ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED
BETWEEN:
CONSTABLE JEREMY BORDA APPELLANT (AND RESPONDING PARTY ON THE MOTION)
-and-
WATERLOO REGIONAL POLICE SERVICE RESPONDENT (AND MOVING PARTY ON THE MOTION)
RULING ON MOTION
Panel: David C. Gavsie, Associate Chair Georges Bedard, Member
Hearing Date: October 10, 2014
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:
Lynda Bordeleau and Gary Melanson for the Waterloo Regional Police Service, Respondent and the Moving Party on the Motion.
No one for Const. Jeremy Borda, Appellant and the Responding Party on the Motion.
INTRODUCTION
The Waterloo Regional Police Service (the “Service”) has brought a motion (the “Motion”) requesting the Ontario Civilian Police Commission (the “Commission”) to issue an order dismissing the appeal of Const. Jeremy Borda (“Const. Borda”) for failure to file a notice of appeal within 30 days as required by s. 87 (1) of the Police Services Act, R.S.P. 1990, c. P.15, as amended (the “Act”).
The date and time for the hearing of the Motion was set for October 10, 2014, at 10:00 a.m. The hearing did commence as scheduled. It was noted by the Panel that Const. Borda was not present nor was anyone present representing him. The Panel produced two exhibits:
a) a timeline of communication on this appeal showing communications between the Commission, the parties and/or their representatives. Nothing has been received from Const. Borda in response to the Commission’s numerous requests (Ex. 1); and
b) five letters, the original or a copy of which was sent to Const. Borda, none of which was answered (Ex. 2). In two of the Commission’s letters, it was stated that in the absence of a response, the hearing would proceed in his absence.
Counsel for the Service tabled as an exhibit an affidavit of Det. Sgt. David MacMillan of the Service (Ex. 3), indicating he spoke to and then met with Const. Borda. At their meeting on October 8, 2014, they talked about the hearing of the Motion scheduled for October 10, so Const. Borda was well aware of it. Const. Borda signed a copy of the June 13, 2014 letter from the Commission containing the hearing date, time, and location. The Signed copy was attached to Ex. 3 as Exhibit “F”.
The Panel adjourned the hearing to wait for Const. Borda. At 10:20 a.m., he had not appeared. The Panel then started the hearing.
DECISION
- As stated by the Panel at the hearing on October 10, 2014, the Motion is granted, the appeal by Const. Borda is dismissed, and written reasons will follow. (These are the written reasons.)
BACKGROUND
In a penalty decision (the “Decision”) by Supt. Paul Pedersen of York Regional Police Service (the “Hearing Officer”) dated December 9, 2013, Const. Borda was dismissed from the Service unless he resigned in seven days.
Const. Borda was provided with a written copy of the Decision on December 9, 2014.
A notice of appeal appealing the Decision was filed by facsimile with the Commission on January 8, 2013 at 4:28 p.m.
The Service brought its Motion dated February 6, 2014.
REASONS
S. 87 (1) of the Act provides that a police officer wishing to appeal a decision of a hearing officer must serve a written notice of appeal on the Commission within 30 days of receiving notice of decision.
Where the notice of appeal is served by fax, s. 96 (2)(2.) provides the notice is deemed to be received on the day after it is sent.
The faxed notice of appeal regarding Const. Borda’s appeal from the Decision was deemed to have been received by the Commission on January 9, 2014 which is beyond the 30 days for filing same – s.87(1) of the Act.
The Commission has held that it has no ability to extend delays or to waive or amend time periods set out in the Act: see Sipor and Schertzer, and Boothby (November 29, 1999, OCCPS), Orr and York Regional Police Service (June 29, 2001, OCCPS) and Johnson and the City of Kawartha Lakes Police Service (July 4, 2012, OCPC).
Accordingly, the Motion is granted, and the appeal by Const. Borda is dismissed.
DATED AT TORONTO, THIS 17TH DAY OF OCTOBER, 2014
David C. Gavsie Associate Chair, OCPC
Georges Bedard Member, OCPC