Constable Dawn Wilson v. Toronto Police Service, 2015 ONCPC 7

Ontario Civilian Police Commission

Date: 2015-02-23

File: 2015 ONCPC 07

Case Name: Wilson and Toronto Police Service

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

BETWEEN:

Constable Dawn Wilson APPELLANT (Moving Party)

-and-

Toronto Police Service RESPONDENT (Responding Party)

RULING ON MOTION

Panel: Roy Conacher, Q.C., Vice-Chair Stephen Jovanovic, Member

Hearing Date: January 21, 2015

Hearing Location: Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, ON M7A 2T3

Appearances Joanne E. Mulcahy, Counsel for the Appellant Michael Martosh, Counsel for the Respondent Lynette D’Souza, Counsel for the Independent Police Review Director

Introduction

1Constable Dawn Wilson (the "Appellant"), a police officer with the Toronto Police Service (the "Service" or the "TPS") was found guilty of unlawful or unnecessary exercise of authority in that the use of force she levelled against a civilian was unnecessary, contrary to s. 2(1)(g)(ii) of the Code of Conduct (the "Code") set out in what is now Ontario Regulation 268/10, as amended, and therefore contrary to s. 80(1) of the Police Services Act, R.S.O. 1990, c.P.15, as amended (the "Act").

2The hearing of two charges against the Appellant, one of which was dismissed, took place before Superintendent Robin D. McElary-Downer (the "Hearing Officer") over five days in April and May, 2013 with the decision as to findings released on June 7, 2013. The decision on penalty was released, after further submissions were made, on September 23, 2013. The Hearing Officer imposed a penalty of the forfeiture of five days.

3The Appellant's Notice of Appeal set out 40 specific Grounds of Appeal with respect to the finding of misconduct and 9 specific Grounds of Appeal with respect to the imposition of the penalty.

Preliminary Motion

4On January 21, 2015, the Panel heard a motion (the "Motion") brought by the Appellant seeking permission to deliver a Factum in excess of 30 pages and to allow either one day for oral argument if the Motion is granted, or if not granted, then up to 3 days for oral argument.

Ruling

5For the reasons that follow, we order that:

1. The Appellant shall deliver a Factum no longer than 50 pages by Tuesday, March 31, 2015;
2. The TPS and the Independent Police Review Director ("IPRD") shall deliver their Factums by Thursday, April 30, 2015;
3. The hearing of the Appeal will be scheduled for one day with the Appellant to have up to 3 hours for her oral argument and the TPS and the IPRD each to have up to 2 hours for their oral argument. The Appellant should then have up to ¾ of an hour for reply argument.

Background

6The Hearing Officer heard the evidence of 11 witnesses on the allegations of misconduct and 6 witnesses during the penalty phase of the Hearing. There were a total of 80 numbered exhibits, although that number doubled taking into account the exhibits within the exhibits. The transcript of the Hearing totalled 904 pages.

7The Appellant initially delivered two Factums for the Appeal, one dealing with the finding of misconduct and the other dealing with the imposition of the penalty. The combined Factums were approximately 134 pages.

Submissions

8In her letter to the Commission dated November 7, 2014, counsel for the Appellant set out 26 reasons why she should be allowed to deliver the desired Factum. In that letter and in her oral submissions before us, counsel for the Appellant summarized the facts peculiar to this Appeal, the arguments that she intended to make on the Appeal, and arguments that would apply to most Appeals, e.g. the seriousness of a finding of misconduct on the career of a police officer.

9The Appellant submitted that the Commission's Rules of Practice contain no provisions dealing with the length of a party's Factum, nor does the Act. She submitted that the Commission's Practice Direction should not have the same force or effect as a rule or a statute and that the Practice Direction should not be a barrier to her opportunity to present an effective Appeal, especially considering that she no longer has a further Appeal to Divisional Court.

10The Appellant further submitted that there was no prejudice to the parties if she were allowed to exceed the 30 page limit and in fact that it would be in the best interests of all parties if she were allowed to do so, so they and the Panel would fully know the scope of the Appeal. She submitted that a broad standard of review, as provided for by the Act, should not be "fettered" in this Appeal, especially given the institutional bias which she says exists, where the TPS, or any other Service, is allowed to select the Hearing Officer.

11The IPRD took no position on the length of the Appellant's Factum, while the TPS maintained that the Commission should adhere to the Practice Direction, given the level of complexity in this Appeal.

Reasons

12The Commission's Practice Direction, governing the length of a party's Factum, has been in place since 2009. As far as we are aware, there are no decisions that have dealt with a party's request to deliver a Factum that does not comply with the Practice Direction. Similar practice directions exist in the Court of Appeal and the Divisional Court. A Factum is meant to be a "concise" statement of the facts, the issues and the law relevant to an Appeal.

13Our role on an Appeal is not to conduct a rehearing or second-guess the decision of a Hearing Officer, but to review the decision to determine whether the conclusions reached are reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence and are articulated in a transparent, logical and intelligible manner: Precious and Hamilton Police (2002) 3 O.P.R. 1561 (OCCPS).

14We see no reason to treat the Commission's Practice Direction as being of any less importance than its rules: Section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 provides that "A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes." The Practice Direction simply states: "The factum should be concise and focused on the issues to be argued. No factum may exceed 30 pages in length without advance permission from the Commission."

15The New Brunswick Court of Appeal in Saint John (City) v. Saint John Fire Fighters' Assn., 2010 CanLII 39428 (NB CA), [2010] N.B.J. No. 241, considered the factors to be applied in the exercise of its discretion to allow an increase in the length of a party's Factum. These seven factors were as follows:

1. while the broad wording of the Rule permits flexibility in its application, the judicial discretion it confers stands to be exercised on a rational basis:
2. conciseness is not merely a pious wish: it is mandated by Rule 62.14(2);
3. a relieving order is seldom justified because, in most instances, the Appellant should be able to make the case for reversal within 35 pages;
4. as a general rule, a relieving order will only issue in those cases where, due to special circumstances, including the exceptional complexity of the issues raised, judicial insistence upon compliance with the 35 page maximum would be unreasonable;
5. reasonableness is assessed by taking into account the best interests of the parties and the panel tasked with determining the appeal;
6. while the moving party bears the burden of establishing the requisite special circumstances, counsel's considered opinion regarding the need for derogation will weigh heavily in the balance; and
7. as a matter of good practice, a draft of the proposed submission should form part of the record on motion in all but the most exceptional cases. Indeed, without that document, it is difficult, if not impossible, to imagine how a rational determination of entitlement could be made.

16In our view, none of the individual factors should be given any greater weight than any other, but should be considered cumulatively in deciding whether to exercise our discretion with respect to the length of the Appellant's Factum.

17Having reviewed the Appellant's draft Factum and considered her submissions, we cannot conclude that there is an exceptional complexity of issues raised. The issues are of obvious importance to the Appellant and the TPS, but there are few Appeals heard by the Commission that are not of equal, if not greater (in the case of a termination), importance. However, there must be some degree of proportionality between the issues raised in an appeal and the oral and written arguments presented. The Appellant's draft factum is neither concise nor focused, in our respectful view.

18We accept that the statement in factor (5) above that counsel's opinion regarding the need for derogation will weigh heavily in the balance, is important. However, we are not satisfied that this matter, heard over six days, raises such factual or legal issues that require a Factum more than four times as long as provided for in the Practice Direction. However, taking into account counsel's opinion and submissions, we are prepared to grant her some leeway and allow her to deliver a Factum not exceeding 50 pages in length.

19The final issue to be dealt with on this motion is the amount of time to be allowed for oral submissions. We find that the Appellant's argument that she should have up to three days for oral argument if she is not allowed to deliver a 134 page Factum to be somewhat disingenuous. This is an Appeal from a six day Hearing. It should take much less than half that time to present oral argument regardless of length of her Factum.

Order

20The Panel therefore orders the following:

1. The Appellant shall deliver a Factum no longer than 50 pages by Tuesday, March 31, 2015;
2. The TPS and the Independent Police Review Director ("IPRD") shall each deliver their Factum by Thursday, April 30, 2015;
3. The hearing of the Appeal will be scheduled for one day with the Appellant to have up to 3 hours for her oral argument and the TPS and the IPRD each to have up to 2 hours for their oral argument. The Appellant should then have up to ¾ of an hour for reply argument.

DATED AT TORONTO THIS 23rd DAY OF FEBRUARY, 2015

[Original signed by]

Roy Conacher, Q.C. Vice-Chair, OCPC

Stephen Jovanovic Member, OCPC