Izzett v. Toronto Police Service, 2014 CanLII 100639

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Izzett v. Toronto Police Service, 2014 ONCPC 6

MR. STEVEN IZZETT APPELLANT (RESPONDING PARTY)

and

TORONTO POLICE SERVICE RESPONDENT (MOVING PARTY)

RULING ON MOTION

Panel: David C. Gavsie, Associate Chair Jacqueline Castel, Member Jeffrey King, Member

Hearing Date: April 24, 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

Ms. Sharon Wilmot, Counsel for the Moving Party (Respondent), Toronto Police Service.

Mr. Steven Izzett, the Responding Party (Appellant), responding on his own behalf.

Introduction

1. The Moving Party (the “Moving Party” or “TPS” or the “Service”) is seeking an Order dismissing the Appeal of Mr. Izzett (the “Responding Party”, or the “Appellant” or former Staff Inspector Izzett) on the ground that the Ontario Civilian Police Commission (the “Commission”) is without jurisdiction since Mr. Izzett is no longer a member of a police service.

2. Mr. Izzett is opposing the Motion. He is asking the Commission to dismiss the Motion and to quash the decision on sentence or, in the alternative, to reinstate him so that he can appeal his conviction and penalty.

Decision

3. The Motion to dismiss the Appeal is granted for reasons which follow.

Background

4. The Appellant was found guilty of five counts of misconduct on March 1, 2013 before the Honourable Keith A. Hoilett (the “Hearing Officer”), following a hearing under Part V of the Police Services Act, R.S.O. 1990, C.P. 15, as amended (the “Act”).

5. Submissions on penalty were made on May 22 and 31, 2013. The Hearing Officer reserved his decision and the matter was scheduled to return on July 2, 2013 for final disposition on penalty.

6. On July 2, 2013, at the start of the proceeding and before the decision on penalty was delivered, the Appellant, through his counsel, requested an adjournment for medical reasons. The adjournment request was denied.

7. After the denial of the adjournment request and a recess, the Appellant attended the hearing and advised that he was resigning from the Service, effective immediately. The Appellant handed his superior, Superintendent Hugh Ferguson, who was present at the hearing, the required paperwork (TPS Form 771) to process his resignation. The TPS Form 771 was dated July 1, 2013 and was signed by the Appellant. On the form, there is a box entitled “Effective Date of Separation (The day following the last date of employment or death)”. The handwritten date in that box is “2013.07.02”. After handing the form to his superior, the Appellant left the Hearing room.

8. After the Appellant left, the Hearing Officer invited submissions from counsel on whether he had jurisdiction to deliver his decision on penalty in light of the resignation. After considering these submissions, the Hearing Officer determined that he had jurisdiction until 11:59 p.m. on July 2, 2013, based on the wording of subsection 90(1) of the Act, and proceeded to deliver orally his decision on penalty. The Appellant was ordered dismissed within seven days unless he resigned before that time.

9. The Hearing Officer also provided a written decision on penalty, with an issue date of July 2, 2013. The written decision on penalty was served on the Appellant on July 4, 2013.

10. On July 4, 2013, Mr. Izzett wrote to TPS Chief William Blair (“Chief Blair”) requesting that his resignation be withdrawn. The following day, Marianne Wright, Lead Counsel for the Toronto Police Service, responded in writing to Mr. Izzett, advising that in accordance with the Uniform Senior Officer’s Collective Agreement, his request to withdraw his resignation was denied.

Moving Party’s Submissions

11. Ms. Wilmot submitted that the Commission is a creature of statute and derives its powers from the Act. The powers of the Commission are defined by statute. The Commission can only make a decision or rule if authorized to do so, and cannot imply or expand its jurisdiction beyond that which is set out in the statute. She relied on ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] SCJ No. 4 at para 2, Cole v. Ray and Ontario Provincial Police, (December 4, 2006, OCCPS) (unreported, aff’d Div. Crt., Nov. 14, 2008), and Mitchell and Ontario Provincial Police, (December 12, 2012, OCPC).

12. She argued that the Commission’s jurisdiction to hear appeals under Part V of the Act is limited by subsections 87(1) and 90(1) of the Act. These sections make clear that a former police officer has no jurisdiction to appeal a decision, made after a hearing under subsection 76(9). Once a police officer resigns, the Commission no longer has jurisdiction to hear the appeal.

13. Ms. Wilmot submitted, further, that the Commission has recognized in cases, such as Holder and Ontario Provincial Police (2002), 3 OPR 1576 (OCCPS) and Cole v. Ray and Ontario Provincial Police, supra, that the Act does not give it the power to exercise disciplinary or appellate authority over former members of police services.

14. She submitted that there is no question that Mr. Izzett is no longer a member of a police force and that he made a conscious decision to resign. As such, the Commission is without jurisdiction to continue with the disciplinary appeal.

15. Ms. Wilmot also submitted that it is not necessary to address the arguments pertaining to the specific timing of his resignation and whether the Hearing Officer had jurisdiction to issue a decision on penalty. She argued that these issues are irrelevant and cloud the real issue before this Panel. She emphasized that the relevant fact, for the purpose of this Motion, is that Mr. Izzett’s resignation was and is effective, and he is no longer a police officer. As a result, the Commission has no jurisdiction to hear his appeal.

16. Referencing Mr. Izzett’s factum, Ms. Wilmot argued that Regina Police Association v. Regina Police Commissioners 2000 SCC 14, [2000] 1 S.C.R. 360 stands for the proposition that the Saskatchewan legislature intended for the Police Commission, established by the Saskatchewan Police Act, 1990, to decide matters of police discipline and dismissal and that the arbitrator, appointed under a collective agreement, had no such jurisdiction. She argued that the case does not mean that a police Commission can imply or infer jurisdiction over someone who is no longer a police officer when the statute is very clear that jurisdiction is lost once a police officer resigns.

17. Ms. Wilmot submitted that there have been numerous cases since Regina Police Association v. Regina Police Commissioners, supra, in which the Commission has found that it lacks jurisdiction where the appellant is no longer a member of a police service: see – Mitchell and Ontario Provincial Police, (December 12, 2012, OCPC), Holder and Ontario Provincial Police, supra, and Cole and Sergeant Alarie and Ontario Provincial Police, (December 4, 2006, OCCPS).

18. Accordingly, Ms. Wilmot asked the Commission to dismiss the appeal.

Responding Party’s Submissions

19. Mr. Izzett submitted that the Commission has stated in some cases, such as Mitchell and Ontario Provincial Police, supra, that it is a creature of statute and cannot imply or expand its jurisdiction. However, he emphasized that there have been other cases such as Mulligan and the Ontario Provincial Police, (March 28, 2014, OCPC) and Richardson and Ontario Provincial Police (May 23, 2012, OCPC), where the Commission has recognized that it can determine its own jurisdiction if the issue is disciplinary and Part V of the Act has not been followed.

20. He urged the Panel to rely on Regina Police Association v. Regina Police Commissioners, supra, to find jurisdiction to hear his appeal.

21. Mr. Izzett argued that the facts of his case are similar to the Regina Police Association case. The Regina Police Association case involved a police officer who opted to resign to avoid a disciplinary hearing and then attempted, without success, to withdraw his resignation. He grieved, and the arbitrator held that he had no jurisdiction. The Supreme Court of Canada ultimately found that although the arbitrator lacked jurisdiction, the Saskatchewan Police Commission could liberally interpret its enabling legislation to assert jurisdiction, at paragraph 36:

Upon examining ss. 60, 61, 66 and 69 of the Police Act, it is clear that the legislature intended that hearing officers and, if necessary, the Commission, would hear all appeals arising from the dismissal of members of the police force. In my view, the fact that a member may not be subject to an order for dismissal is not sufficient to deprive the Commission of this jurisdiction.

In addition, the fact that the Chief of Police may not have followed the procedural requirement that he provide written reasons for his decision is not sufficient to deprive the Commission of jurisdiction. The essential character of the dispute remained a disciplinary one, even if the Chief of Police did not follow the specific scheme in imposing punishment.

22. He submitted that the Saskatchewan Police Act has a provision which only allows a member of a police service, defined as the Chief of Police or an officer, to appeal. However, the Supreme Court of Canada did not find that the wording of the Saskatchewan statute precluded the Saskatchewan Police Commission from hearing an appeal of a former police officer who resigned.

23. Mr. Izzett argued that in the present case, Part V of the Act was not followed when the Hearing Officer issued a decision on penalty after Mr. Izzett announced that his resignation was effective immediately. He emphasized that he resigned with the expectation that the disciplinary process would come to an immediate end.

24. Mr. Izzett also submitted that the Hearing Officer, in delivering his decision on penalty, adopted the prosecution’s argument that he had jurisdiction until 11:59 p.m. on July 2, 2013 because of the words “after the date of resignation” in subsection 90(1) of the Act.

25. He argued that it is illogical to interpret the words “after the date of resignation” to mean the next day. Relying on the cases of Rizzo & Rizzo Shoes Ltd. (Re), (SCC) [1998] 1 S.C.R. 27 and Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2014 ONCA 89, he submitted that where the plain language interpretation of legislation defeats the purpose of the statute, a plausible contextual reading should replace it. He quoted from the latter case at para 34 as follows:

The purpose or object of a statute or specific provision within the statute is part of the context that must be taken into account when interpreting that statutory provision. One assumes that the legislature did not intend to enact a provision in a statute that is inconsistent with the purpose of the statute. If the plain meaning of a statutory provision would defeat the purpose of the legislation or produce a capricious or arbitrary result, and there is a plausible contextual reading of the statute that is not inconsistent with its purpose, the plain meaning will be rejected in favour of that plausible reading.

26. Mr. Izzett submitted that the Commission has consistently stated that there is no provision in the Act for a former police officer to be subject to the provisions of Part V, and relied on the case of Mitchell and Ontario Provincial Police, supra, in support of this argument. Therefore, Mr. Izzett argued, the plain language interpretation of “after the date of resignation” defeats the purpose of the legislation (i.e., that only police officers be subject to Part V of the Act) and should be rejected.

27. Mr. Izzett also argued that dismissal is the most stringent penalty under the Act and it makes no sense that the legislative intent was to hold over a resignation until the end of the day, to maintain jurisdiction in a matter that has already resulted in the equivalent of the most stringent penalty.

28. He argued, further, that continuing with the sentence after he resigned was contrary to subsection 90(1) of the Act. The Hearing Officer lost jurisdiction as soon as Mr. Izzett announced his resignation was effective immediately.

29. In addition, Mr. Izzett stated that the final decision in the case was the written decision, and this was not rendered until after his resignation. For this submission, he relies on the case of Orr and York Regional Police (June 29, 2001, OCCPS) in which the Commission held, for the purpose of the 30 day time limit for filing a Notice of Appeal, that the “final decision is not rendered until after the sentence has been imposed and the written decision(s) regarding the finding of guilt and sentence has been served on the police officer.”

30. He submitted that Holder and Ontario Provincial Police, supra, which Ms. Wilmot relied on to support her argument that the Commission lacks jurisdiction, is distinguishable because Sergeant Holder did not file his Notice of Appeal within 30 day limitation period. Mr. Izzett stated that he filed his Notice of Appeal within the 30 day limitation period.

Reply Submissions

31. Ms. Wilmot submitted that the Commission has no authority to reinstate someone who has resigned voluntarily.

32. Ms. Wilmot argued that should the Commission determine that it has jurisdiction, any arguments pertaining to the merits of the appeal should be considered at the appeal, and not as part of this Motion. She emphasized that she has restricted her submissions to the narrow subject area of her Motion on jurisdiction. She urged that it would not be appropriate to quash the decision on sentence before the Service has had an opportunity to make submissions.

Reasons

33. The Commission was established by, and its jurisdiction is found, in the Act.

34. The Commission’s jurisdiction to hear appeals under Part V of the Act is set out in subsection 87(1) of the Act.

35. Subsection 87(1) allows a police officer to appeal a decision made after a hearing held under subsection 76(9) to the Commission. “Police officer” is defined under section 2 of the Act:

“police officer” means a chief of police or any other police officer, but does not include a special constable, a First Nations Constable, a municipal law enforcement officer or an auxiliary member of a police force;

36. Subsection 90(1) further clarifies that once a police officer resigns, the reach of the disciplinary process ends:

90(1) If at any time after a complaint about the conduct of a police officer is made under this Part and before the complaint is finally disposed of the police officer resigns no further action shall be taken under this Part in respect of the complaint after the date of resignation.

37. The Act does not give the Commission disciplinary or appellate authority over former members of police services.

38. It is not disputed that Mr. Izzett is no longer a member of a police service, notwithstanding the disagreement over whether his resignation took effect immediately (i.e., when he announced his resignation at the sentencing hearing on July 2, 2013), or, at 11:59 p.m. on July 2, 2013.

39. Mr. Izzett is urging the Panel to adopt the approach enunciated in Regina Police Association v. Regina Police Commissioners, supra, and find it has jurisdiction to hear this appeal based on a liberal interpretation of the Act, and on the Hearing Officer’s alleged failure to comply with Part V of the Act. Specifically, Mr. Izzett argued that the Hearing Officer did not follow Part V when he delivered his decision on sentence after Mr. Izzett had announced that his resignation was effective immediately. He pointed to cases such as Richardson and Ontario Provincial Police, supra, and Mulligan and the Ontario Provincial Police, supra, where the Commission has followed Regina Police Association v. Regina Police Commissioners, supra.

40. In Regina Police Association v. Regina Police Commissioners, supra, the Supreme Court of Canada determined that an arbitrator did not have jurisdiction over a policing matter which was disciplinary in nature. The Supreme Court of Canada also held that the Saskatchewan Police Commission, which has the jurisdiction to hear police disciplinary matters, could find that the informal resolution of a disciplinary matter which culminated in Sgt. Shotten’s resignation, to be constructive dismissal. The fact that the legislation did not contemplate this type of disciplinary action (i.e., informal/constructive dismissal) did not negate the Saskatchewan Police Commission’s jurisdiction over disciplinary matters.

41. Commission decisions which relied on Regina Police Association v. Regina Police Commissioners, supra, involved informal discipline such as a transfer and a demotion. In Richardson, supra, the OPP informed the appellant that it would be taking steps to recoup 34 days pay, for days on which it could not account for the appellant’s whereabouts, and subsequently transferred him to permanent detachment uniform duties. In Mulligan, supra, there was likewise no formal discipline, but the appellant was stood down indefinitely from flying duties as a result of inappropriate and insubordinate conduct towards his supervisor. Further, in the Richardson and Mulligan cases, supra, the appellants were still police officers employed by their respective police services.

42. The facts of Mr. Izzett’s case are distinguishable from the above three cases. Unlike those cases, Mr. Izzett’s case did not involve informal discipline, such as a transfer or demotion, in lieu of or in addition to formal discipline. Mr. Izzett was charged with misconduct under the Act, a hearing was held, and the Hearing Officer found him to be guilty of five counts of misconduct. Mr. Izzett resigned on the day in which the Hearing Officer was scheduled to deliver his decision on penalty, announcing his resignation just prior to the decision on penalty being read. His resignation was not coerced and did not form part of any informal agreement with his superiors that could somehow be characterized as a constructive dismissal or informal discipline.

43. The Hearing Officer did not fail to comply with Part V of the Act when he delivered his decision on penalty on July 2, 2013, following Mr. Izzett’s announcement that he was resigning effective immediately. Subsection 90(1) of the Act provides that if a police officer resigns no further action shall be taken in respect of a complaint against him under Part V “after the date of resignation”. Given the words “after the date of resignation” in subsection 90(1), the Hearing Officer still had jurisdiction to deliver his oral decision on penalty until any time up to 11:59 p.m. on July 2, 2013.

44. Mr. Izzett handed his signed and dated TPS Form 771 to his supervisor inside the hearing room before the Hearing Officer read his penalty decision. The TPS Form 771 which was entitled “Termination/Retirement”, was signed by Mr. Izzett and dated “2013.07.01”. The box on the form headed “Effective Date of Separation” also contains the printed words: “(The day following the last date of employment or death)”. Hand-written in the box is the date: “2013.07.02”.

45. By letter dated July 4, 2013, Mr. Izzett wrote to Chief Blair stating in the 4th paragraph of his letter:

It would appear that you did not accept my resignation and are relying on the Decision on Penalty as released by the Hearing Officer. If I am mistaken and you did in fact accept my resignation on July 2, 2013, at 11:35 a.m. then I am hereby withdrawing my resignation pursuant to Mr. Gover’s submission to Mr. Hoilett that I had 48 hours to withdraw same.

(emphasis added)

46. By letter dated July 5, 2013 sent to Mr. Izzett, Marianne Wright, Lead Counsel, Legal Services of the Service stated:

We are in receipt of your letter dated July 4, 2013, requesting to withdraw your resignation.

As you are no doubt aware, there is a provision of the Uniform Senior Officer’s Collective Agreement, which addresses your request. It reads as follows:

“A member, within 48 hours (excluding Saturday or Sunday) of submitting a written resignation, may request the Chief of Police, either directly or through the Organization, to withdraw said resignation. The Chief of Police after investigation will determine the matter.”

In accordance with the above, an investigation was conducted and the Chief has determined the matter. Your request has been denied.

47. The decision on penalty, which ordered Mr. Izzett to be dismissed from the TPS if he did not resign within 7 days, became moot since Mr. Izzett had already resigned, and the Chief did not approve his request to rescind his resignation. Likewise, the issue of Mr. Izzett receiving the written decision on July 4, 2013, is also moot. The July 4, 2013, date would have been the first date of the 30 day limitation period for filing a Notice of Appeal, but Mr. Izzett could not appeal the decision, given his resignation which the Chief refused to rescind.

48. We do not accept Mr. Izzett’s argument that this plain language reading of the words “after the date of resignation” in subsection 90(1) should be disregarded because it purportedly defeats the purpose of the legislation, namely that a former police officer should not be subject to the provisions of Part V. Mr. Izzett cannot have it both ways. He would like us to accept that a former police officer is not subject to Part V of the Act for the purpose of interpreting “after the date of resignation”, but he wants us to imply or infer jurisdiction over him, a former police officer, for the purpose of his appeal.

49. The Commission has no jurisdiction under the Act over a former police officer. As such, we find that the Commission is without jurisdiction to hear Mr. Izzett’s appeal.

50. The Motion to dismiss the Appeal is granted for the above reasons.

DATED AT TORONTO, THIS 29TH DAY OF MAY 2014

David C. Gavsie Associate Chair, OCPC

Jacqueline Castel Member, OCPC

Jeffrey King Member, OCPC