matter, indicating written reasons would follow. These reasons are set out below.

Background

Mr. Oliver is a member of the Stirling-Rawdon Police Services Board (the “Board”). As the result of an investigation undertaken by the Commission under s. 25(1) of the Police Services Act, R.S.O. 1990, c.P.15 as amended (the “Act”), Mr. Oliver has been charged with engaging in conduct that discredits and compromises the integrity of the Board or Service contrary to sections 4, 5, 7, 8, 9 or 13 of the Members of Police Service Boards - Code of Conduct, Ontario Regulation 421/97. A disciplinary hearing has not yet taken place with regard to the charges against Mr. Oliver.
Chief Brian Foley was, at all material times, the Chief of the Stirling- Rawdon Police Service. As the result of an investigation undertaken by the Commission under s. 25 (1) of the Act, Chief Foley was charged with misconduct. The details of the misconduct are set out below. Chief Foley pled guilty to the charge and a penalty has been imposed upon him also as set out below. Mr. Conacher was one of two panel members who heard and decided Chief Foley’s case. The decision was issued August 21, 2012.
The Motion herein is brought on account of an alleged factual connection between the charges brought against Mr. Oliver in this matter (the “Oliver Matter”) and those relating to the prior s. 25

proceeding regarding the conduct of Chief Brian Foley (the “Foley

Matter”).

In the Notice of Motion it is stated that a reasonable apprehension of bias would arise if Mr. Conacher were allowed to continue presiding at the hearing of this matter given that the allegations set out in the Notice of Hearing relate to Mr. Oliver’s conduct towards and relationship with Chief Foley; and that Mr. Oliver disputes the accuracy of the evidence adduced at Chief Foley’s hearing and the findings made by the Decision Panel.
The Oliver Matter relates, at least in part, to actions which Mr. Oliver is alleged to have taken in respect of Chief Foley, more particularly comments made about the Chief and the improper release of the Chief’s employment contract.
The focus of the hearing in the Foley Matter was an allegation that the Chief had given a female member of the public a can of pepper spray for her own protection, contrary to the Police Services Act and the Code of Conduct being a Schedule to Ontario Regulation 123/98.
An Agreed Statement of Facts was introduced at the hearing in the Foley Matter, in which Chief Foley admits to engaging in the alleged misconduct. It contains the following statements:

f. The Chief met with Ms. K to tell her of his concern. To help her protect herself, he gave Ms. K a canister of pepper spray. He told her to keep it temporarily until she purchased her own wasp or bear spray. He told her not to tell anyone that she had the pepper spray and to use it only to protect herself from her ex-husband;

g. The Chief knew that giving her the pepper spray was likely wrong, but to protect Ms. K from potential violence, he did it anyway.

Additional evidence introduced at the hearing of the Foley Matter included the testimony of Shawn LaPalm, the Chair of the Board between 2008 and 2011, who testified as to the Chief’s good character and the improvements which he made to the Stirling-Rawdon Police Service (“the Service”).
The August 21, 2012 decision, which was based on the contents of the Agreed Statement of Facts, focused on the penalty to be imposed upon Chief Foley following his guilty plea.
The evidence filed in support of this motion consists of an affidavit sworn by Sine Smith, a secretary employed by the firm providing legal representation to Mr. Oliver. That affidavit sets out the evidentiary basis for the Motion in two paragraphs which read as follows:

5I am advised by Patrick Hurley and believe that Mr. Oliver disputes the accuracy of evidence that was adduced before the Ontario Civilian Police Commission at Chief Foley’s hearing.

6I am further advised by Mr. Hurley and believe that the conduct of Chief Foley that was the subject matter of the Hearing will be an important issue at Mr. Oliver’s hearing and that findings made by the adjudicators about his conduct will be disputed by Mr. Oliver.

The affidavit contains no details regarding the alleged lack of accuracy in the evidence adduced at Chief Foley’s hearing, nor does it shed light onto how the conduct of Chief Foley might constitute an important issue in the inquiry into Mr. Oliver’s conduct.

Mr. Oliver’s Submissions

The details provided to the Panel at the hearing of this Motion were

conveyed by Mr. Oliver’s counsel in his submissions.

Mr. Hurley advised the Panel that an inquiry into the conduct alleged in the Notice of Hearing would involve the need to canvass two events, namely the pepper spray incident in which Chief Foley was involved, and the extension of Chief Foley’s term as Chief pursuant to a contractual agreement. The events are allegedly interrelated. Mr. Hurley explained that Mr. Oliver was appointed to the Board following these particular events, and proceeded to inquire about Chief Foley’s contract in his capacity as a Board Member. He suggested that the pepper spray incident and the extension of Chief Foley’s contract were connected on account of the implication of Shawn LaPalm, the then Chair of the Board, who was involved in a personal relationship with the woman to whom Chief Foley had given the pepper spray, and was allegedly instrumental in securing the extension and betterment of the Chief’s employment contract. Mr. Hurley submitted that although on their face these facts may not appear to be connected, Mr. Oliver would, in the context of the hearing into his conduct, put forth evidence attesting to the existence of a connection between them, thereby putting Chief Foley’s conduct into proper perspective.
Mr. Hurley went on to explain that at the hearing into his conduct, Mr.

Oliver would argue that he had a legitimate basis for engaging in the impugned conduct, ultimately seeking to establish that it was neither unfair or harassing in nature.

Mr. Hurley suggested that although the scope and details of the evidence in the Oliver Matter could not be precisely anticipated at this juncture, the evidence tendered would be at odds with the evidence put forth at Chief Foley’s hearing, and that given the factual connection between the matters, this would place Mr. Conacher in a position where he could be seen by a reasonable observer as being unable to conduct a fair hearing.
Mr. Hurley was careful to point out that Mr. Oliver is not asserting actual bias with respect to Mr. Conacher, simply that an involvement and a decision by Mr. Conacher in this matter would be seen to be unfair given his participation in the Foley Matter. Mr. Hurley argued that in the circumstances, the most appropriate relief would be Mr. Conacher’s recusal and the appointment of a new Member to the Panel.
In support of his contention that Mr. Oliver’s right to a fair and impartial hearing would be compromised through Mr. Conacher’s continued involvement in the matter, Mr. Hurley cited two cases: see Austin v. Ontario Racing Commission, 2007 ONCA 587 and Bailey v. Barbour, 2012 ONCA 325.

Arguments of the Commission

On behalf of the Commission, Mr. Whitehead argued for the dismissal of the Motion, first, on the basis of a lack of evidence put forth by Mr. Oliver to establish the alleged apprehension of bias; and secondly, on the basis of an absence of any factual connection between the Foley Matter and the Oliver Matter on the issues to be decided. He noted that the Parties are in agreement regarding the legal test to be applied.
First, Mr. Whitehead argued that the record filed by Mr. Oliver was deficient as it did not establish an allegation of reasonable apprehension of bias, given that the affidavit of Ms. Smith was devoid of any relevant particulars or evidence. He argued that the affidavit should be given no weight given the complete lack of probative value of the statements it contained. In this regard, Mr. Whitehead questioned why Mr. Oliver had not chosen to swear an affidavit in support of his motion such that meaningful cross-examination could

have been undertaken. Mr. Whitehead further noted that Mr. Hurley’s explanations at the hearing of the Motion could not be considered evidence upon which to make an informed decision and amounted to speculation. Mr. Whitehead stressed that the allegation of a reasonable apprehension bias cannot be based on a simple suspicion or suggestion made by counsel as to evidence that may be adduced at the hearing.

Secondly, Mr. Whitehead submitted that Mr. Oliver had no standing to dispute the accuracy of the evidence and findings in the Foley Decision and could not seek to do so indirectly in the context of the motion. Mr. Whitehead highlighted that the only record as to what occurred in the Foley Matter is found in the decision itself, which does not establish any connection between the Foley Matter and the Oliver Matter. In particular, Mr. Whitehead noted that Mr. Oliver was neither a party nor a witness in the Foley Matter and that his name appears nowhere in the decision. He also pointed out that the Foley decision contains no reference to any of the alleged conduct as set out in the Notice of Hearing in this matter.
Mr. Whitehead argued that Mr. Oliver’s conduct as it will be reviewed in this matter has no connection with Chief Foley’s conduct as it was dealt with in the Foley Matter, stressing that Mr. Oliver’s conduct relates to his role as a Board member and his conduct vis-à-vis other former or current Board members.
For the foregoing reasons, Mr. Whitehead suggested that Mr. Oliver’s Motion essentially constitutes a form of "disguised appeal" of the Decision issued in the Foley Matter which Mr. Oliver is not within his right to put forth given that he was not a party in that proceeding.
Mr. Whitehead cautioned the Panel that although actual bias was not being alleged by Mr. Oliver, an allegation of reasonable apprehension of bias must also be treated as a serious allegation given the presumption in law that a member of a tribunal will act fairly and impartially in the absence of evidence to the contrary. Mr. Whitehead also reminded the Panel that the threshold for a finding of actual or perceived bias is high and that, as emphasized by the Supreme Court of Canada, "a mere suspicion is not enough": see R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 (QL), para. 112.
In conclusion, Mr. Whitehead contended that the application of the test of reasonable apprehension of bias could not lead to a conclusion in this case that Mr. Oliver would not get a fair hearing before Mr. Conacher or the Commission, pointing out that Chief Foley’s conduct,

as confirmed in the Agreed Statement of Facts in the Foley decision, was based on a completely different set of facts, unrelated to those at issue in the Oliver Matter. Mr. Whitehead also stressed that the Foley Matter did not involve Mr. Oliver and that no findings of facts or credibility were made against Mr. Oliver or relating to the dealings between Chief Foley and Mr. Oliver; and that Mr. Oliver’s conduct, as described in the Notice of Hearing and as it relates to Chief Foley has no connection with the Foley decision. Finally, Mr. Whitehead highlighted that the scope of the hearing into Mr. Oliver’s conduct is much broader, and also addresses Mr. Oliver’s conduct in relation to the Board and former members of the Board.

Mr. Whitehead also pointed out that the Applicant had not served the Motion material in accordance with Rule 10.3 of the Commission’s Rules of Practice. He submitted that no reason was given for the late filing.

Decision

From this Panel’s perspective, three issues required consideration in this Motion:

a) Did Mr. Oliver, the moving party in this case, meet the onus placed upon him to establish the existence of a reasonable apprehension of bias that would flow from Mr. Conacher’s continued involvement in this matter?

b) Did the record, supplemented by Mr. Hurley’s submissions regarding the existence of potentially conflicting evidence, meet the threshold test and suggest that Mr. Conacher could not, having been a panel member in the Foley Matter, approach the hearing in this matter with an open mind?

c) Should the panel order the abridging of the time for serving the Motion materials?

The crux of the dispute between the Parties is not a legal one, but rather of a procedural and factual nature. The Parties agree that the issue to be addressed is the existence of a reasonable apprehension of bias and that a tribunal is presumed to be fair and impartial; that the threshold for a finding of real or perceived bias is high; and that the moving party has the onus of establishing its existence: see Austin v.

Ontario Racing Commission, 2007 ONCA 587 (Can LII); Bailey v. Barbour, 2012 ONCA 325 (Can LII).

Simply stated, the test of apprehension of bias as it has been articulated and reiterated in the jurisprudence is “[W]hat would an informed person, viewing the matter realistically and practically- and having thought the matter through- conclude”: see Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1

S.C.R. 369; Zundel v. Citron 2000 CanLII 17137 (FCA), [2000] F.C.J.No. 679; Wewaykum Indian

Band v. Canada, 2003 SCC 45.

It is the conclusion of the Commission that Mr. Oliver has not met the onus of establishing the existence of an apprehension of bias in respect of the upcoming s. 25 hearing into various aspects of Mr. Oliver’s conduct.
In arriving at this conclusion, the Panel could not ignore the lack of material evidence which it had to consider in support of the Motion. Mr. Oliver contends that there is a material connection between the facts in the Foley Matter and facts that would need to be put into evidence in the Oliver Matter, and that this connection is at the root of the reasonable apprehension of bias he argues would arise if Mr. Conacher were to continue his involvement as a decision maker in the matter. The statements contained in Ms. Smith’s affidavit which address the alleged connection are limited in their scope to firstly asserting that Mr. Oliver will dispute the accuracy of the evidence introduced at the hearing of the Foley Matter at his own hearing; and secondly suggesting that Chief Foley’s conduct will be an important issue at Mr. Oliver’s Hearing.
We agree with Mr. Whitehead’s contention that the affidavit contains no particulars in support of statements made, save and except the contents of the Foley Decision which is an exhibit to the affidavit. In our view, these unsupported statements of the affiant are insufficient to support the allegation of apprehension of bias made in the context of this Motion.
We note that it was open to Mr. Oliver to present more detailed and direct evidence as to the alleged connection between the two matters and question why the explanations provided by Mr. Hurley in argument could not have been provided in the form of evidence in accordance with the general rules on the introduction of evidence in motions.
In our review of the evidence put forth by Mr. Oliver to establish the

existence of a reasonable apprehension of bias on Mr. Conacher’s part,

we were mindful not to limit our assessment to what could be characterized as technical or procedural reasons alone. Accordingly, we considered Mr. Hurley’s submissions as to the existence of potentially conflicting evidence in this matter and in the Foley Matter, alongside the Notice of Hearing and the contents of the Foley Decision.

Following this review, the Commission remains hard pressed to see any material connection between the two cases which could give rise to a reasonable apprehension of bias on Mr. Conacher’s part.
First, as was pointed out by Mr. Whitehead, Mr. Oliver was neither a party nor a witness at the hearing of the Foley Matter. Secondly, as concerns the Notice of Hearing in this matter, while there is no doubt that some of the conduct referred to relates in part to Chief Foley, in that Mr. Oliver is alleged to have improperly made Chief Foley’s employment contract public; made inappropriate comments regarding Chief Foley and conducted himself in an antagonistic and disrespectful manner with Chief Foley, we do not see how these allegations could not be impartially or fairly assessed by Mr. Conacher.
As we understand Mr. Hurley’s submissions, certain behaviour engaged in by Chief Foley may constitute an explanation for Mr. Oliver’s conduct as described in the Notice of Hearing and will be referred to at his client’s hearing. Accepting this submission as accurate and truthful, on the basis of all of the evidence and information before us, we remain unable to conclude that this alleged factual link would place Mr. Conacher in a position of appearing to be unable to conduct a fair hearing. At issue in the hearing of this matter will be the conduct of Mr. Oliver, not that of Chief Foley. This is so regardless of whether Mr. Oliver’s conduct was in reaction to actions taken by Chief Foley. Further, it is significant from the Panel’s perspective that the Foley Decision dealt only with the matter of the penalty to be imposed, as the parties to the hearing proceeded on the basis of an Agreed Statement of Facts in which Chief Foley admitted to engaging in the misconduct alleged against him. We do not believe that the determination and imposition of a penalty upon Chief Foley for his admitted misconduct, which required no finding of credibility, would lead a reasonable person to conclude that Mr. Conacher could lack an open mind in his assessment of Mr. Oliver’s conduct as it is described in the Notice of Hearing.
On the basis of our consideration of the issues, we find that the standard required to support the recusal of Mr. Conacher in this matter has not been met and we therefore answer questions (a) and (b) in paragraph 28 hereof in the negative and decline to grant the order

sought disqualifying Mr. Conacher from presiding at the full hearing of matter. We have also determined that it would not be appropriate in the circumstances to decide the issues in this Motion on procedural grounds and accordingly an order is granted abridging the time for service of the Motion materials.

DATED AT TORONTO THIS 14th DAY OF JANUARY, 2013

Noëlle Caloren

Member, OCPC

Roy Conacher, Q.C.

Member, OCPC