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
File Number: 18-ADJ-011
Appeal under section 87(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended
Between:
Keith Ryan
Proposed Appellant
and
Cst. Paul Ramos, Cst. Manpreet Kharbar, and Toronto Police Service
Respondents
and
Office of the Independent Review Director (OIPRD)
Intervener
MOTION DECISION
Representatives:
Nima Hojjati: counsel for the proposed appellant
Harry G. Black, Q.C.: counsel for Cst. Kharbar
Peter M. Brauti and Alex Alton: counsel for Cst. Ramos
Ian Johnstone and Philip Wright: counsel for the Toronto Police Service
Pamela Stephenson Welch and Miriam Saksznajder: counsel for the OIPRD
Heard by way of written submissions
INTRODUCTION
1On April 23, 2011, Keith Ryan was arrested and subsequently charged with assaulting a Toronto parking enforcement officer, Devon Henry. While in the search room at the 14 Division in the presence of officers Ramos and Kharbar (the moving parties), Ryan was assaulted by Henry. The moving parties were charged with assault causing bodily harm over their actions with Ryan, while Henry was charged and eventually convicted of assaulting Ryan. The charges against the moving parties were dismissed after trial.
2On May 2, 2011, Ryan filed a complaint with the Independent Police Review Director (the Director) over the actions of the moving parties. The moving parties were not served with a Notice of Hearing under the Police Services Act (the PSA) until June 2015. Their first appearance before the Hearing Officer was in July 2015.
3For reasons that are not relevant to this motion, after numerous false starts to the hearing, the moving parties brought a motion before the Hearing Officer requesting an order staying the PSA charges. The Hearing Officer issued his decision on June 27, 2018 ordering the proceedings stayed as “Any other disposition would violate the community’s conscience.”
4On July 25, 2018 Ryan served the moving parties with the Commission’s Form 4 requesting leave to appeal the decision of the Hearing Officer. Ryan did not however serve the Director or the Solicitor General with his request for leave to appeal. The Director did deliver a Notice of Intent to be Heard on the Application for leave to appeal on August 9, 2018. By way of an email dated August 13, the office of the Solicitor General requested a copy of any Notice of Appeal.
5The moving parties have now brought this motion seeking an order dismissing the request for leave to appeal submitting that Ryan, by failing to serve the Solicitor General and the Director with his request, is in non-compliance with the section 87 of the PSA and the Commission’s rules of practice. The motion is opposed by Ryan, the Toronto Police Service (the TPS) and the Director.
No submissions were received from the Solicitor General although provided with notice of this proceeding.
DISPOSITION
6For the reasons that follow, the motion is dismissed.
ISSUES
7The moving parties submit that the Director and the Solicitor General are mandatory statutory interveners who have a right to be heard and that the failure of Ryan to serve them with the request for leave to appeal deprives the Commission of jurisdiction.
ANALYSIS
8The starting point of the analysis is section 87 of the PSA and in particular the following sub-sections:
(1) A police officer or complainant, if any, may, within 30 days of receiving notice of the decision made after a hearing held under subsection 66(3), 68(5) or 76(9), by the chief of police or under subsection 69(8) or 77(7) by the board, appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.
(3) The Commission shall hold a hearing upon receiving a notice under subsection (1) from a complainant if the appeal is from the finding that misconduct or unsatisfactory work performance was not proved on clear and convincing evidence.
(4) The Commission may hold a hearing, if it considers it appropriate, upon receiving a notice under subsection (1) from a complainant with respect to an appeal other that the appeal described in subsection (3).
(6) The Solicitor General is entitled to be heard, by counsel or otherwise, on the argument of the appeal.
(7) The Independent Police Review Director is entitled to be heard, by counsel or otherwise, on the argument of the appeal of a decision made in respect of a complaint made by a member of the public.
9There is no dispute that the Commission does not have the authority to extend the 30-day time period set out in section 87(1) and that the Solicitor General and Director, whether described as parties or interveners, have the right to be heard “on the argument of the appeal.”
10In my view, on a plain reading of that section, there is no requirement on Ryan to have served the request for leave to appeal on either the Solicitor General or the Director within the 30-day period. Ryan, in his submissions agrees, but the Director and the moving parties disagree.
11The moving parties take the position that Ryan’s failure to serve the Solicitor General and the Director, as statutory interveners, deprives the Commission of jurisdiction to consider the appeal. They rely a number of decisions, most of which are distinguishable as will be discussed below.
12The Director relies on the Divisional Court decision in Nobody v. Ontario Civilian Police Commission, 2016 ONSC 5824. The issue to be decided in that case was whether the Director was named as a respondent to the judicial review application and, if not, should the Director be added as a respondent. The court held that although the Director’s name did not appear in the heading of the application, it appeared later in the document in the list of respondents, so in fact the Director was already named as a respondent.
13The court went on to consider, however, if it was wrong in that conclusion, whether the Director should then be added as a respondent. The court’s analysis was based in part on the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and in part of the Judicial Review Procedure Act, R.S.O. 1990, c. J. The court also went to analyze the role of the Director in the Ontario police complaints system. At paragraph 36, the court wrote:
I would characterize the second point raised by the constables as unduly technical. When the PSA gives the Director the right to be heard on an appeal to the Commission, by necessary implication it gives the Director the right to participate in pre-hearing matters such as scheduling hearings, pre-hearing conferences, pre-hearing determinations of the admissibility of fresh evidence, as well as motions such as the one brought by the constables in the instant case.
14Based on the foregoing, the Director takes the position that section 87 of the PSA must be read as requiring service on him of a request for leave to appeal.
15In the Nobody decision, the court was dealing with the situation where there was an appeal before the Commission from the decision of a Hearing Officer and not a request for leave to appeal. In view of the Commission’s rules of practice, different considerations apply to the two circumstances. The relevant rules are as follows:
30.0 Parties
30.1 The parties to an appeal include:
(a) the police officer;
(b) the prosecutor at the disciplinary hearing appealed from; and
(c) the public complainant
31.0 Statutory Interveners
31.1 The statutory interveners entitled to be heard at an appeal relating to an event occurring on or after October 19, 2009 include:
(a) the Solicitor General; and
(b) the Director, where a member of the public made the
complaint or complaints which were the subject of the
disciplinary hearing.
32.0 Leave to Appeal
32.1 A public complainant who wishes to appeal the penalty imposed on a police officer following a disciplinary hearing under section 87(4) of the Act shall file with the Commission and serve on the other parties to the hearing, A Request for Leave To Appeal A Disciplinary Penalty (Form 4) and a copy of the decision being appealed within 30 days of receiving notice of the decision.
32.2 Within 30 days after delivering the request for leave to appeal, the proposed appellant shall deliver a factum and brief of authorities supporting the request.
32.3 The other parties to the hearing shall deliver their factums and briefs of authorities within 30 days of receiving the proposed appellant’s factum and brief of authorities.
32.4 Requests for leave to appeal will be heard in writing unless a party serves and files an objection when he or she delivers their materials on the Request for Leave To Appeal A Disciplinary Penalty (Form 4).
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.
33.0 Appeal Process
33.1 A police officer or public complainant who appeals to the Commission under section 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 Rue 32.5.
16Rule 32.1 refers to appeals from penalty decisions but by operation of rule 3.5 it would also be applicable to other matters where leave is required. It should be noted the no participant in this matter took the position that leave to appeal was not required, as was decided by the Commission’s decision in Grychtchenko and McCartney and Toronto Police Service, 2015 ONCPC 20.
17The moving parties rely on a number of decisions in support of their position that the failure of Ryan to serve statutory interveners deprives the Commission of jurisdiction. The first case is Otaco Limited v. The Town of Orillia, 1947 CanLII 99 (ON CA), [1948] O.R. 37 (C.A.). Briefly, this decision dealt with a section of the Assessment Act, R.S.O. 1937 c. 272 which did not require that a municipal corporation in an appeal to the Ontario Municipal Board serve its notice of appeal on the opposite party. The court held that, notwithstanding that section, an “adversary or respondent” has a right to receive notice of the appeal.
18Section 83(3) of the PSA provides that the parties to a hearing are the “prosecutor, the police officer who is the subject of the hearing and, if the complaint was made by a member of the public, the complainant. The Director is not a party to the hearing. Whatever rights the Director has on an appeal are set out in the PSA and the Commission’s rules. I do not see how Otaco applies in this matter.
19The next case raised by the moving parties is Hare v. Ontario (Registrar of Real Estate Brokers), [1948] O.J. No. 1256 (Div. Ct.). Again, briefly, this decision dealt with the situation where a notice of appeal was not served on a party directly but on his lawyer. The court held that Otaco was still good law in Ontario and that service on a party’s lawyer was not proper service under the then rules of practice. I do not see how Hare is of any assistance in dealing with the issues in this matter.
20The third case relied on by the moving parties is Stringfellow v. Gordon S. Bonner and Associates, [1992] B.C.J. No. 2563 (Sup.C.t.). That decision simply states the obvious, that the failure to comply with statutory requirements for bringing an appeal is fatal to an appeal. The case does not assist in deciding what those statutory requirements are.
21The moving parties cite a number of other decisions, including two of the Commission, at paragraph 16 of their factums in support of their submission that it has no jurisdiction to hear the appeal where there has been non-compliance with section 87 of the PSA. All of these decisions are to the effect that statutory time limits for filing an appeal cannot be extended. That seems axiomatic.
22The final decision raised by the moving parties that should be considered is Sipar v. Schertzer et al, 2000 CanLII 45062 where the Commission dealt with an application for leave to appeal. The issue was whether the applicant/complainant properly served the prosecutor and the subject officers with his notice of intention to appeal. The Commission’s then rule 8.1 provided that a Notice of Appeal had to be served on the other parties within thirty days of an appellant receiving notice of the decision being appealed.
23The Commission held that while the applicant/complainant served the Commission with his “formal notice of appeal” he failed to comply with rule 8.1 by serving the officers with the notice within 30 days. The Commission declined to extend the time for service and granted the officers’ motion to deny the application for leave to appeal. In my view, that decision was within the discretion of the Commission on the particular facts of that case and is not binding on how the Commission should exercise its discretion in other situations.
24Accordingly, under section 87(1) of the PSA and the Commission’s rules, it appears that service on the Director or the Solicitor General is not required until leave to appeal has been granted. That would still ensure that both would be heard on the “argument of the appeal” as provided for in sections 87(6) and (7) of the PSA.
25The Director submits, however, that if it is correct that he is entitled to receive a copy of the request for leave to appeal, the Commission can and should exercise its discretion under rules 3.4 and 4.1 to waive what he says is “a procedural irregularity regarding service.” These rules are as follows:
3.4 The Commission may, at any time, waive or vary any of these rules, including the 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 purposely interpreted and applied to:
(a) promote the fair, just and expeditious resolution of every proceeding on its merits;
26The Director delivered a Notice of Intent to Appear on August 9th. If I had found that the Director was entitled to receive a copy of the Notice of Request for Leave to Appeal, I would have ordered waiver of the time limits for service.
27To summarize, Ryan has complied with section 87 of the PSA by serving the Commission with a written notice, setting out the grounds upon which he intends to appeal within 30 days of receiving notice of the decision being appealed. Having complied with that statutory provision, his leave to appeal request will then be governed by the Commission’s rules of practice which do not require service of a Notice of Appeal on the Director and the Solicitor General until after the Commission has granted leave to appeal. Ryan was not required to serve either the Director of the Solicitor General with his Notice of Request for Leave to Appeal within 30 days of receiving notice of the decision of the Hearing Officer.
28Ryan, in his factum has requested costs for this motion in the amount of $1,000.00 plus HST pursuant to rule 26. Costs under that rule may be awarded by the Commission where a “party in the proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.” I do not find that the conduct of the moving parties comes within that rule and would not order costs.
ORDER
29The motion of the moving parties is dismissed. The Director, having served a Notice of Intent to be Heard, the Toronto Police Service and the moving parties shall serve their factums on the Request for Leave to Appeal by January 25, 2019.
Released: December 5, 2018
_________________________
D. Stephen Jovanovic