Ontario Civilian Police Commission v. Daryl Bennett, 2013 ONCPC 2505

Ontario Civilian Police Commission

OCPC-INQ -#13-05

2013 ONCPC 2505

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

RULINGS ON MOTION AND CROSS-MOTION

Panel: David C. Gavsie, Associate Chair

Zahra Dhanani, Member

Hearing Date: December 16, 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:

Prabhu Rajan and Melanie Goren, Counsel for the Ontario Civilian

Police Commission (Moving Party)

Richard Taylor, Counsel for Daryl Bennett (Responding Party)

Background

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

2. As 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.

3. On 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.

4. On 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,

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

7. The items mentioned in paragraphs 3 to 5, inclusive, were contained in the materials filed by the Parties.

8. The Notice of Hearing 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.

Preliminary Motion

8. By Notice of Motion dated November 13, 2013, counsel for the Commission requested an Order amending the Notice of Hearing to add two additional allegations, namely:

a) On receiving an e-mail from the Board about a confidential meeting, he (Mayor Bennett) shared the e- mail thread with members of City Council; and

b) He (Mayor Bennett) made a number of disparaging and/or disrespectful remarks regarding the Chief, the police, the Board and the Commission.

Rulings on Motion and Cross-Motion

9. Our Rulings are as follows:

a) the Motion is granted;

b) the Commission shall serve and file an amended Notice of Hearing within two business days following the date of these Rulings;

c) the Respondent shall not be required to lead evidence at the Hearing before February 3, 2014; and

d) except as provided above, the Cross-Motion is dismissed.

Submissions of Moving Party

10. Mr. Rajan, on behalf of the Commission, stated the Notice of Hearing need not be amended for the Panel to consider the two allegations. However, if the Panel determines that it is required, the Commission is seeking an Order to amend it.

11. After providing nine allegations of misconduct, the Notice of

Hearing states:

By these and related statements and acts, Mayor Bennett has engaged in conduct that discredits and compromises the integrity of the Board or the Peterborough Lakefield Police Service.

12. The Commission has provided Mayor Bennett with all relevant documents that have come into the Commission’s possession:

a) On March 5, 2013, at the initial Hearing day in Peterborough, the Commission gave Mayor Bennett its investigative report with appendices, including audio recordings of all witness interviews, a copy of the Board’s chronology of events which the Board had given to the Commission together with the Board’s background media files;

b) Later that day, the Commission received a number of media files which were disclosed to Mayor Bennett on March 14, 2013; and

c) As further documentation which could be relevant to the Hearing came into the possession of the Commission, same was promptly disclosed to Mayor Bennett. For example, media clippings, notes of investigators, training materials and other information were provided to Mayor Bennett on May 21, June 6, July 3, July 29 and September 13, 2013.

13. On June 18, 2013, the Commission provided to Mayor Bennett a detailed Outline of Allegations (the “Outline”) to supplement the Notice of Hearing, without being required to do so. The Outline identifies Code of Conduct sections alleged to have been breached with details of all relevant events including dates, names and media sources being relied upon by the Commission. The Outline contained the fact that the Commission is no longer alleging a breach of s.4 of the Code of Conduct which was stipulated once more at the Hearing on June 26, 2013.

14. The Outline consists of 14 pages and 68 paragraphs and is dated June 18, 2013.

15. Both allegations which are the subject of the Motion were contained in para. 2 of the Outline. The preamble to para.

2 reads:

The Commission relies on the following allegations as a basis for its position that Mayor Bennett contravened the Code of Conduct: (see para. 3 and para. 11 of para.

2 of the Outline).

16. There is no requirement in the Act or the regulation enacted thereunder that all allegations to be considered by the Panel must be stated in the original Notice of Hearing. Similarly, there are no such rules in either the Commission’s Rules of Practice or in the Statutory Powers Procedure Act, R.S.O. 1990, c. s.22 (the “SPPA”).

17. S.6 of the SPPA addresses the requirements for a notice of hearing. It has to refer to the statutory authority under which the hearing is to be held, as well in the case of an oral hearing, a statement of the time, place and purpose of the hearing.

18. S. 8 of the SPPA states that where “the good character, propriety of conduct or competence is in issue, that party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto”.

19. The Commission’s Rules of Practice in s.3 provide a large amount of discretion to the Commission in exercising its powers and guiding its own procedures.

20. The specific form or content of a notice of hearing is governed by administrative law principles of natural justice and procedural fairness. The Panel is not precluded from considering the two allegations being the subject of the Motion. As was stated by the Divisional Court in Re Herman Motor Sales Inc. et al and Registrar of Motor Vehicle Dealers and Salesmen (1980), 290.R.(2nd) 431:

It would be most unfortunate if the procedural restrictions imposed upon a Tribunal such as this were to be such a narrow nature that it could not look into all matters properly coming before it requiring investigation. So long as reasonable notice of the charges which the respondent were facing has been given to them, there can be no basis for arguing that a supplementary notice is invalid.

21. Mayor Bennett has received full and complete disclosure and is fully aware of the case he has to meet and has had sufficient time to prepare his response.

formally the complaints and amendment process. The discipline process in a health care context contains distinct steps in how allegations of professional misconduct or incompetence are placed before a Discipline Committee – see Henderson v. College of Physicians and Surgeons of Ontario, 2003 CanLII 10566 (ON CA), [2003] O.J. No 2213 (Ont. C.A) at paras. 26, 22 and 28.

This is in stark contrast to the wide degree of discretion given to the Commission and the lack of legislated procedure.

23. Although the Rules of Civil Procedure RRO, Reg. 194 are not applicable to the Commission, they do provide guidelines on how to amend pleadings. Rule 14.09 provides:

An originating process that is not a pleading may be struck out or amended in the same manner as a pleading

24. Rule 26.01 provides:

On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

25. Rule 26.02 reads in part:

A party may amend the party’s pleading

(a)without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the

action…

26. The Ontario Court of Appeal considered and elaborated on

Rule 26.02 in the case of Marks v. Ottawa (City), 2011

ONCA 248 at para 19.

Although the general rule is that amendments are presumptively approved, there is no absolute right to deny amendments where appropriate: Daniele v. Johnson (1999), 1999 CanLII 19921 (ON SCDC), 45 O.R. (3rd) 498 (Div. Ct) at paras

11-15. Further, I would agree that the proper factors to be considered are those first set out in Simrod v. Cooper, [1952] O.W.N. 720 (4.C.J. Master) at p. 721, aff’d at p. 723 (4.C.J) and quoted with approval in Vaimen v. Yates (1987), 1987 CanLII 4345 (ON HCJ), 60 O.R. (2nd) 696 (4.C.J) at p.

698, which can be summarized as follows:

• An amendment should be allowed unless it would cause an injustice not compensable in costs

• The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious

• No amendment should be allowed which, if originally pleaded, would have been struck

• The proposed amendment must contain sufficient

particulars.

27. Mr. Rajan referred to Human Rights cases as another tribunal regime which could provide assistance – see Incorporated Synod of the Diocese of Toronto v. Ontario (Human Rights Commission), [2008] O.J. No. 1692 (Div. Ct.), para. 15; also Persaud v. Toronto District School Board, 2008 HRTO 12; and also Wozeilek v. 7-Eleven Canada, 2009 HRTO 926.

28. The two allegations being the subject of the Motion are closely related to the nine in the Notice of Motion. They address similar themes regarding Mayor Bennett’s conduct and alleged disrespect for members of the policing community and his fellow Board members. They form part

largely expand the scope of the inquiry.

29. Mr. Rajan referred to Respondent’s factum with respect to the Motion, specifically para. 4 which reads:

The Motion Record of OCPC indicated that only two additional allegations are to be added to the Notice of Hearing. In fact, the nature of the request pertains to thirteen (13) distinct additional allegations.

30. Mr. Rajan stated that was not the case. There are only two, not thirteen, and particulars are provided in the Outline. Most are media reports containing a quote from Mayor Bennett. Mayor Bennett has not disputed the facts but takes the position that he has the right to make such comments.

31. Counsel stated that the additional allegations envisaged by the Motion do not constitute a joinder issue as was the situation in Henderson, supra. In that case, the hearing had already begun and the attempt was to add new allegations by or about a different individual.

Submissions of Responding Party

32. Counsel for Mayor Bennett stated that the Motion materials filed by the Commission do not include an amended Notice of Hearing.

In fact, the nature of the request in the Motion

raises

thirteen additional allegations, none of which

were

specifically referenced in the Notice of Hearing.

34. Mayor Bennett has filed a Cross-Motion that the hearing be conducted in relation to only the nine allegations in the Notice of Hearing or related conduct specifically correlated to those nine allegations. In the alternative, the Cross-

Motion notes items, particulars, and positions to be ordered that the Commission comply with if the Panel rules in favour of the Motion.

35. The thirteen additional matters all pre-date the beginning of the hearing on March 5, 2013. However, the first indication that the Commission contemplated amending the Notice of Hearing was during a teleconference on October

28, 2013.

36. Mayor Bennett has identified his freedom of expression and freedom of association as matters relevant to the review or consideration of his conduct. It has been agreed that these Charter of Rights issues will be subsumed into the hearing process, and be dealt with on the basis of the evidentiary record of the full Hearing.

37. The thirteen additional allegations all involve the application of fundamental freedoms recited in the Charter of Rights and should be dealt with by way of a proper and full evidentiary record.

38. Prejudice is being caused to Mayor Bennett including his de facto suspension from engaging in duties of the Board on which he is the only elected representative from Peterborough City Council. The Hearing will be extended and/or delayed by the thirteen additional allegations and further witnesses are anticipated to be called. The rules of natural justice must be assessed in relation to all of the circumstances.

39. The Commission in light of its failure to bring the Motion earlier – on June 26 or September 18, 2013 – is now precluded by estoppel, or laches or due process from adding thirteen events or processes to the Hearing process.

40. Mr. Taylor on September 18 had raised concerns about the

“mushrooming” of allegations.

41. The Motion represents a joinder of thirteen new allegations not previously identified in the Notice of Hearing, and is not merely a “defect in form”.

42. No motion to amend the Notice of Hearing was ever communicated, advanced or initiated throughout the period from January 31, 2013 until oral notification was provided on October 28, 2013. The Commission had clear opportunity to do so but did not. The Commission must establish special circumstances to justify amending the Notice of Hearing at this late stage with the Hearing scheduled to start hearing evidence on January 6, 2014.

43. Reliance on the Rules of Civil Procedure, supra, must be carefully evaluated because they refer to pleadings. The Commission does not have comparable rules or requirements. The Notice of Hearing is in compliance with s.6 and s.8 of the SPPA.

44. Amendments to pleadings, pursuant to the Rules of Civil Procedure, are not absolute and not allowed if they would cause an injustice, prejudice or are capable of being undertaken without the need for an adjournment – see Marks v. Ottawa, supra.

45. The Outline was provided to Mayor Bennett to address the request for particulars, and as it provides – “as a courtesy and not based on any alleged requirement”. It does not qualify as a notice of hearing and its status cannot now be altered.

46. The Motion of the Commission should be dismissed.

Responding Party’s Cross-Motion Submissions

47. If the Panel determines that the Notice of Hearing may be amended in whole or in part, then the Responding Party requests the following to ensure due process:

a) the Commission serve and file an amended Notice of

Hearing forthwith;

b) the Commission provide further information, particulars, and request for position or confirmations as identified in the Cross-Motion Record at tab 16;

c) additional days be set for the Hearing and be confirmed;

d) a declaration be made as to whether an adjournment is just and appropriate;

e) the Commission provide a Compendium of Documents

relied on with respect to each new allegation, correlating a document to each allegation and identifying the document and describing its relevance in correlation with each allegation; and

f) any further Order as may be just and appropriate.

Reasons for Rulings

48. By its Motion, the Commission seeks to amend the Notice of Hearing by adding two new allegations. Counsel for the Commission stated that while he did not believe he had to bring a Motion to amend the Notice of Hearing, he did so basically out of an abundance of caution.

49. There is nothing in the Act, the Regulations enacted thereunder or in the Commission’s Rules of Practice which address the amendment of a notice of hearing. Therefore one has to look to the SPPA – see s.3 of the SPPA.

50. S.6 of the SPPA sets out some requirements for notice and hence a Notice of Hearing. Further elaboration is found in

Powers Procedure Act, Julie Maciura and Richard Steinecke, Canada Law Book, 1998 (the “Annotated SPPA”). However, there is no specific reference to amending notice documents.

51. Counsel have suggested that guidance on the question may be gleaned from the Rules of Civil Procedure, or from the rules of other tribunals. However, the Rules of Civil Procedure do not apply to proceedings before the Commission. Further, the rules of other tribunals were no doubt conceived, at least in part, to meet the requirements, practice and/or subject matter of a specific tribunal.

52. Rule 3.3 of the Commission’s Rules of Practice enables the Commission to make rulings and orders as it deems necessary. Rule 3.5 is also applicable to this issue. As a matter of practice, it is our view that a change or alteration to the case that must be met by a person who is subject to an allegation of a breach of a Code of Conduct, should be made by way of a Motion to the Commission. Therefore, the Motion to amend the Notice of Hearing is correctly before the Panel.

53. The Notice of Hearing dated January 31, 2013 set out what the purpose of the Hearing would be, namely to consider the conduct of Mayor Bennett as a member of the Board. It continues: “The conduct in question involves Mr. Bennett’s execution of his duties as a member of the Board, and in particular…”. There follows 9 bullet points containing allegations.

54. The two paragraphs immediately following the 9 allegations read:

By these and related statements and acts, Mr. Bennett has engaged in conduct that discredits and compromises the integrity of the Board or the…Service.

The hearing will determine whether Mr. Bennett’s conduct as described above constitutes a breach of sections 2, 4, 5, 6, 8 or 13 of the Members of Police Services Boards – Code of Conduct, Ontario Regulation

421/97.

55. The Notice of Hearing meets the requirements of s.6 of the

SPPA.

56. The issues for determination are:

a) should the Notice of Hearing be amended as sought by the Motion; and

b) if the answer to (a) is yes, what, if any, conditions should be imposed particularly in light of the Cross-

Motion.

57. It is clear from case law that notices containing complaints or discipline matters can be amended even during a hearing – see the quotation from Re Herman Motor Sales Inc., supra, at para. 20 above. Also, as is stated in the Divisional Court decision of Incorporated Synod of the Diocese of Toronto v. Ontario (Human Rights Commission), supra, in para. 15: “Indeed, subject to principles of fairness (such as reasonable notice and prejudice) complaints can be amended in the course of hearings to add new grounds or allegations.”

58. The Hearing in this matter is scheduled to recommence on January 6, 2014 and continue for that full week. A further five dates have been scheduled in February, the first of which is February 3.

will begin its evidence on January 6, 2014. If Mayor Bennett does not have to present his evidence until February 3, 2014, the Panel believes no prejudice will be caused to him if the Motion is granted.

60. The Commission has the burden to prove its allegations.

61. The Outline was furnished to Mayor Bennett on June 18,

2013, over 6 months ago. It contained in para. 2 eleven allegations as a basis for the position of the Commission

that he breached the Code of Conduct, including the two

additional allegations being the subject of the Motion.

62. The Outline sets out each allegation as a sub-heading which includes factual and detailed information regarding each alleged breach of the Code of Conduct.

63. Allegation 3 in para. 2 of the Outline is the first of the allegations requested to be added as contained in the Motion. It contains four paragraphs under the sub-heading.

64. Allegation 11 in para 2 of the Outline is the second of the allegations requested to be added as contained in the Motion. It contains numerous paragraphs and sub-headings in reference to different paragraphs of the Code of Conduct alleged to have been breached by Mayor Bennett.

65. Mr. Taylor has submitted that the Motion is in reality seeking to add thirteen additional allegations. He said, all of them raise Charter of Rights issues and need a full evidentiary record. He also said a prejudice is caused to Mayor Bennett due to the de facto suspension from his duties as a member of the Board, and as well the extension of the Hearing which will be caused by the thirteen additional allegations if the Motion is granted.

66. The fact is no evidence has yet been adduced as the

Hearing has not yet began to hear or receive it.

67. Mayor Bennett will be able to raise his Charter of Rights arguments in relation to the evidence as the Hearing progresses and in his submissions. So there is no prejudice yet caused to him.

68. Frankly, Mr. Taylor did not provide submissions of any actual prejudice to Mayor Bennett that would result from amending the Notice to include the two additional allegations.

69. With regard to his de facto suspension, that is contained in para. 14(1) of the Code of Conduct and applies to any member of a police services board in Ontario “whose conduct or performance is being investigated or inquired into by the Commission under section 25 of the Act or is the subject of a hearing before the Commission under that section”.

70. Para. 14(1) of the Code of Conduct applies to municipal and provincial appointees to police service boards. We fail to see why Mayor Bennett’s de facto suspension causes him a distinct prejudice different from the position of any other member of a police service board to whom the provision applies.

71. While it may have been preferable for the Commission to have brought the Motion earlier, the fact is it did not but nevertheless can bring it now during the Hearing but before any evidence about the allegations has been adduced.

72. The Motion, in our view, does not represent a joinder of thirteen new allegations not previously identified. There are only two specific allegations being sought to be added and they were contained in the Outline.

73. Therefore we would answer question (a) in para. 55 in the affirmative.

74. Should conditions be added, particularly in light of the Cross-Motion? Certainly an amended Notice of Hearing should be served and filed immediately.

75. During his submissions at the hearing of the Motion, Mr.

Taylor said he did not want an adjournment of the scheduled date for the Hearing on January 6, 2014. The first day of the Hearing was March 5, 2013. Mr. Taylor has, on the other hand in his Cross-Motion and submissions on it suggested an adjournment may be just and appropriate if the Panel grants the Motion.

76. Having had the particulars of both the allegations contained in the Notice of Hearing since early February 2012 and the particulars in the Outline which contain the additional allegations of the Motion since mid-June, 2013, the Panel does not feel that an adjournment is necessary or appropriate at this time. However, the Panel will order as part of its rulings that Mayor Bennett’s evidence will not have to start being presented before the February 3, 2014 hearing date.

Rulings

77. Our Rulings are as follows:

a) the Motion is granted;

b) the Commission shall serve and file an amended Notice of Hearing within two business days following the date of these Rulings;

c) the Respondent shall not be required to lead evidence at the Hearing before February 3, 2014; and

d) except as provided above, the Cross-Motion is dismissed.

DATED AT TORONTO, THIS 19th DAY OF DECEMBER, 2013

David C. Gavsie Zahra Dhanani

Associate Chair, OCPC Member