ONTARIO CIVILIAN POLICE COMMISSION

DATE: By Written Submissions

FILE: OCPC-16-0055

CASE NAME: NOBODY AND ANDALIB-GOORTANI #9859 AND TORONTO POLICE SERVICE

IN THE MATTER OF AN APPEAL UNDER SECTION 87 (4) OF THE POLICE SERVICES ACT, R.S.O. 1990, C.P.15, AS AMENDED

BETWEEN:

ADAM NOBODY APPELLANT

-and-

POLICE CONSTABLE BABAK ANDALIB-GOORTANI #9859 RESPONDENT

-and-

TORONTO POLICE SERVICE RESPONDENT

DECISION

Panel: D. Stephen Jovanovic, Associate Chair

Written Submissions:

Julian N. Falconer and Marc E. Gibson, Counsel for the Appellant/Complainant

Harry G. Black, Counsel for the Respondent Police Constable

Sharon Wilmot, Counsel for the Respondent Toronto Police Service

Jean C. H. Iu, Counsel for the Intervener, the Independent Police Review Director

Introduction

1. This decision deals with the Appellant’s motion to grant an extension of time, if necessary, to deliver a Notice of Appeal.

Ruling

2. For the reasons that follow, it is ordered that:

i) An extension of time is granted, nunc pro tunc (retroactive), for the Appellant to deliver his Notice of Appeal;

ii) The Appellant will have thirty days from the date of this decision to deliver a factum;

iii) A Pre-Hearing Conference will be scheduled as soon as practical to deal with any issues arising from this decision and to schedule a date for the hearing of this Appeal.

Background

3. In a decision dated June 6, 2016, the Commission granted the Appellant leave to appeal, pursuant to section 87(4) of the Police Services Act (the PSA), the penalty decisions of the Honourable Lee K. Ferrier, Q.C. (the Hearing Officer) dated November 5 and 10, 2015. The Commission’s decision also provided that a Pre-Hearing Conference would be scheduled as soon as practical to deal with any resulting issues and to schedule a date for the hearing of the Appeal.

4. Attempts to schedule a Pre-Hearing Conference were unsuccessful. Counsel for the Respondent Officer wrote to the Commission on July 6, 2016, taking the position that as a Notice of Appeal had not been served within seven days of the decision granting leave to appeal, as required by Commission Rules 33.1 – 33.4, there was no Appeal, and accordingly, a Pre-Hearing Conference was not necessary.

5. This letter prompted the Appellant to deliver a Notice of Appeal on all parties, served by fax at 4:00 p.m. on July 6, 2016.

6. The Appellant now brings this motion seeking an interpretation of the time limits in Rules 32.5 and 33.1 – 33.4, and an Order granting an extension of time for the service and filing of a Notice of Appeal, if necessary.

7. The Appellant submits that the Rules allow for either thirty or thirty-seven days from receipt of the decision granting leave to appeal to deliver a Notice of Appeal. In the alternative, the Appellant submits that it is “in the interests of justice” that the Commission waive or vary the time limit in the circumstances of this case and accept the Notice of Appeal as filed on July 6, 2016.

8. The Respondent, Toronto Police Service, in a letter to the Commission dated July 7, 2016, took the position “that it appears that service [of the Notice of Appeal] was not in compliance with the rules, but the Commission could waive or vary any rules, including time limits.” However, the Respondent, Toronto Police Service, took no position on whether it would be appropriate to waive or vary the rule.

9. The Office of the Independent Police Review Director, in a letter to the Commission dated July 11, 2016, essentially agreed with the position of the Respondent, Toronto Police Service.

10. The Respondent Officer wrote to the Commission on July 14, 2016, taking the position that, not only had the Appellant failed to deliver his Notice of Appeal within seven days of the decision granting leave to appeal, he failed to comply with Rule 35.3 requiring him to deliver his factum and brief of authorities within thirty days of receiving the transcript, which he had received on April 25, 2016.

Reasons

11. The applicable Rules of the Commission for consideration in this matter are as follows:

1.04(1) These Rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

3.4 The Commission may, at any time, waive or vary any of these Rules, including time limits set out in these Rules, on such conditions as the Commission considers appropriate.

4.1 The Rules and procedures of the Commission shall be liberally and purposively interpreted and applied to:

4.1 (a) promote the fair, just and expeditious resolution of every proceeding on its merits.

32.5 If leave to appeal is granted, unless otherwise directed, within 7 days of receiving notice of the Commission’s order the public complainant shall comply with Rules 33.1 – 33.4 inclusive.

33.1 A police officer or public complainant who appeals to the Commission under sections 87(1) or 87(4) of the Act shall file with the Commission and serve on the other parties to the appeal a Notice of Appeal (Form 5) and a copy of the decision being appealed within 30 days of receiving notice of the decision and, where applicable, a copy of the Commission’s order under Rule 32.5.

33.2 If the Solicitor General or the Director is entitled to be heard on the argument of an appeal, the appellant shall also serve on each of them the Notice of Appeal (Form 5) and a copy of the decision being appealed within 30 days of receiving notice of the decision and, where applicable, a copy of the Commission’s order under Rule 32.5.

33.3 The appellant shall file with the Commission proof of service on the other parties and the statutory interveners of the Notice of Appeal (Form 5) and a copy of the decision being appealed in accordance with Rule 9.5 and, where applicable, a copy of the Commission’s order under Rule 32.5.

33.4 The appellant shall also file with the Commission proof that he or she has ordered a transcript of all oral evidence, if any, at the hearing which the appellant intends to rely on for the appeal. When the appellant is a member of the public, he or she shall file proof that the transcript has been requested from the chief of police. When the transcript has been received by the appellant he or she shall provide written notice to all parties and the Registrar.

12. The following factors are to be considered in deciding whether to exercise the Commission’s discretion to grant an extension of time, accepting the Respondent Officer’s interpretation of Rules 32.5 and 33.1 – 33.4:

i) Whether the Appellant formed the intention to appeal within the relevant time.

ii) The length of the delay.

iii) Prejudice to the Respondent.

iv) The merits of the Appeal.

The general Rule that an Appellant must have formed an intention to appeal within the relevant time period and must provide a reasonable explanation for any subsequent delay is subject to a broader principle that an extension should be granted if the interests of the case require it:. Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc. 2003, Carswell Ont. 18.

13. It would be ignoring the reality and the history of this matter to find that the Appellant did not form an intention to appeal within the relevant time period. The Appellant was granted leave to appeal. As soon as the Respondent Officer took the position that the Commission’s Rules required a Notice of Appeal within seven days of the order granting leave, a Notice of Appeal was delivered. This is, in my view, sufficient to establish an intention to appeal. Matters should be decided on their merits and I find that the justice of this case requires an extension of time.

14. The length of the delay is not so inordinate as to weigh against the extension being granted, and I am not satisfied that the Respondent Officer has suffered prejudice during the period for which the extension is required, so as to deny the extension. As the Commission wrote in its decision granting leave to appeal: “Notwithstanding the passage of time since the Summit, the matters raised in the proposed appeal remain of significant importance to the policing profession, as a whole and the community at large”. That conclusion is sufficient to address the merits of the appeal.

Decision

15. The Commission therefore orders the following:

i) An extension of time is granted, nunc pro tunc, for the Appellant to deliver his Notice of Appeal;

ii) The Appellant will have thirty days from the date of this decision to deliver a factum;

iii) A Pre-Hearing Conference will be scheduled as soon as practical to deal with any issues arising from this decision and to schedule a date for the hearing of this Appeal.

DATED AT TORONTO THIS 18th DAY OF AUGUST, 2016

D. Stephen Jovanovic, Associate Chair