Ontario Civilian Police Commission v. Bennett, 2013 ONCPC 2504

OCPC-INQ -#13-04

2013 ONCPC 2504

ONTARIO CIVILIAN POLICE COMMISSION

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 DARYL BENNETT, MEMBER OF THE PETERBOROUGH LAKEFIELD POLICE SERVICES BOARD

RULING ON MOTIONS

Panel: David C. Gavsie, Associate Chair

Zahra Dhanani, Member

Hearing Date: September 18, 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

Richard Taylor, Counsel for Daryl Bennett

Prabhu Rajan and Melanie Goren, Counsel for the Ontario Civilian

Police Commission

Background

1Daryl Bennett is a member of the Peterborough-Lakefield Police Services Board (the “Board”). Mr. Bennett is also the mayor of Peterborough (“Mayor Bennett”).

2As the result of an investigation undertaken by the Ontario Civilian Police Commission (“the Commission”) under Section 25 (1) of the Police Services Act (the “Act”), Mayor Bennett has been charged with engaging in conduct that discredits and compromises the integrity of the Board or the Peterborough Lakefield Police Service (the “Service”), contrary to sections 2, 4, 5, 6, 8, 9 or 13 of the Members of Police Service Boards - Code of Conduct, Ontario Regulation 421/97 (the “Code of Conduct”), enacted under the Act.

3On April 16, 2012, the Commission received a letter from a Peterborough resident requesting an investigation into the conduct of Mayor Bennett in relation to his role as a member of the Board.

4On June 1, 2012 the Commission asked for the Board’s position on whether an investigation was necessary. The Board responded by letter from their Chair dated June 20,

5On September 4, 2012, at an “in camera” meeting of its members, the Commission decided on “its own motion” to conduct an investigation.

6The items mentioned in paragraphs 3 to 5, inclusive, were contained in the materials filed by the Parties regarding the Motions referred to in paragraph 9 below.

7The Notice of Hearing (the “Notice”) was dated January 31,

2013. It alleges that Mayor Bennett has “engaged in conduct that discredits and compromises the integrity of the Board or the Peterborough-Lakefield Police Service”. The following nine specific allegations of misconduct are listed as follows in the Notice:

a) On receiving a confidential complaint about the conduct of Chief Murray Rodd, he did not keep the matter confidential among members of the Board but shared the complaint with members of Peterborough City Council and a member of Peterborough City staff;

b) On receiving a confidential complaint about the conduct of Chief Murray Rodd, he did not immediately bring the complaint to the Board for action;

c) While negotiating the budget for the Peterborough Lakefield Police Service for 2012, he attempted to negotiate directly with Chief Murray Rodd rather than, as a member of Council, with the Board;

d) He publicly expressed disagreement with a decision by Chief Murray Rodd to hire a civilian to the position of Police Service Communications Coordinator which decision was supported by the Board;

e) He authored and sent a letter to the Minister of Community and Safety and Correctional Services (the “Minister”) advocating that Board Chair Nancy Martin’s term not be extended after the Board had

voted down his motion not to support her term being extended;

f) He authored and sent a letter to the Minister alleging that Board Chair Nancy Martin had committed misconduct while not bringing the allegation to the Board for action;

g) He authored and sent a letter to the Minister alleging unsupported allegations of misconduct against Board Chair Nancy Martin;

h) He publicly condemned the Commission’s investigative process, describing it as a “farce” and “anti-democratic”, and he compared the Commission’s investigative powers to those which existed in “pre-war Germany”; and

i) He refused to be interviewed by the Commission during its investigation of this matter.

8A hearing has not yet taken place with regard to the allegations against Mayor Bennett.

Preliminary Motions

9On September 18, 2013, the Panel heard four separate motions brought by Mayor Bennett, to obtain the following Orders:

a) an Order that the Commission lacks jurisdiction to deal with this hearing because the requirements of s. 25 (1) of the Act have not been met, namely that a Motion Record was not provided to Mayor Bennett; and as a result an Order that the subject proceedings be stayed or dismissed pursuant to the Statutory Power Procedures Act (Ontario), R.S.O.

1990, c.S.22 (the “SPPA”);

b) an Order that the Notice is defective because it does not disclose sufficient particulars; and as a result an Order that the subject proceedings be stayed or dismissed pursuant to the SPPA; or in the alternative an Order that the Notice be appropriately amended;

c) an Order that the Commission does not have jurisdiction to hear this matter because of an apprehension of institutional bias; and as a result an Order that the subject proceedings be stayed or dismissed;

d) an Order that transcripts of the Greg Oliver¹

proceedings be provided to Mayor Bennett.

Ruling on the Four Motions

10For the reasons set out below, each of the four Motions is dismissed.

Motion 1: No Motion Record

Submissions

11Mr. Taylor on behalf of Mayor Bennett submitted that the Commission did not comply with the requirement of s.25 (1) because a proper Motion Record was not provided to Mayor Bennett. In his view, a Motion Record is required because of the words “on its own motion” in the preamble to s. 25 (1).

12Mr. Taylor asserted that no compiled record even exists in relation to the Commission’s decision to initiate an investigation into the conduct of Mayor Bennett.

2012, December 3, 2012, and March 4, 2013.

13Mr. Taylor argued that a paper record must exist in order for the parties to assess whether the statutory mandate has been met.

14The legal consequence of commencing an investigation under s.25 (1) of the Act is that a member of a police service board is to refrain from participating in any duties as a member of the board – see s.14 (1) of the Code of Conduct.

15Mr. Taylor argued that because the legal consequences of this investigation are immediate, the action to proceed with an investigation must be undertaken properly and in compliance with the Act.

16There are several other consequences to Mayor Bennett, including the impact on his reputation and being excluded from important matters for a lengthy period of time. Mayor Bennett is the only elected official on the Board and therefore the consequences have even greater impact.

17Mr. Taylor submitted that the de facto suspension of Mayor Bennett from the Board was not correct, because a decision with such consequences requires fairness.

18Mr. Taylor asserted that the SPPA applies to s.25 (4) and s.

25 (5) of the Act. He argued that this meant that the s.25 (5) penalty to remove a member from the Board can be stayed or dismissed, pursuant to s.22 (3) of the SPPA.

19He argued that Mayor Bennett did not have an opportunity to respond to the suspension, and he should have had a chance to respond to some kind of notice that was supported by a motion record.

20Imposing these consequences without notice may offend principles of natural justice, constitute an abuse of process, or be a breach of procedural fairness.

21In conclusion, Mr. Taylor requested that the panel find that the requirements of s. 25 (1) have not been met and as result stay or dismiss these proceedings.

22Mr. Rajan for the Commission, stated that the Commission’s decision on its own motion to investigate does not require a motion record and that there is no statutory or common law precedent to support such a demand.

23Mr. Rajan submitted that there was no error with the Commission’s process. He agreed that fairness was required and asserted that the Commission provided it.

24The Supreme Court of Canada articulated the values underlying the duty of procedural fairness in Baker v. Canada (Minister of Citizenship and Immigration) (1999),

174 D.L.R. (4th) 1993 (S.C.C.). One of the key principles of this decision, is that individuals affected by a proceeding

should have the opportunity to know and subsequently

meet their case fully. Other principles highlighted as critical to procedural fairness were impartiality and transparency of the hearing process. Mr. Rajan argued that Commission procedures fully complied with the criteria set out in Baker, supra.

25Mr. Rajan stated that the investigation into the conduct of Mayor Bennett was initiated on the Commission’s own motion and occurred during an in-camera meeting of the Commission. He asserted that the Commission’s s. 25 (1) powers are discretionary and confidential. That unlike the courts, administrative tribunals have special procedures, have a flexible and nimble process and do not have to import the strictly rigid rules of the courts, see Knight v.

Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653 and Razack v. Ontario Human Rights Commission, 2007 CanLII 48641.

26Mr. Rajan submitted that the term “motion” has different applications in different contexts. It can mean the kind of “motion” brought by a party during a proceeding which requires very specific procedural requirements.

27The Commission’s position is that “motion” in this context is synonymous with “initiative” and “thus refers to a body making a decision on its own behalf or its own impetus.” This is supported by the Commission’s Rules of Practice (the “Rules”) which at Rule 3.1 clearly states that the Commission “may exercise any of it’s powers on its own initiative or at the request of a party.” (emphasis added)

28Mr. Rajan argued that Mayor Bennett was provided with a chance to put forward his case. He refused to participate as he did not allow the investigation team to conduct an interview with him.

29Mr. Rajan submitted that the Commission has kept Mayor

Bennett informed at every stage of the process.

30Mr. Rajan argued that because the SPPA only applies to Commission hearings and not to the Commission’s investigative function, the SPPA’s extensive procedural requirements do not apply to the investigative stage. A minimal level of procedural fairness is required at this stage: see Forestall v. Toronto Police Services Board, 2007 CanLII 31785 (ON SCDC), [2007] O.J. No. 3059 (Sup. Ct.).

31Mr. Rajan said that even given that the standard is low, this was not the appropriate forum to assess the fairness of the Commission process and procedures. That is up to the Divisional Court. Mr. Rajan referenced many cases that

support this principle: see Jeffrey v. Dofasco Inc., 2000

CanLII 20864 (HRTO), Bui v. B.G. Foods Inc. [2001] O.H.R.B.I.D. No. 2 and Shepherd v. Ontario Corp. 1110494 (Deluxe Toronto Ltd.), 2000 CanLII 20533.

32It was asserted that the question to be addressed at this hearing is whether the process in this instance was fair? Mayor Bennett was promptly provided with the decision to investigate, was repeatedly invited to participate in the Commission’s investigation, was informed of the decision to proceed to a hearing and has been provided with full and ongoing disclosure (including the investigative report).

33Mr. Rajan stated that the process was fair and that the applicant’s request for a full motion record is extreme. There is nothing in the Act that says you must provide the whole case to the member upon commencement of the investigation.

34Mr. Rajan submitted that as a consequence of this investigation Mayor Bennett’s employment was not at stake. He is still able to make a living and unlike other disciplinary proceedings there was no potential loss of a license or professional designation.

35Mr. Rajan requested that this motion be dismissed.

Reasons for Ruling on Motion 1

36S. 25(1) (a) of the Act states that:

The Commission may, on its own motion or at the request of the Solicitor General, the Independent Police Review Director, a municipal council or a board, investigate, inquire into and report on,

a) The conduct or the performance of duties of a police officer, a municipal chief of police, an

auxiliary member of a police force, a special constable, a municipal law enforcement officer or a member of a board (emphasis added).

37There is no basis in law or custom to support Mr. Taylor’s argument that a motion record is required pursuant to s.

25(1) of the Act.

38The Supreme Court of Canada in the case of R. v. Lavigne, [2006] 1 S.C.R. 392, [2006] S.C.J. No. 10, 2006 SCC 10, held, at para. 7 that the most current approach to statutory interpretation is where:

The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, and the object of the Act, and the intention of Parliament. (emphasis added)

39Mr. Taylor has based his whole argument on his own assessment that “on its own motion” should mean that a motion record should be created and disclosed. He has drawn this conclusion without presenting any evidence or legal precedence. This form of statutory interpretation is not based on the context or the customary practice of the Commission, but merely an expressed entitlement.

40The Commission has been initiating investigations into the conduct of police board members for decades. Subject to recusal of Members referred to with respect to Motion 3 below, the Commission has always introduced s.25 investigations/hearings at in camera members meetings, the members vote on a motion to proceed with the investigation or not and then the decision on the motion is recorded in the confidential meeting minutes. If the members vote in favour of the motion then the investigation is commenced. This is and has been the

custom of the Commission when it comes to the requirement in s.25 of “on its own motion”.

41Mr. Taylor argued that because the SPPA applies to s. 25(4) and s. 25 (5) of the Act, the proceedings before us could be stayed or dismissed.

42S.25 (5) of the Act reads as follows: Penalties, member of the board

If the Commission concludes, after a hearing, that a member of the board is guilty of misconduct or is not performing or is incapable of performing duties of his or her position in a satisfactory manner, it may remove or suspend the member. (emphasis added)

43S. 3 of the SPPA clearly states:

The Statutory Powers Procedures Act does not apply to the Commission, except to a hearing conducted by the Commission under subsection 23(1), 25(4), (4.1) or (5), 39…

44While we agree that the SPPA does apply to s. 25 (5) of the Act, we disagree that this bears any impact on the motion before us. Section 25 (5) specifically relates to the penalty at the conclusion of a hearing into the conduct of a board member.

45The hearing on the merits, into the conduct of Mayor Bennett, has not yet commenced. Therefore, s. 25 (5) is not yet applicable.

46Therefore, in the case before us, we find that the SPPA does not apply because the Order being sought is with respect to the result of an investigation not a hearing.

47We find that the Commission is not required to disclose a motion record in these circumstances. There is no evidence to support this request and we find that the request for such is a misinterpretation of the law.

48The Order sought on this motion is denied; the Motion is therefore dismissed.

Motion 2: Notice of Hearing is Defective

Submissions

49Mr. Taylor argued that the information contained in the Notice was not sufficient to permit Mayor Bennett to know the case again him.

50Mayor Bennett’s request for particulars of the allegations contained in the Notice is based on his need to properly prepare for and know the case he will be required to meet at the hearing. It was submitted that the Notice fails to fill the requirements of reasonable notice.

51Mr. Taylor argued that the Notice does not provide an adequate correlation between the alleged conduct of Mayor Bennett and the provisions of the Code of Conduct that Mayor Bennett is alleged to have breached.

52Mr. Taylor asserted that the Code of Conduct violations listed in the Notice are too broad and vague. For example allegation number one against Mayor Bennett is that Mayor Bennett shared confidential information. Mr. Taylor argued there is no specific “confidentiality” violation set out in the Code of Conduct.

53There has been an immediate legal and reputational consequence to Mayor Bennett and these consequences are ongoing.

54Mr. Taylor asserted that reasonable notice was not provided because particulars about the allegations were not provided. Mr. Taylor stated there was an obligation to provide particulars and cited the decisions in Seven Eleven Taxi Co. and Brampton (1975) 1975 CanLII 601 (ON HCJ), 64 D.L.R. (3d) 401 (Ont. Div. Ct.) and Shooters Sports Bar Inc. v. Ontario (Alcohol and Gaming Commission), (2008) 2008 CanLII 25052 (ON SCDC), 238 O.A.C. 9 (Div. Ct.). In both cases further particulars were found to be necessary.

55Mr. Taylor said he had made requests to Commission counsel to amend the Notice but this request has not been fulfilled.

56In conclusion, Mr. Taylor requested that the Panel find that reasonable notice has not been provided and as a result, stay or dismiss these proceedings. In the alternative it was requested that the Notice be amended to add further particulars.

57Mr. Rajan said the Commission’s position was that sufficient particulars have been provided to allow Mayor Bennett to know the case he has to meet. He submitted that the record on this motion establishes that Mayor Bennett has been provided with more than adequate information to be able to know the case he has to meet and he has been provided with adequate time and opportunity to respond to the allegations.

58Furthermore, the Commission has been prompt in providing full disclosure and has gone above requirements by providing an “outline” which identifies every aspect of the case against Mayor Bennett.

59Mr. Rajan argued that the allegations against Mayor Bennett are based on his own actions over the last few years and therefore he should be aware of the case he has to meet.

60Mr. Rajan submitted that Mayor Bennett is in a position to know the case he has to meet, and fully able to put forward and prepare a response to the allegations. The Notice need not be amended, because Mayor Bennett has received sufficient notice.

61Mr. Rajan distinguished this case from the facts in Shooters Sports Bar Inc., supra, and Re: Seven-Eleven Taxi Co. Ltd, supra, because in both of these cases there was no information at all that would give the Respondent the necessary details of the case he would have to defend against.

62In this case, Mayor Bennett has been provided with:

a) the Notice of Hearing setting out the allegations of misconduct, and sections of the Code of Conduct that he is alleged to have breached;

b) the Commission’s Investigation Report with attachments, outlining the investigative process, information obtained and conclusions;

c) the Board’s chronology of events with attachments;

d) extensive and ongoing disclosure from the Commission (over 1300 pages and 81 audio and visual files), which includes media clips quoting Mayor Bennett, names of relevant parties and relevant dates of all alleged occurrences; and

e) the “Outline of Allegations” from the Commission, which sets out detailed particulars of the Commission’s allegations and connects them to specific breaches of the Code of Conduct.

63Mr. Rajan therefore asserted that Mayor Bennett does know all of the particulars of the allegations against him and there is no prejudice against Mayor Bennett as he knows the case he has to meet.

64Any more “particulars” in this case are not necessary as the Legislature made a choice to make the language in the Code of Conduct broad instead of narrow so that many behaviors/actions could be caught under the general banner of “a discredit to policing culture”. For the Code of Conduct to enumerate every single action or behavior would not only be onerous but impossible.

65It was submitted that in a recent Commission decision on a very similar motion requesting more particulars in the Notice of Hearing, it was found that the Notice of Hearing combined with the Investigative Report provided the Respondent with sufficient particulars to know the case before him, see Greg Oliver, Member of the Stirling-Rawdon Police Services Board, Decision on Motion (January 15,

2013, OCPC).

66Mr. Rajan asserted that in the case above, there was significantly less specificity in that Notice of Hearing and the panel in that case still found the particulars to be sufficient: see Greg Oliver, Decision on Motion, supra.

67Mr. Rajan pointed to the Commission’s Rules of Practice, stating that even if there were any “defects or irregularities” to the Commission process (which was not admitted), they should be remedied using alternatives other than staying or dismissing proceedings: see Rule 4.1.

68Mr. Rajan requested that this Motion be dismissed.

Reasons for Ruling on Motion 2

69Section 6 of the SPPA requires that a notice of hearing for an oral hearing include: a reference to the statutory authority under which the hearing will be held; the time, place and purpose of the hearing and a statement that if the notified party does not attend at the hearing, the tribunal may proceed in the party’s absence and the party will not be entitled to further notice.

70Section 8 of the SPPA provides that where the good character, propriety of conduct or competence of a party is in issue, that party is entitled to receive reasonable information of allegations against him or her prior to the hearing.

71In reviewing the Notice in this matter, we find that it not only contains the information required in the SPPA but it outlines quite clearly the allegations against Mayor Bennett and therefore the case that has to be met.

72The courts have held in numerous cases that reasonable notice is context driven and the standard for administrative matters is not the same as in criminal hearings. The administrative law duty to supply particulars does not correspond to that imposed under criminal law. In the case of Violette v. New Brunswick Dental Society, 204 NBCA 1, the court found that in the administrative law context, even if all the particulars are not provided in a notice, it is unlikely to be deemed “defective” if the party had most of the relevant information to know the case.

73In the case of Rudinskas v. College of Physians and Surgeons of Ontario, 2011 ONSC 4819 at para. 50, the Court concluded:

That a notice of hearing in a discipline case is not to be construed in the same way as a criminal

indictment. While some Notices of Hearing have contained detailed particulars about allegations relating to named patients… others have been much less detailed, but still have been found to meet the requirements of the code.

74With the Investigative Report, Commission Counsels’ “outline”, is over 1300 pages of evidence and 81 audio and video files; Mayor Bennett is in a position to know the case he has to meet. In addition, Mr. Rajan referred to an Affidavit sworn by Cathy E. Boxer-Byrd, Senior Advisor with the Commission and one of the investigators assigned to Mayor Bennett’s file.

75In the 5th edition of the seminal administrative law text by Sara Blake Administrative Law in Canada, (Markham: Lexis Nexis Canada, 2011), Ms. Blake highlights that a lower level of procedural fairness is required with investigations compared to hearings. At page 15 she states:

Where the authority granted is to investigate and report but not decide, there may be a limited duty to act fairly… An investigation that cannot result in a decision, other than a decision to commence proceedings in court or before a tribunal, attracts the fewest procedural requirements because the subsequent proceeding will provide the opportunity to be heard.

76We find that the Commission has met its duty of fairness with the Notice that it has provided.

77We find that reasonable notice has been provided and that the Notice of Hearing is not defective. It is therefore the decision of this Panel not to order the production of any further particulars. This Motion is dismissed.

Motion 3: Apprehension of Bias

Submissions

78Mr. Taylor submitted that because the Commission initiated this hearing and investigated the matters leading up to the hearing it cannot also “make determinations, adjudicate, and evaluate the propriety of actions, or omissions” of the Commission. This is an inherent and systemic conflict of interest.

79Mr. Taylor argued that this raises a reasonable apprehension of institutional bias.

80Mr. Taylor asserted that for the Commission to conduct a hearing that would review the Commission’s own process and procedures would constitute an improper “merging of functions” which would result in a loss of jurisdiction.

81Mr. Taylor also submitted that the Commission should not hear a matter that it also investigated.

82Mr. Taylor submitted that the Commission has to be very careful when engaging in its separate but related functions, see Gardner v. the Ontario (Civilian Commission on Police Services) 2004 CanLII 2540 (ON SCDC), [2004] O.J. No. 2968.

83Mr. Taylor requested an order finding that if the Commission proceeded with hearing this matter, that would raise a reasonable apprehension of bias and therefore these proceedings should be stayed or dismissed.

84Mr. Rajan stated that the conduct of the Commission was not being reviewed, rather the conduct of Mayor Bennett was being reviewed. There is no conflict of interest or bias, as the Commission is exercising its power to inquire into conduct of a member of the Board which is it’s statutory obligation.

85Mr. Rajan submitted that reviewing the conduct of a board member is critical to the Commission’s role as an oversight body, ensuring a high standard of policing and police oversight in Ontario.

86Mr. Rajan argued that public comments or conduct of a police service board member are very important to the public’s confidence in policing in Ontario.

87Mr. Rajan highlighted the lack of legal authority to support Mayor Bennett’s argument that the Commission lacks jurisdiction to conduct the hearing into this matter.

88Mr. Rajan asserted that the Commission has the jurisdiction to inquire into the conduct of a member of police service boards and Mayor Bennett is a member of the Board.

89Mr. Rajan contended that the application of the test of reasonable apprehension of bias could not lead to a conclusion that Mayor Bennett would not get a fair hearing before the Commission.

90Mr. Rajan submitted that the “informed person test” has not been met and therefore Mayor Bennett has not met the burden to prove bias in this case.

Reasons for Ruling on Motion 3

91In this Motion, Mayor Bennett asks for a permanent stay of proceedings on the grounds that there is a reasonable apprehension of bias due to a lack of institutional impartiality, because of the different functions of the Commission, namely, the overlap between the investigatory and adjudicative functions of the Commission Members.

92The integrity of the administrative justice system is predicated on statute driven decision making bodies, based

independence. The Commission is such a creature of statute, wherein the legislature has carefully and deliberately defined all of its functions with an eye on fundamental justice.

93Given that a tribunal is presumed to be fair and impartial, the threshold for a finding of real or perceived bias is high, and 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).

94Simply 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), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369; Zundel v. Citron 2000 CanLII 17137 (FCA), [2000] F.C.J. No. 679 and Wewaykum Indian Band v. Canada, 2003 SCC 45.

95The threshold for a finding of actual or perceived bias is high. As emphasized by the Supreme Court of Canada, "a mere suspicion is not enough": see R. v. S. (R.D.), [1997]

3 S.C.R. 484 (QL), para. 112.

96The law on apprehension of institutional bias is also well settled. The Supreme Court of Canada articulated a test for reasonable apprehension of institutional bias in 2747-3174

Quebec Inc. v. Quebec (Regie des permis d’alcool), [1996]

3 S.C.R. 919, which at paragraph 44 states:

The determination of institutional bias presupposes that a well-informed person, viewing the matter realistically and practically – and having thought the matter through – would have a reasonable apprehension of bias in a substantial number of

cases. In this regard, all factors must be considered, but the guarantees provided for in the legislation to counter the prejudicial effects of certain institutional characteristics must be given special attention.

97In 2747-3174 Quebec Inc., supra, the court further delineates this test at paragraph 45, stating:

… the informed person’s assessment will always depend on the circumstances. The nature of the dispute to be decided, the other duties of the administrative agency and the operational context as a whole will of course affect the assessment. In a criminal trial, the smallest detail capable of casting doubt on the judge’s impartiality will be cause for alarm, whereas greater flexibility must be shown toward administrative tribunals. (emphasis added).

98This “greater flexibility” was subsequently explored in Ocean Port Hotel Ltd. v. B.C. (General Manager, Liquor Control and Licensing Branch), [2001] 2. S.C.R. 781 which held that if overlapping functions are authorized by statute, the doctrine of reasonable apprehension of bias will generally not apply. At paragraph 24, the court stated:

…given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not. Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected.

1989 CanLII 121 (SCC), 1989 1 S.C.R. 301, para. 22, the Supreme Court of Canada emphasised the importance of the enabling statute. As creatures of statute, administrative agencies are bound by legislation. If the governing statute has empowered the tribunal to carry on multiple functions, including both the investigative and the adjudicative responsibilities, then an allegation of apprehension of institutional bias will not succeed, especially without any extenuating circumstances.

100. These principles were all further clarified recently in a 2012

Decision of the Ontario Divisional Court, Restaurant Innovations Inc. operating as Moose Winooski’s v. Alcohol and Gaming Commission of Ontario, (Court File No.: DC-

1872-10, decision dated February 13, 2012, unpublished),

at para. 47, where the court concluded that “the legislature is entitled to deference in it’s choice of structure for policy based tribunals.”

101. The Act enables the Commission to operate as an independent civilian oversight agency dedicated to ensuring that adequate and effective policing services and oversight by police services boards are provided to the citizens of Ontario.

102. The Commission has powers clearly articulated between s.

21 and s.26 of the Act. Section 22 of the Act outlines these powers which include: recommending and directing compliance measures to polices forces and police services boards; conducting investigations with respect to municipal policing matters; conducting inquiries into complaints made about police services or police service boards and the adjudication of matters resulting from the aforementioned.

103. The Act therefore authorizes investigations and authorizes

Commission members to hold hearings.

104. These roles are separated and administrative walls have been created between these functions to protect the integrity of both roles, see the Commission’s Recusal Policy (the “Recusal Policy”, set out on the Commission’s website). The Recusal Policy states:

The purpose of this Policy is to assure the public that at all times when exercising their powers of decision under the Act, the members of the Commission act with integrity, objectivity, impartiality and in the public interest.

105. The Recusal Policy lays out in detail the structure in place to prevent any real or perceived bias when it comes to the dual function of investigation and hearings at the Commission. The Recusal Policy reads:

Investigations and Inquiries

When the Commission receives a request to investigate a matter, prior to the matter being placed before the Commission Members during a meeting, the request will be reviewed by staff and the Chair will determine if it is likely that the matter may proceed to a hearing.

If it is determined that a request to investigate may proceed to a hearing, the Chair will direct that one or more Members receive absolutely no substantive information about or have any involvement with the matter prior to the commencement of the hearing process.

In particular, after such a direction is made by the Chair, the Member or Members who are subject to the direction shall not be present when the matter is dealt with during

written material concerning the matter.

The Chair’s direction shall be recorded in the Minutes of the first Commission meeting during which the matter is dealt with after the direction has been given. The Minutes of that meeting, and of subsequent Commission meetings during which the matter is dealt with, shall record the absences of the Member or Members.

If the Commission decides that the matter will proceed to a hearing, the Chair will formally authorize one or more of the recused Members, or another person appointed pursuant to the Act, to form a panel to hear and adjudicate the matter.

106. Every member of the Commission is also bound by confidentiality agreements and the Commission’s Conflict of Interest Policy (see the Commission’s website).

107. Mr. Taylor cited Gardner, supra, where it was found that an apprehension of bias existed. In that case, Commission members who presided over the hearing had been in previous meetings where the investigation into Mr. Gardner’s conduct was discussed (including the findings of the investigation). Therefore the members were deemed to be tainted. The case before us is distinguishable from Gardner, supra, because the Members on this Panel due to the Commission’s Recusal Policy, were deliberately excluded from any information regarding Mayor Bennett. They had no prior knowledge of the issues related to Mayor Bennett and were not part of any briefings related to this investigation.

108. In the case before us, there has been no evidence presented that would support the claim of institutional bias.

109. The claim is put forward based on the argument that the very structure of the Commission leads to bias, which as seen in precedents cited above, is not a sufficient argument for policy-based tribunals.

110. Therefore we cannot accept this argument. It is wrong at law and again there is no evidence to support it.

111. It is the conclusion of the Commission that Mayor Bennett has not met the onus of establishing the existence of an apprehension of institutional bias in respect of the upcoming s. 25 hearing into various aspects of Mayor Bennett’s conduct.

112. We decline to grant the order sought. The motion is dismissed.

Motion 4: Disclosure of Greg Oliver Transcripts

Submissions

113. Mr. Taylor stated that the only additional disclosure he is requesting at this point is the transcripts from the Greg Oliver proceedings, asserting that this was a reasonable request.

114. Mr. Taylor submitted that since the Commission conducts most of its hearings in public, all of the materials should be transcribed and made available to the public. This would facilitate the effective and expeditious administration of justice.

Rules encourage the just, fair, expeditious and least expensive determination of the matters in dispute.

116. Mr. Taylor requested that the hearing be delayed, deferred or stayed until the requested disclosure is provided.

117. Ms. Goren, for the Commission submitted that all possible disclosure has been provided to Mayor Bennett, that she did not have access to the transcripts in the Greg Oliver matter and that all other disclosure requests have been complied with. It was asserted that if any further relevant documents come into the Commission’s possession they will be disclosed to Mayor Bennett in a timely fashion.

118. Ms. Goren submitted that she did not have a position on the request for the Greg Oliver hearing transcripts.

Reasons for Ruling on Motion 4

119. Regarding Mayor Bennett’s request for transcripts, it is our understanding that the hearing into the Greg Oliver matter is not yet completed, as a final decision has not been released. It is not within the purview of this Panel of the Commission to grant access to transcripts to a hearing before another Panel, which is not yet completed.

120. The Panel presiding over the Greg Oliver matter has denied the release of transcripts to persons who are not parties to that hearing, prior to the release of the final decision.

121. Mr. Taylor did not provide any reasons or arguments as to why the transcripts from the Greg Oliver matter were relevant in any way to Mayor Bennett’s case.

122. The hearing into the conduct of Mr. Oliver relates to the Stirling-Rawdon Police Services Board and Service. We cannot assume what the connection would be to Mayor

Bennett’s case and the events taking place in Peterborough-Lakefield. Mr. Taylor says his concern is that the decisions in that case will set a precedent. He may obtain the decision when it is released. Completed decisions are immediately published and available on the Commission website for everyone’s access.

123. Furthermore, we disagree with the argument that solely because Commission hearings are conducted in public, transcripts should be provided to anyone who requests them. Transcripts come at a great cost. If the Commission were to provide transcripts of all hearings to anyone who asked, this would become not only a financial but an unmanageable administrative burden. Even if the parties to the Oliver hearing want the transcripts, they have to pay the court reporter’s fees to obtain them. There is no basis to expect the Commission to bear the cost of the transcripts when a non-party requests them.

124. Mayor Bennett has been furnished with substantial disclosure including over 1300 pages and 81 audio and video files.

125. Mayor Bennett has been provided with more than sufficient disclosure to meet his case and that not having the transcripts of the Greg Oliver matter do not disadvantage him from knowing the particulars of the case against him.

126. Even if we had authority to order disclosure of the transcripts of the Oliver Hearing to Mayor Bennett, we are not prepared to grant this request. In any event, we find that this Panel of the Commission has no authority to provide Mayor Bennett with the requested information.

127. It is the ruling of the Commission that transcripts of the Greg Oliver hearing will not be ordered to be provided to the parties in this proceeding. This Motion is dismissed

dismissed.

Footnotes

1. 1There is currently a hearing underway pursuant to s.25 of the Act, into the conduct of Greg Oliver, Member of the Stirling-Rawdon Police Services Board (the “Greg Oliver matter/proceedings”). The hearing days are now complete but the decision has not yet been released. Three decisions on motions have been released on that matter: November 6,