Deputy Chief Uday Jaswal v. Ontario Civilian Police Commission, 2021 ONCPC 6

TRIBUNALS ONTARIO Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO Commission civile de l’Ontario sur la police

2021 ONCPC 6

Date: 05-10-2021

In the matter of a hearing pursuant to section 25 of the Police Services Act, R.S.O. 1990, c. P.15, as amended

Between:

Deputy Chief Uday Jaswal

Applicant

and

Ontario Civilian Police Commission

Respondent

MOTION DECISION

Panel:

D. Stephen Jovanovic, Associate Chair

Appearances:

Ari Goldkind, counsel for Deputy Chief Uday Jaswal

Anthony Moustacalis and Christen Cole, counsel for the Ontario Civilian Police Commission

Paul Champ, counsel for Jennifer Van Der Zander

Shawn Cleroux, counsel for the Ottawa Police Service

Place and date(s) of hearing:

By videoconference April 6, 8 and 9, 2021

Introduction

1The applicant, a Deputy Chief with the Ottawa Police Service (the OPS), was the subject of an investigation by the Commission pursuant to s. 25 of the Police Services Act (the PSA). He was eventually served with a Notice of Hearing setting out six counts of alleged misconduct under the PSA. Counts 1, 2 and 3 relate to his interactions with Jennifer Van Der Zander, a civilian employee with the OPS, between June 16, 2015 and January 31, 2019.

2This decision deals with a motion brought by the applicant for disclosure and production of the following:

• The personnel file for Ms. Van Der Zander;
• The application file compiled by the OPS when Ms. Van Der Zander applied to become an officer with the OPS;
• Notes and emails of June 14, 2019 by Inspector David Zackrias, a potential defence witness;
• Notes and emails of Ms. Deborah Aarenau of the OPS Office of Respect, Conduct and Values, related to complaints the OPS received form Ms. Van Der Zander, her husband Peter Van Der Zander, updates by Inspector Zackrias and updates she provided to any person, including Interim Chief Steve Bell;
• Notes and emails of the Interim Chief related to telephone conversations he had with Commission investigators and who may be called as a witness by the defence and;
• The Background Check documents for Ms. Van Der Zander when she applied to become an officer with the OPS.

3Counsel for Ms. Van Der Zander and the OPS participated in the motion to the extent of making submissions on behalf of their respective clients who have obvious interests in the outcome of the motion.

4The applicant is charged with one count of Insubordination and two counts of Discreditable Conduct pursuant to the Code of Conduct, O. Reg. 268/10 under the PSA. The Insubordination charge alleges that the applicant breached the OPS Respectful Workplace Policy and that his communications with Ms. Van Der Zander, both by text and in person, constituted sexual harassment. There is also an allegation that he touched Ms. Van Der Zander without her consent on one occasion in the stomach and rib area. The allegations in support of the Discreditable Conduct charge under Count 2 relate to the same communications and touching incident as in Count 1. The allegations in support of the Discreditable Conduct charge under Count 3 relate to the same touching incident as in the first two counts.

5In response to the motion, the Commission filed an affidavit of Ian Scott, one of its investigative counsel. The OPS filed an affidavit by Inspector Mbakolo. Both individuals were cross-examined on their affidavits.

Analysis

6The first issue to be considered is whether I have the authority to order the production of documents from third parties. The applicant, in his factum cites s. 83(5) of the PSA and the Commission’s rule 13.2 on disclosure. In my view, neither assists the applicant. S. 83(5), applies to Part V Complaints & Disciplinary proceedings, not to hearings arising from s. 25 investigations. In any event, it simply states that a police officer shall be given the opportunity to “examine any physical or documentary evidence that will be produced or any report whose contents will be given in evidence.” The Commission counsel has indicated that all such evidence has been provided to the applicant’s counsel.

7Rule 13.2 provides that the “…Commission may order any party to provide such further particulars as the Commission considers necessary for a full and satisfactory understanding of the issues in the proceeding.” The OPS is not a party to this proceeding.

8The applicant relies on the decision in Cardi v. Peel Regional Police Service, 2013 ONCPC 10 at para. 56 which states that in police discipline matters “…a police officer must be given an opportunity to know the case to be met, to have an opportunity to test the evidence against him or her, and to provide evidence on his or her own behalf…” That decision does not deal with orders for production from third parties.

9There are two decisions that would appear to suggest that I do not have the authority to order third party production. Gauthier (Re), 2015 ONCPC 3 was a s. 25 hearing where the panel was asked to order the production of emails from a non-party. At para. 48 the panel wrote: “It is beyond the Panel’s ability to order the release of the private property of a potential witness at the hearing.”

10In Jocko v. Criminal Injuries Compensation Board, 2009 CanLII 65807 (ON SCDC) the Divisional Court dealt with an application for judicial review by applicants in a Board proceeding who sought documents from police officers who investigated various crimes. The Board had noted that the summons served on each officer required them to bring the materials sought to the hearing but that the Board “did not have the power to order disclosure of such documents prior to the hearing.” The Divisional Court agreed writing the following:

15. In any event, the Board lacks the authority to compel police officers to provide the materials requested by the applicants. The only power to require production of documents and information possessed by the Board is found in its power to summons. That power is found in Rule 8.1(1) of the Criminal Injuries Compensation Board Rules of Procedure, which provides:

The Board may summon any person to attend an oral or electronic hearing, give evidence on oath or affirmation and produce in evidence at the hearing such documents or other things as are specified in the summons. A summons shall be signed by the Chair or the Chair’s delegate.

16. In our view, no broader power can be found in the Statutory Powers Procedure Act. The applicant’s argued that s. 5.4(1) of the [SPPA] provides the Board with the authority to compel police officers to make disclosure of the materials they seek in advance of their hearings.

17. In our view, s. 5.4(1) does not provide the Board with the power to order the disclosure sought by the applicants. Section 5.4(1) is designed to require that parties to a tribunal hearing exchange pertinent information before their hearing. It is designed for adversarial hearings. Nothing in that provision gives jurisdiction to a Board to make orders compelling third parties or witnesses to make pre-hearing disclosure of information or documents to a party to a proceeding before the Board. The sole power of the Board to compel a witness to provide information or produce documents is the power to summons.

18. In short, the Board cannot provide to the applicants the documents they seek because it does not have them, has no power to get them and should not be responsible for getting them in any event.

11Rule 13.0 of the Commission’s rules, under the heading Disclosure, has subsections 13.1 through to 13.10. Nowhere in that rule is there any provision for the ordering of productions from third parties.

12However, Mr. Moustacalis, the prosecutor, has taken the position that I do have the authority to order third party production, despite the absence of any rule that would specifically allow me to do so. He relies on rule 3, with the heading Commission Powers, the decision in Ontario (Human Rights Commission) v. Dofasco Inc, 2001 CanLII 2554 (ON CA) and various sections of the Statutory Powers Procedure Act, R.S.O.1990, c. S. 22 (the SPPA).

13There are two sub-sections to rule 3 that are possibly relevant to this motion. Rule 3.3 provides, in part, that the Commission may make such rulings and orders as it deems necessary for the proper functioning of the Commission proceedings and processes. Rule 3.5 provides that where matters are not covered by the rules, the practice will be decided by the Commission as the Commission considers just.

14S. 2 of the SPPA provides that it and a tribunal’s rules shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits. S. 5.4(1) provides that if the tribunal has rules dealing with disclosure, it may make orders for any other form of disclosure. S. 12(1)(a) and (b) gives a tribunal the power to require any person, by summons, to appear and give evidence at a hearing or to produce documents at the hearing. Finally, section 23 allows a tribunal to make such orders as it considers proper to prevent abuse of its processes.

15In Dofasco, a complainant before a Board of Inquiry dealing with her complaint under the Human Rights Code, R.S.O. 1990, c. H. 19 was ordered to provide her consent to the disclosure of her files from various treating physicians and other entities which, once produced, would be made available to counsel for Dofasco, the respondent in the Code proceeding. Given the type of order made, this case was not in fact dealing with an order for production made against a third party.

16At para. 51 of the decision, Morden J.A. wrote the following:

It is generally agreed that if documents under the control of non-parties are important to the fair and accurate resolution of issues, it is preferable that they be produced before the hearing to avoid almost inevitable adjournments if they are produced for the first time at the hearing (see s. 39(4) of the Human Rights Code) and to enable each side to prepare its case more effectively. In this regard, s. 2 of the Statutory Powers Procedure Act (which provides that the Act and rules made under it “shall be liberally construed to secure the most expeditious and cost-effective determination of every proceeding on its merits”) may be of assistance in interpreting s. 5.4(1)(e) in a way that would support pre-hearing disclosure from third parties. This point was not argued and I express no final opinion on it [emphasis added].

17This comment made by Morden J.A. is clearly obiter because the case before him did not deal with third party production, nor as he indicates, was the point he was making even argued.

18I am prepared for the purposes of this motion to accept that I have jurisdiction to consider the applicant’s request for disclosure and production of third party records. If I were to dismiss the motion on the basis that I did not have the authority to make such an order, the applicant could simply serve a summons on the appropriate person with the OPS requiring him or her to appear at the hearing with the requested materials. In fact, given that the hearing has commenced, he could have already done so and then the parties would be in the position of making the same submissions they have already made, i.e., over the relevance of the requested documents. The applicant, if successful, would then likely have requested an adjournment in order to review the documents. That would not be a just, expeditious or cost-effective way to manage this proceeding.

19The parties agree that the disclosure principles set out in R. v. Stinchcombe, [1991] 3 S.C.R. 668 do not apply to a hearing before the Commission. This has been the position taken by the Commission in a number of past decisions: see for example Mulligan (No. 2) v. Ontario Provincial Police, 2018 ONCPC 5. The question then is what principles should be applied in considering if an order should be made directing the OPS to produce the documents sought by the applicant.

20Before answering that question, the exact nature of the applicant’s production request should be clarified. In his motion, he requests an order for the production and disclosure of the personnel and application file of Ms. Van Der Zander “held in the possession” of the OPS as well as additional disclosure form the OPS. In his factum, the applicant submits that with respect to the two files relating to Ms. Van der Zander, he should not be required to apply for their production under the third party production rules because the files had been in the possession of the Commission investigators and returned to the OPS.

21It is clear from the affidavit of Mr. Scott, filed by the Commission on this motion, and his cross-examination, that the files were reviewed twice by Commission investigators after a summons was served on the OPS, but that they are not in the possession of the Commission. The Commission cannot produce that which it does not possess. There is no evidence before me that the Commission has in its possession any of the documents requested by the applicant and the Commission has denied that it has the documents. Accordingly, I see no basis for making any order for disclosure for additional documents against the Commission.

22The Commission submits that I should follow the principles set out in R. v. Connor, [1991] 4 S.C.R. and as adopted by the tribunal in Law Society of Ontario v. Odeleye, 2020 ONLSTH 114 and Law Society of Ontario v. Odeleye, 2019 ONLSTH 42 for screening the requested documents and protecting the privacy rights of third parties. The OPS submits that the Commission has in the past used the test in West Park Hospital v. Ontario Nurses’ Assn., [1993] OLAA No. 12 in deciding contested disclosure motions: see Durham Regional Police Association v. Durham Regional Police Services Board, 2014 ONCPC 1161; Grills v. Ontario Provincial Police Service, 2015 ONCPC 2 and; Mulligan (No. 2) v. Ontario Provincial Police, 2018 ONCPC 5.

23The test in West Park is as follows:

First, the information must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the Board of Arbitration should be satisfied that the information is not being requested as a “fishing expedition.” Fourth, there must be a clear nexus between the information being requested and the positions in dispute at the hearing.

24In the 2019 Odeleye decision, the Law Society Tribunal noted that its rules did not provide for specific procedures or tests to be applied on motions for production of documents from third parties so it “adopted by analogy the rules that are prescribed in the criminal law context.” Specifically, the Tribunal chose the two-part test in O’Connor. The first part of the test required that the party seeking the records must establish the likely relevance of the documents to the matters in issue in the proceeding. If this initial threshold is met, then the records should be made available for review by the panel so that it may balance the rights of the requestor to give full answer and defence to professional misconduct allegations against the privacy interests of others.

25The SPPA allows a tribunal to determine its own procedures and practices and to make orders with respect to those procedures and practices. In my view, the four part test set out in West Park and previously adopted by the Commission and other tribunals: see 11479 v. Registrar, 2019 CanLII 83887 (ON LAT), strikes an appropriate balance between the interests of all concerned and should be applied in this matter.

26The first part of the West Park test requires an assessment as to whether the documents requested are arguably relevant. The OPS has provided all of the documents for my review which was the most practical way to consider if they are arguably relevant. It is the position of the OPS that the personnel and application files should not be disclosed, but it takes no position with respect to the other information sought, subject to being allowed to redact parts of the information to maintain privacy concerns.

27I will deal first with the personnel file and application file. These files were reviewed by Mr. Scott and Mr. Lockwood in Ottawa on two occasions, having served a summons on the OPS for their production. In Mr. Scott’s affidavit of March 5, 2021 he stated that it was agreed (with the OPS) that they would have access to the files for the sole purpose of looking to see if there was any evidence of interference or impropriety by the applicant with respect to Ms. Van Der Zander’s application to become an officer with the OPS.

28Mr. Scott was extensively cross-examined by the applicant’s counsel on his affidavit. He made no notes of the contents of the files as he found nothing relevant to his purpose in reviewing the files. The applicant submits that the very fact that the files were reviewed twice somehow confirms their relevance. I disagree. It was not possible for Mr. Scott or any other investigator to determine if there were any relevant documents until after they reviewed the files.

29The applicant submits that, while the Commission may not be relying on the files, the information is pertinent to the cross-examinations of Ms. Van Der Zander and Mr. Van Der Zander, if he is called to testify. He further submits that the files “play a more nuanced role in this matter” because they establish a pattern of behaviour where Ms. Van Der Zander blames others when she doesn’t get her way and she had relationship building issues that would affect her and/or her husband’s credibility.

30In my view, the applicant has failed to establish the relevance of the personnel file and has not specified what documents he believes are arguably relevant to any issue in this matter. General concerns about the credibility of Ms. Van Der Zander are insufficient to establish relevance of unidentified documents in the personnel file. I found no documents that were arguably relevant.

31The situation is the same for the application file. He does not point to any particular document in the file. In fact, he states that he “should be permitted to examine those contents in order to be placed on equal footing with the OCPC investigators.” In my view, he has not met most, if not all, of the tests in West Park in that he has not specified the documents he requests, so he has not established that what he is requesting is arguably relevant. As he hasn’t specified what documents he is requesting, he is engaged in a fishing expedition. It would be fair to assume that the applicant would have some knowledge about the contents of an application file generally, yet he cannot specify what documents he believes are arguably relevant.

32The applicant requests the disclosure and production of emails or notes from Interim Chief Steve Bell about briefings or updates he may have provided the Ottawa Police Services Board as he may be called as a witness by the defence. I have reviewed the file provided by the OPS and do not find that any of the material is arguably relevant to the issues in this matter. However, several pages are heavily redacted and I cannot determine the arguable relevance of the contents. I would request that Mr. Cleroux, counsel for the OPS advise me as to the nature of the redactions and reserve my decision on the production of the documents requested until he does so.

33Inspector David Zackrias will be a witness for the applicant who as requested the production of his notes and emails of June 14, 2019 “related to this matter.” Having reviewed the file provided by the OPS, I am satisfied that the notes and emails are arguably relevant and that the West Park test for their production has been met.

34The applicant’s final request is for the notes and emails of Ms. Aarenau relating to complaints she received from Ms. Van Der Zander, her husband, and updates she may have provided to Inspector Zackrias. Four pages of notes taken by Ms. Aarneau have been provided to me. There are references in the notes to what appears to be conversations she had with either Ms. Van Der Zander or her husband about the former’s rejection for an officer position with the OPS. Although, her rejection is not a matter that is the subject of this proceeding, given the applicant’s submission that Mr. Van Der Zander’s communications with the OPS following the rejection may have amounted to extortion and that this may be some motivation on the part of Ms. Van Der Zander in this matter, I do find that the notes are arguably relevant. There are no emails or updates provided to Inspector Zackrias in the file provided to me.

ORDER

35The applicant’s motion for production of documents from the Commission is dismissed. The applicant’s motion for production of the personnel and application files of Ms. Van Der Zander is dismissed. The motion for production of the emails of June 14, 2019 of Inspector Zackrias and the notes of Ms. Aarneau is allowed. The motion for the production of the emails and notes of Interim Chief Bell is dismissed, subject to correspondence from counsel for the OPS advising as to the nature of the redactions in the material provided. The OPS may review the materials ordered produced for any further redactions for privacy concerns, but it must advise me of the specific redactions.