Corrigan v. The Ontario Provincial Police, 2022 ONCPC 5

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 05

April 4, 2022

File: 20-ADJ-011

Between:

Cst. Kathleen Corrigan Applicant

-and-

Ontario Provincial Police Respondent

DECISION ON JURISDICTION

Adjudicator: E. Morton, Vice Chair

Appearances: K. Corrigan, self-represented B. Whitehead, counsel and R. Ng, student-at-law for the Ontario Provincial Police E. Owens for the Constitutional Law Branch, Ministry of the Attorney General

Held: In Writing

Overview

1The applicant, Constable Kathleen Corrigan, was found guilty of misconduct under the Police Services Act (“PSA”). She filed a notice of appeal from the finding of misconduct and penalty with the Commission on October 6, 2020. In a decision dated February 10, 2022 (“Decision”), the Commission dismissed the appeal following a motion brought by the respondent to dismiss due to the applicant’s failure to perfect the appeal.

2On February 15, 2022 the applicant filed, and served on the respondent, a document titled “Notice of Constitutional Question” (“Notice”). Following a pre-hearing conference on March 1, 2022 the Commission ordered the parties to provide written submissions on the issue of whether the Commission has jurisdiction to take any steps in relation to the Notice.

3For the reasons that follow, the Commission holds it does not have jurisdiction to consider or take steps with the respect to the Notice. The Commission will take no further steps in respect of the Notice following the release of these reasons.

Issues

i. Is the Commission’s Decision a final order?

ii. Does the Commission have jurisdiction to consider the Notice filed in respect of the Decision?

iii. Does the applicant have other remedies to seek review of the Decision?

Procedural History

4The applicant filed a notice of appeal in accordance with s. 87(1) of the PSA and Rule 33.1 of the Ontario Civilian Police Commission Rules of Practice, rev’d 2014 (“the Rules”). The applicant was required by Rule 33.4 to order transcripts to perfect the appeal. In a series of communications and orders made following pre-hearing conferences, beginning as early October 27, 2020, the Commission advised the applicant that she would need to order transcripts and provide confirmation of doing so in order to proceed with her appeal.

5On March 5, 2021 the applicant advised the Commission a court reporter had indicated she could not complete the transcript due to issues with the identification of speakers on the audio recording. In other communications and statements recorded in pre-hearing conference reports, the applicant maintained the position it was not possible for her to comply with Rule 33.4 as the transcripts could not be produced due to issues the recording.

6The respondent filed a motion to dismiss the appeal as abandoned on September 21, 2021. Given the factual dispute about the applicant’s ability to obtain the transcripts the Commission then made an order that the motion to dismiss was to be heard electronically. The Commission made further directions requiring the applicant to attend and establish either that the transcripts had been ordered or establish with evidence that they are incapable of transcription. The Commission’s November 12, 2021 decision making these procedural orders also made clear the motion could result in the serious remedy of dismissal of the appeal altogether.

7At the motion hearing, the respondent called a witness who gave evidence she had listened to the recordings of the hearings, and they were in working order and capable of transcription. The witness also gave evidence the Ontario Provincial Police Association (“OPPA”) had offered to obtain a copy of the transcripts for the applicant, but the applicant indicated in correspondence dated February 1, 2021 she would not respond to the offer. The applicant did not otherwise challenge the respondent’s evidence and called no evidence on the motion.

8In the Decision, the Commission held the applicant had failed to comply with the rules as required, failed to provide a reasonable or satisfactory explanation why and had not otherwise indicated she would take steps to perfect the appeal. Though the applicant, as a self-represented party, was given wider latitude in navigating the Commission’s procedures, she was given clear notice she was required to obtain transcripts and failed to do so. The Commission considered the fact she declined or did not respond to an offer of assistance from the OPPA to assist with obtaining the transcripts. Overall, the Commission held the “justice of the case weighs against delaying this matter any further” and dismissed the appeal.

9On February 15, 2022 the applicant sent the Notice by email to the Commission’s Registrar. The Notice was sent to a number of other parties, including the respondent. The Notice states the applicant intends to question the constitutional validity of the Commission’s decision to not hold a hearing, contrary to s. 87(2) of the PSA. In the grounds for the notice, the applicant renews complaints about issues related to obtaining the transcripts and the Rule requiring her to order transcripts to perfect the appeal.

Positions of the Parties

10The Commission ordered the applicant and respondent to file written submissions on the issue of whether the Commission has jurisdiction to consider the Notice. In her written submissions the applicant takes the position that Rule 34.3 creates a barrier and has deprived her of a right to an appeal hearing. The applicant states she ordered the transcripts but they could not be obtained due to issues with the recordings. She states that without an appeal hearing, there is no route to appeal to the Divisional Court or seek judicial review. The applicant further states the Commission can review the decision dismissing the appeal under s. 21.2 of the Statutory Powers Procedure Act (the “SPPA”). The applicant also filed a document titled “An Applicant’s Guide to Judicial Review” which addresses the bases and procedures for an applicant to seek judicial review or reconsideration of decisions of the Human Rights Tribunal of Ontario.

11The respondent, along with the counsel from the Attorney General of Ontario’s Constitutional Law Branch, submits the Decision dismissing the appeal is a final order. If the applicant wishes to challenge the Decision, she must seek relief in the courts either by way of s. 88(1) of the PSA or s. 2(1) of the Judicial Review Procedure Act. They submit that the Commission itself is now functus officio with respect to the Decision. Finally, the respondents submit there is no power for the Commission to reconsider the Decision under 21.2 of the SPPA. The respondent submits that, as the Notice cannot not commence a new proceeding on its own, there is no proceeding for the Commission to dismiss.

Analysis

i. The Decision is a Final Decision

12The applicant has submitted she has no right of appeal to the Divisional Court or to bring an application for judicial review as there was no appeal hearing as provided by s. 87(3) of the PSA. However, tribunals do have the authority in certain circumstances to dispose of matters without holding a hearing on the merits.

13As the respondent submits, the appropriate analogy is a Rule 24.01 motion to dismiss an action for delay under the Rules of Civil Procedure. If the motion is granted, the action is finally over even though there has not been a hearing on its merits.

14The Decision had the effect of finally ending the appeal proceeding. The fact this final decision was made as the result of a motion having been brought, and without a hearing of the appeal on its merits, does not alter its fundamental character as a final decision.

ii. The Commission has no Jurisdiction to Revisit the Decision or Consider the Notice

15It is a general rule that, absent express or implied authority to do so, a tribunal cannot revisit a final decision in respect of a matter that has been made in accordance with its enabling statute. For the reasons given above, I have determined that the Decision was final. As a result, the Commission has no jurisdiction to revisit or take further steps in respect of this decision other than its very limited implied authority to do so. For instance, the Commission has the implied authority to amend or correct typographical errors. That is not what is being asked of it here. The Commission has no jurisdiction to consider the submissions or issues raised in the Notice as it has not bee served and filed in relation to a live proceeding. There is simply no action the Commission can take in respect of the Notice.

16First, the Commission has no explicit statutory jurisdiction to reconsider its decisions. The Commission has not made rules to vary its own decisions or orders and has no power to do so. Section 21.2 of the SPPA provides that a tribunal may, if it considers it advisable and if its rules made under s. 25.1 of the SPPA deal with the matter, review its own decisions or orders, and confirm, vary, suspend, or cancel the decision or order. The Commission’s Rules do not include a s. 21.2 reconsideration/review power. Nor does the PSA. The Commission therefore has no authority to reconsider the February 10, 2022 decision by way of s. 21.2.

17Second, the Commission is now functus offico in respect of the February 10, 2022 decision. The doctrine of functus officio means that, when a tribunal has made a final decision, it cannot revisit that decision because it has changed its mind, received new information or made an error within its own jurisdiction: Chandler v. Alberta Association of Architects, [1989] 2 SCR 868; Stanley v. Officer of the Independent Police Review Director, 2020 ONCA 252 at para. 46. As noted above, there are limited exceptions to this rule to permit tribunals to amend decisions for minor errors or “slips”: Chandler at p. 861. These exceptions do not permit a full revisiting of the fairness of a decision or constitutionality of the Rules related to appeals before the Commission. As the Commission has finally made its Decision dismissing the appeal for delay, the Commission is functus and cannot reconsider the decision based on the arguments or issues raised in the Notice.

18Third, there is currently no “proceeding” before the Commission. The appeal has been dismissed. It is settled law that a Notice of Constitutional Question is not an originating process and cannot itself start a “proceeding” for a court or tribunal to take steps in respect of. The function of a NOCQ as required by s. 109 of the Courts of Justice Act is, as its names suggests, only intended to give notice of a parties intent to challenge the constitutionality of a law (Courts of Justice Act, s. 109; Ontario v. Adamson Barbeque Limited and Skelly, 2021 ONSC 4660 at paras. 38-39; Howard v. Attorney General of Canada, 2019 ONCA 351 at para. 1).

19The Notice does not initiate a proceeding and does not function to renew or resurrect the appeal brought by the applicant under Part V of the PSA. It would have been open to the applicant to have served the Notice on the required parties in the context of the appeal proceeding, initiated by the notice of appeal filed October 26, 2021, if she wished to challenge the constitutionality of the PSA provisions or Commission Rules governing appeal proceedings. However, now that the Commission has decided finally to dismiss the appeal, there is no proceeding in relation to which a NOCQ may be filed.

20In its written submissions the respondent addresses the application of s. 4.6 of the SPPA, which permits a tribunal to dismiss a proceeding without a hearing where certain pre-conditions are met. The respondent submits s. 4.6 cannot apply here as the Notice does not originate a proceeding, and there is thus no “proceeding” to dismiss.

21I found this submission to be somewhat confusing. While the Commission agrees there is no “proceeding” to dismiss here, that does not deprive the Commission of the authority or duty to adjudicate disputes that are brought to it. In my view, if anything, s. 4.6 of the SPPA makes it clear that where the Commission does not have jurisdiction over a matter and wishes dismiss it on that basis, it must provide notice to the parties, consider their submissions and provide reasons for its decision. In this case the appellant has filed a document that appears to ask that the Commission to grant certain relief. I do not see how, if the Commission finds as it has here that it has no jurisdiction over the matter, it cannot give reasons for its decision, particularly to a self-represented party.

22In any event, s. 4.6 does not apply here. The Commission decided to hold a written motion hearing on the issue of jurisdiction. Both parties had an opportunity to make submissions. The order here is not made under s. 4.6 of the SPPA, and the Commission will give reasons for its decision.

iii. The Applicant can Apply for Judicial Review of the Decision

23The applicant has a possible route to review the Decision to dismiss her appeal. As the Decision was final, the applicant may bring an application for judicial review under s. 2 of the Judicial Review Procedure Act (the “JRPA”), which provides:

On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

24The applicant would have been barred from seeking this route of review if the decision under discussion was an interim, or interlocutory, order. However, since the Decision finally disposed of her appeal to the Commission under s. 87 of the PSA, the applicant may seek judicial review.

25I would note that under the JRPA a party is required to bring an application within 30 days of the decision that they wish to challenge being made, although the Divisional Court has the discretion to extend the time if “it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay” (s. 5(2)).

26The respondent also raises the option of the applicant seeking an appeal of the Commission’s decision to the Divisional Court under s. 88(1) of the PSA. It is not clear to me how an appeal under that section of the PSA would be available to the applicant given that s. 88(1) appears to apply to hearings held under ss. 69(9) or 77(7) of the PSA. I will not say anything further about that other than to suggest that the applicant may wish to consider obtaining legal advice if she wishes to challenge the Decision at the Divisional Court.

Order

27The Commission has no jurisdiction to deal with the Notice filed by the applicant on February 15, 2022 and will therefore take no further steps in relation to it.