Kraljevic v. Svidran, 2017 CanLII 24120

ONTARIO CIVILIAN POLICE COMMISSION

DATE: By written submissions

CASE NAME: Emmanuel Svidran, Katherine Plomp and Wayne Wilson and Ottawa Police Service

FILE: OCPC-16-ADJ-015

In the Matter of an Appeal Under Section 87 (1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended

Bruno Kraljevic APPELLANT/PUBLIC COMPLAINANT

-and-

Constable Emmanuel Svidran, Constable Katherine Plomp, and Acting Sergeant Wayne Wilson RESPONDENTS

-and-

Ottawa Police Service RESPONDENT

-and-

Office of the Independent Police Review Director STATUTORY INTERVENER

DECISION

Panel: D. Stephen Jovanovic

Representatives: Bruno Kraljevic, appellant/public complainant W. Mark Wallace, Counsel for the respondent police officer, Emmanuel Svidran Pamela Machado, Counsel for the respondent police officers, Katherine Plomp and Acting Sergeant Wayne Wilson Christiane Huneault, Counsel for the respondent, Ottawa Police Service Lynette D’Souza, Counsel for the Statutory Intervener, the Independent Police Review Director

Introduction

1This decision deals with a motion brought on behalf of Constable Katherine Plomp and Acting Sergeant Wayne Wilson (the moving parties) for an order “Dismissing the appeal or quashing the request for leave to appeal for failure [of the appellant] to comply with the PSA and the Rules of Practice: rules 32.1, 32.2, 33.1 and 35.3”.

2Pursuant to an order made at the Pre-Hearing Conference held on January 16, 2017 this motion was to be based on the written submissions of the parties. Submissions were received from the moving parties, the intervener and the appellant. Reply submissions were also received by the moving parties. The intervener opposed the moving parties’ motion.

Ruling

3For the reasons that follow, the motion is dismissed.

Analysis

4The principal ground for the motion advanced by the moving parties appears to be that the appellant ought to have sought leave to appeal a disciplinary penalty rather than having delivered a Notice of Appeal. Intertwined with this ground of appeal are submissions that the appellant did not comply with the Commission’s rules for delivery of the documents related to the appeal. The moving parties also submit that, in essence, the grounds for appeal outlined in the appellant’s factum are devoid of any merit and that they have suffered prejudice by the delay in this matter.

5The Hearing Officer delivered two decisions dated July 11, 2016. In the first decision he found the respondent Constable Svidran not guilty of two counts of neglect of duty. In the second decision he granted a motion for non-suit, dismissing the charges of “discreditable misconduct” (the actual charges were for neglect of duty) against the moving parties. These decisions, however, were not received by the appellant until September 16, 2016, as evidenced by an email from the Ottawa Police Service (the OPS) dated that day.

6The appellant sent the moving parties, by Canada Express Post, his Notice of Appeal on October 11, 2016 addressed to the OPS and filed the Notice with the Commission on October 17, 2016. The Notice was sent by the OPS to the moving parties, at their work e-mails on October 14, 2016.

7The short answer to the moving parties’ position that the appellant should have sought leave to appeal is simply that the appellant was not seeking leave to appeal a disciplinary penalty as none was imposed by the Hearing Officer. He dismissed all of the charges. Accordingly, neither section 87 (4), nor rule 32.1, which deals with leave to appeal requests, have any application to this matter.

8Although the necessity of the appellant seeking leave to appeal was the thrust of the moving parties’ position on the motion, they also submitted that, in the alternative, the Notice of Appeal should have been served directly on them, rather than through the OPS, on or before October 16, 2016. In my view as the Notice of Appeal was served on the Commission within the thirty days of the appellant’s receipt of the decision, he complied with section 87(1) of the PSA. The question then to be decided is whether he complied with the Commission’s rules for service of the Notice of Appeal on the parties.

9The moving parties’ motion record includes an e-mail from the OPS dated October 14, 2016 to all three officers attaching a scan of the Notice of Appeal and indicating that hard copies were being forwarded to them through the OPS internal mail system. No affidavit has been filed by the moving parties indicating that they did not receive the Notice of Appeal and they certainly received it in advance of this motion. The Commission has the authority under rule 3.4 allowing it to…”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”. Rule 4.1 and 4.1 (a) provide that the Rules “…shall be liberally and purposely interpreted…” in order to “promote the fair, just and expeditious resolution of every proceeding on its merits”.

10The appellant asked counsel for the moving parties in an e-mail dated October 6, 2016 if she would accept service of the Notice of Appeal and accordingly they were aware of the appeal as of that date. Counsel for the moving parties acknowledged that she would accept service subject to some conditions that the appellant was not willing to accept. The appellant mistakenly then served them through the OPS instead. Rule 9.1(b) allows for service on a party’s “last known address”. Rule 9.1(f) provides that service of documents may be effected “by any other means authorized or directed by the Commission”. In my view, taking into account all of the foregoing this would be an appropriate situation for the Commission to authorize the service of the Notice of Appeal on the moving parties as effected by the appellant on the OPS, on a retroactive basis if necessary.

11The submissions of the moving parties as to the alleged lack of merit to the appeal are best left to the panel hearing the appeal after full argument. The materials filed by the moving parties do not establish that they have suffered any degree of prejudice in this matter that would warrant a dismissal of the appeal on a summary basis.

12In my view, there is no basis for an order as to costs of the motion as no party has acted “unreasonably, frivolously, vexatiously or in bad faith” so as to justify such an order pursuant to Rule 26.0 Accordingly, the hearing of the appeal will proceed on June 15, 2017 as previously scheduled.

Decision

13The motion is dismissed without costs.