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
Appeal under section 87(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended
Between:
Cst. Troy Sylvester
Appellant
and
Toronto Police Service
Respondent
DECISION
Panel:
D. Stephen Jovanovic, Associate Chair Jenny Restoule-Mallozzi, Member John Kromkamp, Member
Appearances:
Harry Black, Q.C., for the appellant Alexandra Ciobotaru and Jerry Leung, for the respondent
Place and date of hearing:
Toronto, Ontario February 7, 2019
Introduction
1By way of a decision of a Hearing Officer dated July 18, 2017, the appellant was found guilty of one count of corrupt practice contrary to section 2(1)(f) (ii) of the Code of Conduct (the Code), O. Reg. 268/10 under the Police Services Act (the PSA). In a second decision, dated June 13, 2018 the Hearing Officer ordered that the appellant be dismissed immediately.
2The Commission heard the appeal from those decisions on February 7, 2019.
3By way of another decision of a Hearing Officer dated February 21, 2018 the appellant was found guilty of 5 counts of deceit, contrary to section 2(1)(d)(ii) of the Code, and 6 counts of insubordination, contrary to section 2(1)(b)(ii) of the Code. A penalty of dismissal within 7 days unless the appellant resigned within those days was imposed in a decision dated January 30, 2019. The appellant filed a Notice of Appeal with the Commission from these decisions the following day.
4The appellant’s counsel advised the Commission on April 2, 2019 that the appellant had retired as of that day and was abandoning his appeal from these decisions, but he made no reference to the appeal that was heard on February 7, 2019.
5The Commission requested submissions from the parties as to the effect of the appellant’s resignation on the appeal that was heard. Counsel for the respondent advised that she was taking no position while counsel for the appellant did not make any submissions.
Disposition
6For the reasons that follow, we find that the Commission lacks jurisdiction to continue with this appeal and it is therefore dismissed.
Issue
7The sole issue before the Commission is whether it has jurisdiction to continue with the appeal and release a decision once the appellant is no longer a police officer.
Analysis
8A similar situation arose and was dealt with in Mitchell v. Ontario Provincial Police, 2012 ONCPC 17 where the appellant officer retired about one month after the Commission heard his appeal but had not yet rendered its decision. The appellant took the position that he was nevertheless entitled to a decision regardless of his employment status. The Commission rejected that position holding that as Mitchell was no longer a police officer it did not have jurisdiction over the matter.
9In doing so, the Commission followed a number of its previous decisions that concluded that that it has no disciplinary or appellant authority over a former member of a police service. The Commission relied, in part, on the wording of section 90(1) of the PSA which reads as follows.
If at any time after a complaint about the conduct of a police officer is made under this Part and before the complaint is finally disposed of the police officer resigns, no further action shall be taken under this Part in respect of the complaint after the date of the resignation.
10The Commission did not distinguish between situations of resignations versus those of retirements. In Ontario (Provincial Police) v. Rutigliano, 2012 ONCA 484, the court held that discipline proceedings against an officer who retired came to an end by virtue of section 90(1).
11Section 22(1)(f) of the PSA provides that the powers and duties of the Commission include the “hearing and disposing of matters referred to it by boards and appealed to it by police officers and complainants in accordance with Part V.” The appellant is no longer a police officer.
12In McGuiness v. Toronto Police Service, 2018 ONCPC 3 the Commission heard an appeal by an officer but was advised of his retirement before a decision was rendered. The Commission accepted the officer’s position that it no longer had jurisdiction in the matter.
13We see no reason to depart from the reasoning in Mitchell and McGuiness.
ORDER
14The Commission lacks the jurisdiction to continue with this appeal and it is therefore dismissed.
Released: April 29, 2019
_________________________
D. Stephen Jovanovic
_________________________
Jenny Restoule-Mallozzi
_________________________
John Kromkamp