Sergeant Gary Lavoie v. Greater Sudbury Police Service, 2014 CanLII 100633

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Lavoie v. Greater Sudbury Police Service, 2014 ONCPC 10

SERGEANT GARY LAVOIE APPELLANT (MOVING PARTY)

and

GREATER SUDBURY POLICE SERVICE RESPONDENT (RESPONDING PARTY)

RULING ON MOTION

Panel: David Gavsie, Associate Chair; Zahra Dhanani, Member; Jeffrey King, Member

Hearing: In writing

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

Sergeant Gary Lavoie, representing himself as the Moving Party

David Migicovsky, Counsel for the Responding Party, Greater Sudbury Police Service

Introduction

1Sergeant Gary Lavoie (“Sgt. Lavoie”), a member of the Greater Sudbury Police Service (the “Service”) brings a motion (the “Motion”) to obtain an adjournment of the hearing of his appeal scheduled for August 26 and 27, 2014 (the “First Appeal”), from decisions of Inspector Dan Markiewich (the “First Hearing Officer”) dated:

a) July 12, 2013, finding Sgt. Lavoie guilty of 36 counts of misconduct; and

b) November 7, 2013, imposing a penalty of immediate dismissal.

2In the First Appeal, factums have been submitted by both Parties. The dates for the First Appeal hearing were set on April 7, 2014, over four months ago. The process to set these dates was extensive including a motion resulting from Sgt. Lavoie’s lengthy factum submission.

3Sgt. Lavoie is seeking joinder of the First Appeal with his appeal recently filed with the Commission (the “Second Appeal”) from decisions of Deputy Chief (retired)Terrence Kelly dated July 15, 2014, that:

a) find Sgt. Lavoie guilty of two additional counts of misconduct; and

b) impose a penalty of immediate dismissal.

4Sgt. Lavoie is requesting that the adjournment last until a decision is rendered in connection with a further Notice of Hearing dated September 27, 2012, the hearing for which has occurred before Deputy Chief (retired) Terrence Kelly. No decision on this matter has been issued yet. The subject of that hearing was a further charge of misconduct. Sgt. Lavoie indicates he may wish to appeal this decision when rendered (the “Third Possible Appeal).

Decision

5The Panel:

a) dismisses the Motion; and

b) orders that the First Appeal proceed on August 26 and 27, 2014.

Reasons

6The reasons for the Ruling on the Motion are not lengthy or elaborate given the imminent First Appeal hearing dates. We find a lengthy decision is not necessary because the answer to this question is settled in law and practice.

7The Commission Rules of Practice provide clear guidance when joining appeals. Rule 18.3 states:

Where the combining of proceedings or the hearing of proceedings together unduly complicates or delays the proceedings or causes prejudice to a party, the Commission may order that the proceedings or the hearing be continued separately.

Ontario Civilian Police Commission, Rules of Practice, revised 2010 (“Rules of Practice”)

8Section 9.1(1) of the Statutory Powers Procedure Act provides when and how a tribunal may combine proceedings before it:

Proceedings involving similar questions

9.1(1) If two or more proceedings before a tribunal involve the same or similar questions of fact, law or policy, the tribunal may,

a) combine the proceedings or any part of them, with the consent of the parties

b) hear the proceedings at the same time, with the consent of the parties;

c) hear the proceedings one immediately after the other; or

d) stay one or more of the proceedings until after the determination of another one of them.

9The Service does not consent to the Motion. In fact, they are in opposition to it. Case law provides that generally when proceedings are joined they have to be joined on the consent of both parties. See: Law Society of Upper Canada v. Meera Bharadwaj, 2007 ONLSHP 61, 2007 ONLSHP 0061, see also, Ahmed v. Certas Direct Insurance Co., 2006 CarswellOnt 1799 (FSCO).

10Counsel for the Service submits that the First Appeal and the Second Appeal involve unrelated issues, are highly complex, involve different issues of law and that joining the two matters would unduly prolong this matter.

11The Service argues that to wait for full documentation to be filed and served on the Second Appeal and the Third Possible Appeal would prolong the holding of a hearing on events which occurred several years ago.

12We find that Sgt. Lavoie has not demonstrated in his materials on the Motion that proceeding with the First Appeal as scheduled would result in a denial of procedural fairness. He also has not proved that granting the adjournment could derogate from the need by the Commission to assist with the resolution of disputes expeditiously and without further delay.

13Typically, an adjournment is granted where a party has received short notice or late disclosure of the case to be met. Neither has occurred with respect to the First Appeal. Also, cases are joined when there are two appeals arising out of the same law, facts, or policy. (See s. 18.1 of the Rules of Practice). That is not the case here. There were three separate hearings before separate Hearing Officers resulting in two separate decisions and a third to come.

14Sgt. Lavoie is a self-represented Appellant and the first appeal is complex, lengthy, and complicated in and of itself. We find that to join this with the Second Appeal and Third Possible Appeal would not lend to the effective, efficient, and fair proceeding of this hearing. We find that joining the three appeals would unduly complicate and delay the process.

15Again, the process to arrive at dates that were acceptable to all parties was a challenge and began in November, 2013. Sgt. Lavoie has had over four months to put forward his case on this appeal. That is more than ample time to prepare to be heard. This matter has been ongoing since September 7, 2011, the date on which Sgt. Lavoie’s suspension began.

16Sgt. Lavoie argued that his appeals should be joined as the appeals were in the recent case before the Commission, Clough and Peel Regional Police, OCPC (May 22, 2014).

17We find that this case is distinguishable from Clough, supra. In Clough, supra, the matter was able to be joined quite efficiently and without prejudice to either party. Furthermore, Const. Clough was represented by counsel, who was able to effectively deal with the complexity of the case. In the case before us, we find that joining all the appeals would only further complicate matters including: the submission of a new factum addressing the issues on three appeals, increased hearing days and further delay to this matter.

18The First Appeal alone is dense with over 36 charges to address. It is fraught with contested facts and issues. This appeal would be a challenge for an experienced and well-trained lawyer, let alone a self-represented Appellant. Therefore, we find that it would be contrary to the requirements of fairness to join the First Appeal with any other matter.

19We further find that it is in the public interest that the hearing on the First Appeal proceed as scheduled. Sgt. Lavoie has been suspended since September 2011 all the while receiving full salary while these proceedings continue. There have been innumerable delays to the hearing of the matters regarding Sgt. Lavoie and we are not at all persuaded that any more delays are required or warranted.

20Finally, we find that because we have not allowed the adjournment, a conditional cross-motion submitted by the Service becomes moot, and therefore we shall not address it.

21Therefore the Panel:

a. dismisses the Motion; and

b. orders that the First Appeal hearing proceed on August 26 and 27, 2014.