Timms-Fryer and Amherstburg Police Service and Challans, 2015 ONCPC 17

Introduction

1. The Amherstburg Police Service (the “Service” or the “APS”) is seeking an order that it be permitted to file three affidavits which respond to the breaches of natural justice and procedural fairness that the Appellant alleges took place in the context of a disciplinary proceedings against Constable Andrew Challans. The affiants are the Hearing Officer, Deputy Chief Terence Kelly (Ret.), the Chief of the APS, Timothy Berthiaume, and David G. Cowling, the prosecutor at the disciplinary hearing.

2. Constable Andrew Challans (“Const. Challans”) agrees with the position of the Service on this motion.

3. Mr. Justin Brodie Timms-Fryer (“Mr. Timms-Fryer”, the “public complainant” or the “Appellant”) and the Independent Police Review Director (the “Director”) oppose the motion on the grounds that the test for admitting affidavit evidence on appeal is not satisfied, certain contents of the affidavits are inadmissible, and the issue of admitting such evidence is moot.

4. The Appellant is also seeking costs because the Service has attempted to introduce evidence from individuals who have a vested interest in the outcome of the Appeal, the subject of the motion is moot, and the Service failed to bring its motion in a timely way thereby delaying the proceedings.

Background

5. On May 14, 2015 the Appellant filed a motion to admit the Appellant’s affidavit which related to the portions of his appeal which allege prosecutorial incompetence and breaches of natural justice and procedural fairness occurred during the hearing before Deputy Chief (ret.) Kelly (the “Hearing Officer”). The Service took no position on the motion, and the Director and Const. Challans opposed it.

6. On June 9, 2015, the Commission dismissed the Appellant’s motion and found that the alleged breaches of natural justice and procedural fairness could be ascertained from a review of the record.

Decision

7. The present motion is dismissed for the following reasons.

Reasons

8. Section 89(5) of the Police Services Act gives the Commission broad power to admit new or additional evidence “as it considers just”. As stated in our June 15, 2015 decision, Re Keeprite Workers’ Independent Union et al. and Keeprite Products, supra, is the leading case on the admissibility on appeal of affidavit evidence relating to the admissibility of evidence relating to alleged breaches of natural justice Accordingly, the Keeprite principles are useful to inform the Commissions’ decision in this case. Applying those principles in this case, we would decline to admit the affidavits tendered by the Service.

9. The Ontario Court of Appeal stated in Keeprite Workers’ Independent Union et al. and Keeprite Products, supra, that affidavit evidence to supplement the record in respect of evidence relating to an alleged breach of natural justice should only be admitted in “rare” and “very exceptional” circumstances. Specifically, affidavit evidence can be admitted to show a complete absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by a mere reference to the record.

10. Given our finding, in our decision of June 15, 2015, that the breaches of natural justice and procedural fairness alleged by the Appellant could be determined by reference to the record, it follows that the Service’s response to these alleged breaches can also be argued with reference to the record.

11. We agree with the Appellant and the Director that it would be unnecessary, unfair and inconsistent with our ruling of June 15, 2015 to allow the Service to introduce affidavit evidence to respond to the allegations of breaches of natural justice and procedural fairness, when we have decided that the Appellant is limited to arguing the appeal on the basis of the record.

12. We also agree with the Appellant that the Hearing Officer’s affidavit is not admissible based on the principle set out in Stemijon Investments Ltd. v. Canada, 2011 FCA 299, 2011FCA 299 at para 41:

“...[the adjudicator] ha[d] no right, especially after a judicial review challenging his decision had been brought, to file an affidavit that supplements the bases for decision set out in the decision letter. His affidavit smacks of an after-the fact attempt to bootstrap his decision, something that is not permitted: United Brotherhood of Carpenters and Joiners of America v. Bransen Construction Ltd., 2002 NBCA 27at para