Corrigan v. The Ontario Provincial Police, 2022 ONCPC 2

TRIBUNALS ONTARIO

Ontario Civilian Police Commission

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

Citation: Corrigan v. The Ontario Provincial Police, 2022 ONCPC 02 Date: 2022-02-10 File: 20-ADJ-011

Between:

Cst. Kathleen Corrigan Appellant

And

Ontario Provincial Police Respondent

Motion Decision

Adjudicator: Laura Hodgson, Vice Chair

Participants: For the appellant: Self-represented For the respondent: B. Whitehead, counsel

Heard electronically on January 24, 2022

Introduction

1The appellant appealed the Hearing Officer’s finding that she committed misconduct and the penalty of demotion to the rank of second-class Constable for one year. The appellant did not attend her disciplinary hearing and it proceeded in her absence.

2The appellant has not yet perfected the appeal. The respondent brought a motion in writing requesting that the appeal be dismissed for failure to perfect. The Commission decided to hear the motion electronically given that there appeared to be a dispute regarding the availability of transcripts.

3At the electronic hearing, the appellant chose to not give any evidence and indicated that she was relying on prior documentation provided to the Commission. There is no evidence before the Commission demonstrating that the appellant has taken any steps to obtain transcripts or perfect the appeal since March 2021. Further, no additional evidence was provided to establish the recordings are incapable of transcription.

4For the reasons that follow, the Commission grants the motion and dismisses the appeal.

Preliminary Costs Issue

5In written submissions to the Commission following the hearing of this matter, the appellant reiterated a request for costs against the respondent. The onus is on the appellant to provide submissions and evidence as to why she believes the respondent has acted unreasonably, frivolously, vexatiously, or in bad faith (Rule 26 of the Ontario Police Commission Rules of Practice). The appellant has pointed to no conduct that would support such a finding, and thus the request is denied.

Factual Overview

6The procedural history was set out by the Commission in the November 12, 2021 decision. For ease of reference it is repeated below:

i) The appellant filed a Notice of Appeal from the finding of misconduct and penalty on October 6, 2020. At that time, the disposition and penalty had been communicated to the appellant in writing by the Hearing Officer. Full reasons were issued on February 5, 2021.

ii) As early as October 27, 2020, the Commission advised the appellant that confirmation that transcripts were ordered was required. On March 5, 2021 the appellant forwarded the Commission a portion of an email exchange, presumably with a court reporter. In that email exchange a court reporter indicated that she cannot complete the transcript “based on the unidentified audio” but provides the appellant with a list of other court reporters to contact.

iii) Three Pre-Hearing Conferences (PHC) were held and are documented in Pre-Hearing Conference Reports. The first scheduled PHC did not proceed because the respondent did not join the call. At the next PHC, on March 22, 2021, the appellant’s difficulty obtaining the transcripts was discussed. According to the PHC Report the respondent agreed to ‘look into both the issue of obtaining a transcript and ensuring that the full Record would be filed’. Parties were advised that the dates for delivery of factums and a hearing date would be set at the next PHC.

iv) The PHC Report from April 26, 2021 reiterates that the appellant was having issues ‘moving forward with the appeal’. She had indicated that a certified copy of the transcript could not be prepared due to the quality of the recording. The respondent advised that she was ‘unsuccessful’ with respect to her inquiries to obtain a transcript on behalf of the appellant. At this PHC, the appellant also indicated that she could not properly prepare her appeal without a transcript. In an effort to resolve the issue, the PHC adjudicator asked the respondent to forward the recording so the Commission could determine its audibility. Another PHC was scheduled for May 31, 2021.

v) On the morning of the May 31, 2021 PHC the appellant emailed the Commission stating, “Unfortunately I am unable to participate in the conference as scheduled today. Please advise when a copy of the transcript of the hearing will be provided.” No reason for her non-attendance was provided. Commission staff advised the appellant that the PHC would be proceeding. The PHC Report from May 31, 2021, indicates that the adjudicator received a copy of the audio recording from the respondent but did not have the proper software to listen to it. According to the Report, an employee of the respondent, who was responsible for audio recordings, indicated that, in her view, there were no issues with the hearing recordings. At that PHC, the respondent indicated that she would be seeking instructions to bring a motion to dismiss the appeal. The PHC ordered that the respondent’s motion be provided by June 30, 2021 and proceed by way of written submissions.

vi) On June 5, 2021, the appellant wrote the Commission indicating that, in her view, she has complied with the Ontario Police Commission Rules of Practice (the Rules). She stated that transcripts are not available, “The authorized court transcriptionist who is also a certified court reporter could not complete nor certify the transcript as the audio format does not identify the persons providing the oral evidence at the disciplinary hearing nor is it formatted for transcribing”. The appellant also took issue with the PHC Reports indicating, “The Commission controls the narrative of the prehearing conferences reports.” The appellant offered no explanation for her absence from the mandatory, May 31, 2021, PHC.

vii) On September 21, 2021, almost three months after the deadline set, the respondent filed a motion to dismiss the appeal as abandoned. The motion materials note that the appellant has failed to perfect the appeal and reiterated that the respondent found no audio issue with the recording. Further the motion was sought because the appellant failed to attend the May 31, 2021, PHC as required.

viii) The appellant responded to the motion by email on October 19, 2021, indicating that she was relying on the information provided in her June 5, 2021, correspondence (noted above). Additionally, she stated that she has not abandoned the appeal, noted that the respondent did not comply with the timelines in the May 31 PHC order and requested costs pursuant to the Rules.

7Given the dispute regarding the steps taken by the appellant to obtain the transcripts, and also whether the audio recordings are capable of transcription, the Commission converted the hearing of the respondent’s motion from a written hearing to an electronic hearing. As part of its decision, the Commission directed the following:

The appellant is expected to attend and to establish that the transcripts have been ordered from one of the transcription services suggested to her by the court reporter. Alternatively, she should be prepared to establish, with evidence, that the recordings are incapable of transcription. If the respondent is of the view that the recordings can be transcribed, they may wish to provide evidence to that effect.

8At the motion hearing, the respondent called Julia Danes, an adjudicative clerk with the Ontario Provincial Police, as a witness. Ms. Danes noted that she was responsible for the procedural aspects of this matter at the hearing stage. This included scheduling hearing dates, preparing documents and responsibility for audio recordings.

9Ms. Danes reviewed email correspondence between herself and the appellant dated September 29, 2020 in which she outlined to the appellant the process for obtaining transcripts including a link to a list of certified transcriptionists. She also reviewed an email dated October 16, 2020, on which Ms. Danes was included, where counsel for the OPP Association (OPPA) offered to obtain a copy of the transcripts for the appellant. There is no indication that the appellant responded. In a January 2021 email to the appellant, OPPA counsel again offered to order the transcripts. In an email dated February 1, 2021, the appellant replied, “Morning, As the subject matter of the hearing held by the OPP is believed criminal in nature resulting in injury and being appealed on jurisdiction. I will not be responding to a question of evidence.” Perhaps unsurprisingly, there is no indication that the OPPA ordered the transcripts.

10Ms. Danes testified that she was not aware that there was any issue with the appellant ordering transcripts until April 2021 when it was raised at a pre-hearing conference before this Commission. She indicated that she has now listened to the recordings on multiple occasions and determined they are in proper working order. With respect to the appellant’s assertion that the recording can not be transcribed because it is unclear who is speaking, Ms. Danes indicated that, in her view, this is not an issue.

11In cross-examination, the appellant asked Ms. Danes if the Commission had been provided a link to the recordings as had been requested at a previous PHC. Ms. Danes responded that the link had been provided but, to her understanding, could not be opened. As noted above, the Commission did not have the software necessary to access the recordings provided. The appellant did not otherwise challenge evidence regarding the transcripts and called no evidence.

Analysis

12Rule 34.3 of the Rules state that the appellant bears the responsibility for providing the parties and the Commission a copy of portions of the transcript, if any, of the disciplinary hearing upon which the appellant intends to rely. The appellant has indicated that she cannot proceed with her appeal without the transcripts.

13In its November 12, 2021 decision, the Commission indicated that if, following the hearing, the transcripts have not been ordered and the Commission is not satisfied that the recording is incapable of transcription, the appeal will likely be dismissed. Based on the information before it, the Commission finds that the appellant has failed to establish that she has taken the necessary steps to advance the appeal or that she is incapable of doing so because of issues with the available recordings.

14The Ontario Court of Appeal has identified a non-exhaustive list of factors to consider with respect to failure to perfect an appeal in the criminal context: length of delay, explanation for delay, steps taken by the respondent to ensure perfection, effect of delay, significance of issues on appeal and conduct of delinquent party (see R. v. Villanti, 2020 ONCA 436 at 62). In the civil context, the Court has identified similar considerations when determining whether to grant an extension of time to file an appeal:

The governing principle is whether the “justice of the case” requires that an extension be given: Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401, at para. 17; Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. Each case depends on its own circumstances. The relevant considerations include:

a) whether the moving party formed a bona fide intention to seek leave to appeal within the relevant time period;

b) the length of, and explanation for, the delay in filing;

c) any prejudice to the responding party, caused, perpetuated or exacerbated by the delay; and

d) the merits of the proposed appeal. (see Reid v. College of Chiropractors, 2016 ONCA 779, at para. 14)

A similar analysis is applied when courts consider setting aside an administrative order dismissing an appeal for failure to perfect (see Sickinger v. Sickinger, 2017 OCNA 760, at para. 13).

15While the appellant initially attempted to order transcripts after filing her appeal, since that time, she has not showed a bona fide attention to pursue the appeal. For reasons left unexplained, the appellant did not accept the OPPA offer to obtain transcripts. As noted above, the initial court reporter contacted by the appellant could not transcribe the proceedings but provided a list of other court reporters for the appellant to contact. There is no evidence that appellant has made any effort to contact another transcriptionist as suggested by the initial court reporter and as directed by the Commission in its November 12, 2021 decision. Further, there is no indication that the appellant intends to do so.

16The appellant has previously indicated that she cannot proceed without the transcripts yet refuses to take any further steps to obtain them. At the motion hearing, the appellant called no evidence to establish that the recordings are incapable of transcription. The appellant proposed no solutions nor requested additional time to perfect the appeal. In fact, the appellant gave no evidence. The respondent provided unchallenged evidence that the recordings are without issue. This matter is clearly at a standstill.

17In the context of this case, where the appellant has not established, as directed by the Commission, that she is pursuing the appeal diligently and the matter sits idle, the 15-month delay since the filing of the Notice of Appeal is notable. The Commission also notes, and the respondent concedes, that the respondent did not seek to have the motion for dismissal heard in a timely manner.

18With respect to prejudice, there is no specific prejudice to the respondent. The Commission, however, agrees with the respondent that there is some general prejudice to the public interest in the timeliness and effectiveness of the regulation of the profession: see Isaac v. Law Society, 2020 ONLSTA 9). The principles of finality and reviewability require appeals to this Commission to be perfected in a diligent manner.

19When considering the significance of issues or merit of the appellant’s appeal, the Commission notes that the appellant has repeatedly submitted that the respondent’s actions are criminal. The Notice of Appeal states that the appellant seeks an order “for the employer the OPP to stop committing criminal offences(s) that include threatening conduct, obstruct justice, retaliation and intimidation against employees in the workplace and their families that result in fear, injury and suicide(s)”. As noted at the motion hearing, the OCPC has no jurisdiction to make orders of this nature. In the materials before the Commission, the appellant has not identified any general or specific errors of law or fact made by the Hearing Officer. While the Commission carefully considers the right of the appellant to be heard, it has not been established that there is any merit to the appeal.

20The Commission recognizes that the appellant is self-represented and that proceedings of this nature can be challenging. It acknowledges that self-represented parties must be given wider latitude in navigating a tribunal’s procedures. The appellant was, however, given clear notice from the outset that she was required to obtain transcripts. More recently, she was given clear notice that a failure to either obtain transcripts or provide an explanation why that was not possible would likely result in her appeal being dismissed. Moreover, she was offered assistance with perfecting the appeal from the OPPA, which she appears to have declined and/or failed to follow-up with. She was also given clear notice by the Commission that it would expect evidence in support of the appellant’s contention that she could not obtain transcripts. As noted, the respondent called evidence establishing that transcripts may be made from the audio recording, whereas the appellant did not call any evidence or otherwise seriously challenge the respondent’s evidence.

21By filing a Notice of Appeal, the appellant accepted the obligation to diligently advance her appeal in accordance with the Commission’s Rules. She has not done so. The appellant has failed to comply with the rules as required, failed to provide a reasonable or satisfactory explanation why, and has failed to otherwise indicate that anything will change in this regard. The justice of the case weighs against delaying this matter any further. As a result, the appeal will be dismissed.

ORDER

22The respondent’s motion to dismiss the appeal is granted.

23The appellant’s request for costs is denied.