ONTARIO CIVILIAN POLICE COMMISSION

Safety, Licensing Appeals and Standards Tribunals Ontario

COMMISSION CIVILE DE L’ONTARIO SUR LA POLICE

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

2018 ONCPC 12

Date: 07-31-2018

Appeal under section 87(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended.

Between:

Sgt. Helena Pereira

Appellant

and

Hamilton Police Service

Respondent

DECISION

Panel:

D. Stephen Jovanovic, Associate Chair Jonathan Batty, Member Jenny Restoule-Mallozzi, Member

Appearances:

Joshua Phillips, counsel for the appellant Bianca Bell, counsel for the appellant Lynda Bordeleau, counsel for the respondent

Hearing:

May 2, 2018. Toronto, Ontario,

Introduction

1This is an appeal from the decision of Superintendent (Ret.) Morris Elbers (the Hearing Officer) dated July 27, 2015. He found the appellant guilty of one count of discreditable conduct, one count of unlawful or unnecessary exercise of authority and one count of insubordination, all contrary to the Code of Conduct (the Code), O. Reg. 268/10 under the Police Services Act, R.S.O. 1990, c. P.15 (the PSA).

2In this appeal, the appellant does not question the events leading to her convictions. Although in the Notice of Appeal and her factum the appellant requested an order setting aside the penalty decision, no submissions as to an appropriate penalty were made during oral argument or in the appellant’s factum. The focus of the appeal was on the decision of the Hearing Officer, dated January 26, 2016 whereby he dismissed her motion, brought in September 2015 that he recuse himself due to a reasonable apprehension of bias. The Hearing Officer also found that, in any event, the appellant had waived the right to raise the objection, as she did not do so until after he had rendered his decision convicting her on the three counts of misconduct.

Disposition

3For the reasons that follow, the decision of the Hearing Officer finding the appellant guilty of three counts of misconduct under the Code is confirmed. As well, the penalties imposed by the Hearing Officer are confirmed.

Background

4The appellant was originally charged with six counts of misconduct but only found guilty on the following charges:

Count #2 (Cousins incident) Discreditable Conduct

Discreditable conduct in that on or about February 7, 2013, while a sworn member of the Hamilton Police Service, she acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Hamilton Police Service by failing to avoid a conflict of interest in the performance of her official duties involving a family member, thereby constituting an offence against discipline, as prescribed in section 2(1)(a)(xi) of the Code of Conduct.

Count #4 (Female prisoner incident) Unlawful or unnecessary exercise of authority

Unlawful or unnecessary exercise of authority in that on or about March 29, 2013, being a sworn member of the Hamilton Police Service, she used unnecessary force against a prisoner or other person contacted in the execution of duty, thereby constituting an offence against discipline as prescribed in section 2(1)(g)(ii) of the Code of Conduct.

Count #5 (Female incident) Insubordination

Insubordination in that on or about March 29, 2013, she, without lawful excuse, disobeyed, omitted or neglected to carry out any lawful order by not being readily identifiable as a police officer while on duty in the Custody Area, contrary to Hamilton Police Service Policy 1.23 – Uniform Equipment / Prescribed Dress, thereby constituting an offence against discipline as prescribed in section 2(1)(b)(ii) of the Code of Conduct.

5At the hearing, the appellant was represented by Brad Boyce, the Administrator of the Hamilton Police Officers’ Association. Boyce was assisted by Belchior Arruda, a labour relations officer with the Association. Early in the proceeding, the appellant became concerned about certain comments made by the Hearing Officer directed at Boyce. More importantly she was also concerned with the interactions between the Hearing Officer, Gary Melanson who was the prosecutor, Detective Breziuk who was the prosecutor’s advisor and to a lesser extent Staff Sgt. Potts, a witness.

6The hearing took place over nine days in a room on the third floor of the Hamilton Police Service Division 1. The office of the Hamilton Police Chief was also located on this floor, as were offices for administrative staff and the Senior Officers’ Lounge, also known as the lunchroom.

7Briefly, the appellant’s concerns were as follows:

i. The Hearing Officer exhibited a pronounced level of camaraderie and familiarity with the prosecutor, the prosecutor’s advisor and certain prosecution witnesses which was not extended to the appellant or her representatives;

ii. on several occasions, the Hearing Officer “chided” the appellant’s representative (Boyce) regarding his conduct in the hearing (comments about spilled water and cell phone use);

iii. on six hearing days in January and March the Hearing Officer shared a “private lunch” with Melanson, Bereziuk and Potts in the lunchroom to the exclusion of the appellant and his representative;

iv. the appellant and her representatives were never invited to these lunches and their opinion as to the propriety of the lunches was never sought.

8On the third day of the hearing, January 8, 2015, Boyce attended the lunchroom to discuss scheduling issues when he observed the Hearing Officer having lunch with Melanson, Potts and Bereziuk. On March 11, 2015 Boyce and Arruda again attended the lunchroom to discuss scheduling issues while the Hearing Officer was having lunch with Melanson. Boyce and Arruda declined the invitation to share the lunch.

9It is not clear from the evidence how much time the Hearing Officer spent with the prosecution in the lunchroom the first six days of the hearing. However, there was no suggestion that the Hearing Officer actually discussed any aspect of the hearing during these lunches.

10Shortly after the March 11th lunch Boyce contacted Mr. Visentini, in-house counsel for the respondent to express his concerns with the lunch arrangements. Mr. Visentini advised Boyce that he did not believe the lunches were proper. Mr. Visentini then spoke directly with the Hearing Officer, outside of the context of the hearing and although the details of that discussion are not known, the Hearing Officer stopped the lunches with the prosecutor and the others.

11The hearing continued thereafter for two days. On July 27, 2015 the Hearing Officer gave his decision convicting the appellant on three counts of misconduct. The penalty phase of the hearing was scheduled for September 11, 2015. However before it began, Boyce advised the prosecution and the Hearing Officer that he intended to bring a motion requesting an order that the decision of July 27, 2015 be set aside, that the Hearing Officer recuse himself and that a new hearing should be convened.

12The Hearing Officer dismissed the motion in a decision dated January 26, 2016. In doing so he wrote, in part the following:

The one and only interest I have in the outcome of these proceedings is that they are fair, objective and honest. I cannot envision a reasonable, informed person, viewing these matters realistically and practically, and having thought the matter through, reasonably concluding that the Tribunal is biased.

The allegation of bias before the Tribunal is based purely on supposition and conjecture. To be sustainable, surely it appears to me that some factual information or logic be placed before me, not just supposition and conjecture.

It is certainly worth repeating that section 83(12) and 83(13) of the PSA specifically outline with whom an adjudicator may speak with and under what circumstances.

13The Hearing Officer also accepted the prosecutor’s argument that, in any event, the appellant did not raise the issue of reasonable apprehension of bias in a timely manner and that accordingly she waived the right to make the claim after the decision on the merits had been rendered. He wrote the following:

Am I to believe that there was not an issue that was spoken about until late August or early September. That defies logic. An unfavourable decision in the eye of the officer was rendered and this is a tactic to attempt to suspend this decision.

14The appellant had submitted an affidavit to the Hearing Officer in support of her position on the motion for recusal. She swore that “Between August 25th and Sept. 3rd, 2015, I Iearned for the first time that I could object to the Hearing Officer having lunch with the prosecutor without my consent and that I could raise that there was a reasonable apprehension of bias….” The appellant also filed affidavits from Boyce and Arruda, while the prosecution filed affidavits from Bereziuk and Detective Brien Smyth who made some of the arrangements for the lunches. Smyth swore that on two occasions, Boyce came into the lunchroom when the Hearing Officer was with the prosecutor, but that at no time was there any discussion about the hearing except in the presence of both Melanson and Boyce.

15In a decision dated August 17, 2017 the Hearing Officer imposed the following penalties:

i. Count 2: forfeiture of 24 hours

ii. Count 4: forfeiture of 50 hours

iii. Count 5: a reprimand and further training.

Issues

16In our view, the issues in the appeal may be fairly stated as follows:

(i) Did the Hearing Officer err in finding there was no reasonable apprehension of bias?

(ii) Did the Hearing Officer err in holding that the appellant waived her rights?

(iii) Did the Hearing Officer breach the rules of natural justice and deny the appellant a fair hearing?

Did the Hearing Officer err in finding there was no reasonable apprehension of bias?

17The parties agree that the standard test to be applied in determining whether a reasonable apprehension of bias existed was set out in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 where Justice deGrandpré wrote the following:

…..the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the adjudicator], whether consciously or unconsciously, would not decide fairly.”

18The parties further agree that the definition of what constitutes bias was set out in R. v. R.D.S., [1997] 3 S.C.R. 48 where the court adopted the following statement from R. v. Bertram, [1989] O.J. No. 2123:

In common usage bias describes a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.

19The court also wrote that the onus of demonstrating bias lies with the party alleging its existence and whether a reasonable apprehension of bias arises will depend entirely on the facts of the case.

20Where an issue of procedural fairness is involved, there is no need to consider the appropriate standard of review. The proper approach is to ask whether the requirements of procedural fairness and natural justice have been met: Ontario Provincial Police v. MacDonald, 2009 ONCA 805.

21The appellant submitted that the Hearing Officer made a number of errors in his consideration of the existence of a reasonable apprehension of bias, including the following:

i. He misstated the test to be applied writing that the first part of the test was that the person “alleging” bias must be reasonable as opposed to the person “considering” bias.

ii. He failed to examine the alleged apprehension of bias from the perspective of a reasonable person.

iii. He made numerous findings that were not in the evidence including findings related to his own conduct.

iv. He refused to accept the consistent and uncontested evidence of the appellant, Boyce and Arruda, finding that their evidence was not credible.

v. He erred in writing that he was functus with respect to the validity of the PSA hearing process.

vi. He analyzed the issue of reasonable apprehension of bias from his own perspective.

22Based on our review of the decision of the Hearing Officer, we agree that he did not properly apply the test for deciding whether there existed a reasonable apprehension of bias. In our view, the Hearing Officer conflated the concepts of actual bias and a reasonable apprehension of bias. He viewed the matter from a personal, subjective perspective rather than from the standpoint of the reasonable person. The Hearing Officer also erred in his interpretation of sections 83(12) and (13) of the PSA, which he relied on, in part, to justify his decision on the motion.

23The Hearing Officer wrote the following:

The allegation of bias before this Tribunal is based purely on supposition and conjecture. To be sustainable, surely, it appears to me that some factual information or logic be placed before me, not just supposition or conjecture.

It is certainly worth repeating that section 83(12) and 83(13) of the Police Services Act specifically outline with whom an Adjudicator may speak with and under what circumstances.

24The allegation of a reasonable apprehension of bias was based on factual information. While the comments made by the Hearing Officer to Boyce about his phone and spilling water would not, in our view, be considered by a reasonable person as being capable of giving rise to a reasonable apprehension of bias, the private lunches would be so capable. The fact that specifics of the hearing were not discussed would not be sufficient to overcome the apprehension of bias. In our view, the private lunches between the prosecutor and the Hearing Officer should not have taken place, even given the informality of an administrative proceeding.

25The Hearing Officer wrote the following:

The prosecution, defense and adjudication of Police Services Act cases are conducted by a small group of people. It is not uncommon for adjudicators, defense counsel and prosecutors to be involved in more than one hearing at any given time. It is normal to exchange pleasantries.

Unfortunately the Hearing Officer did more than exchange pleasantries. The private lunches could certainly convey the sense of friendship giving rise to a reasonable apprehension of bias.

26Once the Hearing Officer became aware of the concerns of Boyce about the lunches through his conversation with Mr. Visentinti (which in itself was improper), he should have put the concerns raised on the record and dealt with them immediately.

27Sections 83(12) and (13) read as follows:

(12) Subject to subsection (13), the person conducting the hearing shall not communicate directly or indirectly in relation to the subject matter of the hearing with any person, unless the parties receive notice and have an opportunity to participate.

(13) The person conducting the hearing may seek legal advice from an advisor independent of the parties, and in that case the nature of the advice shall be communicated to them so that they make submissions as to the law.

28In our view, these sections of the PSA have no application to this matter and cannot justify what would otherwise be a reasonable apprehension of bias, as we have found existed. The appellant has satisfied the high threshold of demonstrating a reasonable apprehension of bias.

Did the Hearing Officer err in holding that the appellant waived her rights?

29The Hearing Officer began his consideration of the waiver issue at page 11 of his decision by setting out the respective positions of the parties. He wrote:

The issue raised by [the appellant] is that Mr. Boyce is not a lawyer and therefore he did not know the responsibility of raising the issue with the Tribunal in a forthright matter (sic). A lawyer he states would know this responsibility.

[The prosecution] raises the converse argument…. “if a party who alleges bias does not raise the allegation in a timely manner, they will be found to have waived the right to make the claim. A party may not remain silent, wait until the outcome of a proceeding and if the outcome is unfavourable, then raise a procedural point that it had full knowledge of at the time of the Hearing as grounds for invalidating the result.”

30The appellant makes three arguments in support of her position that the Hearing Officer did err in his finding that the she waived her right to make the reasonable apprehension of bias argument by waiting to do so until after the decision was rendered. She submits that:

i. No waiver can be inferred where the appellant and his/her representative was not aware of the right to object on the grounds of reasonable apprehension of bias when the conduct giving rise to that apprehension occurred.

ii. The Hearing Officer should have accepted the uncontradicted affidavit evidence of the appellant and her witnesses that they were not aware of the right to object until after the decision on the merits was given.

iii. The finding that the appellant waived her right to object as a tactical decision was based on erroneous and unreasonable findings of fact.

31The appellant relies, in part, on the decision in Khakh v. Canada (Minister of Employment and Immigration), 1993 CanLII 3007 (FC), [1994] 1 F.C. 548 which contains a detailed analysis of the principle of waiver. In Khakh there was a finding of a reasonable apprehension of bias on the part of the adjudicator and the issue was whether there had been waiver. Justice Nadon wrote the following:

From the above authorities, one can conclude that a reasonable apprehension of bias should be raised at the first opportunity. The question that flows from this is: “When is the first opportunity?” Halsbury’s Laws of England, to which reference is made by Marceau J.A. in In Re Human Rights Tribunal, states that there is no waiver unless the party entitled to make the objection is fully aware of the nature of the disqualification and has an adequate opportunity to make the objection.

32Justice Nadon found that in the case before him waiver could not be implied because neither the applicant nor his counsel (who was not a lawyer) was aware of the right to object. He added that had the applicant been represented by a lawyer, his “conclusion might possibly have been different.”

33Simply put, the appellant’s position is that as her representative, Boyce, who was not a lawyer, and was not aware of his right to raise the issue of apprehension of bias at the hearing, there could be not implied or voluntary waiver. The respondent submits that the Hearing Officer correctly found that waiver applied in the circumstances.

34The respondent relied on a number of decisions in support of its position on waiver including Ottenbreit v. Paul, 2015 SKQB 326; R. v. Curragh Inc., 1997 CanLII 381 (SCC); City of Kelowna v. Canadian Union of Public Employees, Local 338, 2014 CanLII 16967 (BC LRB); Stetler v. Ontario Flue-Cured Tobacco Growers’ Marketing Board, 2005 CanLII 24217 (ONCA) and; Zundel v. Canada (Human Rights Commission), 1999 CanLII 7629 (F.C.) aff’d 2000 CanLII 16575 (FCA), 2000 CarswellNat 2649 (Fed. C.A.).

35We have considered all of these decisions but in our view the most apposite decision is Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856. The Court of Appeal dealt with waiver at paragraphs 50 to 56 of the decision. At paragraph 51 and 52 Justice Cronk wrote the following:

51. There is no doubt that where the facts giving rise to a possible apprehension of bias become apparent during the course of a hearing, it is incumbent on the party affected “to put the allegations and the facts on which the party is relying to the decision maker at the earliest possible moment” (citations omitted). In that way, the challenged decision maker is afforded an opportunity to set out its position regarding the bias claim and a reviewing court will have the benefit of a complete record on the issue. This obligation assumes, however, that the pertinent facts are apparent to the affected party and that a voluntary and informed decision might be made whether to advance a bias claim on those facts.

52. Brown and Evans, in Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publication, 2010) at 11-77 – 11-78.note that objections on the ground of bias are generally deemed to have been waived if the affected party knew of the grounds for the bias claim and acquiesced in the proceedings “by failing to take objection at the earliest practicable opportunity” unless, for example, the affected party “was unrepresented by counsel and did not know of his right to object at the time” (citation omitted).

36Justice Cronk, in finding that there was no waiver in the case, also noted that where an affected party does not have counsel, that would militate against a finding of waiver where there was some delay in raising the bias objection. Finally, at paragraph 54 she wrote:

54. In my view, in the absence of some contrary indication in the record, it is unlikely that these self-represented respondents, although obviously aware of the adjudicator’s comments, were also aware of their right to object to the comments during the hearing on the basis of bias and that they elected not to do so at the first opportune moment for tactical or strategic reasons. This case is therefore distinguishable from those cases the affected party knew or was advised, during the proceeding at issue, of a potential bias claim and chose not to object.

37Boyce had been employed by the Hamilton Police Association in various capacities since 1991 and prior to that was a staff representative with the United Steelworkers. In his affidavit filed on the recusal motion he indicated that he had assisted approximately 100 officers in disciplinary matters, 18 of which had gone to a disciplinary hearing. After reciting some of the events during the hearing that gave rise to the apprehension of bias concerns, he stated that these were mentioned to the appellant who “expressed a heightened concern for what this meant regarding the fairness of her hearing.” No date was given when this “heightened concern” was expressed.

38Paragraph 31 of his affidavit was as follows:

I was sufficiently concerned about this that shortly after I mentioned these events to Mr. Marco Visentini, Legal Counsel for the HPS. He said he did not think the lunch arrangements I described were proper. However, at no point did Mr. Visentini suggest that this raised a “reasonable apprehension if bias” or could attract a legal remedy.

39Boyce went on to indicate that although he had heard of the notion of bias he had never encountered it as an issue and did not know the legal requirements for establishing bias.

40A question was posed by the panel to the appellant’s counsel during oral submissions as to what his argument on waiver would be if the appellant were represented by a first year lawyer (rather than a 26 year veteran administrator with the Hamilton Police Association). The answer was to the effect that the argument would be more difficult to advance.

41Notwithstanding the fact that the Hearing Officer did make some factual errors in his decision on the recusal motion, errors acknowledged by the respondent, in our view, he was correct in deciding the waiver issue. Boyce was in fact an experienced representative in disciplinary matters. According to the prosecution, he represented police officers at 18 disciplinary hearings and six appeals before the Commission. He was concerned enough about the private lunches that he took the unusual step of contacting in-house counsel for the respondent who advised him that the lunches were improper. Yet, he did nothing. He seemingly relies on the fact that he did not get legal advice on bias from Mr. Visentini.

42In summary, Boyce and through him the appellant had all the information needed to advance the claim of apprehension of bias well before the Hearing Officer released his decision on July 27, 2015 convicting the appellant. The appellant was represented by an experienced official from her Association, who had an adequate opportunity of raising the concern about the appearance of bias between March and July 2015 and chose not to do so.

43The appellant submitted that the Hearing Officer erred in not accepting the “uncontradicted” affidavit evidence of Boyce that he was not aware that he could make the objection. Further, according to the appellant, the Hearing Officer’s finding that it was a tactical decision on the part of Boyce to not raise the objection until after the decision on the merits was given was based on erroneous and unreasonable findings of fact.

44An example of such an unreasonable finding, according to the appellant, was when the Hearing Officer wrote about Boyce the following:

Mr. Boyce is a knowledgeable person in Police Act matters. He has numerous contacts with Defence Counsel. I cannot believe that he does not look for guidance from these persons while preparing or conducting defense or the Hamilton Police Service members alleged with misconduct.

An unfavourable decision in the eyes of the officer was rendered and this is a tactic to attempt to supersede this decision.

45We see nothing wrong with the Hearing Officer expressing his opinion in the first paragraph. With respect to the second paragraph, Boyce swore that he “did not believe there was any basis to raise this issue [bias] on behalf of Sgt. Pereira.” The Hearing Officer found that not raising the issue was a tactic.

46A trier of fact need not accept everything stated in an uncontradicted affidavit: R. v. Li, 2012 ONCA 291; Roach v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2005 CanLII 10047 (ON CA), 2005 CanLII10047 (ONCA). The appellant cites R.K.L. v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116, [2003] F.C.J. No. 162 for the opposite proposition. However, in R.K.L. the court wrote that uncontradicted evidence may be rejected if it is not consistent with the probabilities affecting the case as a whole.

47In our view, even if the Hearing Officer was wrong to find that Boyce’s failure to object was a tactic, there was more than enough evidence as outlined above to find, as we do, that waiver applied. The ultimate result would have been the same.

Did the Hearing Officer breach the rules of natural justice and deny the appellant a fair hearing?

48The appellant’s submissions under this ground of appeal have already been addressed above as they essentially dealt with the reasonable apprehension of bias, an issue upon which we found in the appellant’s favour.

ORDER

49Pursuant to section 87(8)(a) of the Police Services Act, the decision of the Hearing Officer convicting the appellant of three counts of misconduct is confirmed. The Hearing Officer’s decision on penalty is also confirmed.