TRIBUNALS ONTARIO
Ontario Civilian Police Commission
TRIBUNAUX DÉCISIONNELS ONTARIO
Commission civile de l’Ontario sur la police
File: 23-ADJ-012
Between:
Police Constable David Vogelzang
Applicant
And
Ontario Provincial Police
Respondent
Motion Decision
Adjudicator: L. Hodgson
Participants:
For the applicant: M. Ertel, counsel
For the respondent: C. Diana, counsel
Decision on Jurisdiction - Motion In Writing
introduction
The applicant seeks to appeal the penalty of a two-year demotion to Second Class Constable that was imposed following his conviction for five counts of Discreditable Conduct under the Police Services Act, R.S.O. 1990, c. P.15 (PSA). At issue is whether the applicant filed his Notice of Appeal within the thirty-day time period set out in the PSA and, if not, whether the Commission has jurisdiction to hear his appeal.
The Hearing Officer delivered the penalty decision to the parties on May 23, 2023. The Hearing Officer posted a redacted version of the decision on the OPP intranet on June 9, 2023. On June 29, 2023, the Appellant served a Notice of Appeal on the respondent and the Commission.
The applicant contends that the thirty-day appeal period began when the redacted decision was posted by the Hearing Officer. In the alternative, the applicant submits that the Commission has jurisdiction to extend time to file the Notice of Appeal.
It is the respondent’s position that, as the applicant received the decision on May 23, 2023, the Notice of Appeal was filed outside the statutory timeline and the Commission has no jurisdiction to hear the appeal nor to extend time to appeal.
For the reasons that follow, I find that the applicant did not file his Notice of Appeal within the timeline set out in subsection 87(1) of the PSA. Further, the Commission has no jurisdiction to extend the time to appeal.
Analysis
Issue 1: Was the ApPlicant’s NOTICE OF ApPEal filed Within the TImeline Prescribed by the [PSA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p15/latest/rso-1990-c-p15.html)?
The parties agree that they received the Hearing Officer’s decision via email on May 23, 2023. The decision itself indicates it was “electronically delivered” on this date.
The applicant also asserts that “a public redacted version was only released on May 30, 2023”. The respondent, providing more detail, states that on May 30, 2023, the Hearing Officer, on his own initiative, emailed the parties. He requested that they review his proposed redactions (regarding the applicant’s medical information) to the decision prior to the Hearing Officer posting it on the ‘OPP intranet’. According to the respondent, the Hearing Officer posted the redacted decision on June 9, 2023, after receiving no input from counsel with respect to redactions.
The parties appear to disagree with respect to what date the redacted decision was posted. In my view, this is ultimately of no consequence.
The PSA sets out the timeline for service of the Notice of Appeal as follows:
s. 87 (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. [Emphasis added]
The posting date of the redacted decision is not relevant as the PSA clearly provides the Notice of Appeal is to be filed within thirty days of the party receiving notice of the decision. As the applicant clearly received notice of the decision on May 23, 2023, and didn’t file his Notice of Appeal until June 29, 2023, he did not file in accordance with ss 87(1).
The language of this subsection is without ambiguity. The applicant had thirty days from receipt of notice of the decision to appeal. The applicant received the full decision on May 23, 2023, and had until June 22, 2023, to appeal. He did not file his notice within this time period. The applicant has not provided any basis for the Commission to determine that he received notice of the decision at a later date. The fact that the Hearing Officer subsequently posted the decision with redactions does not change the appeal timeline stipulated in the PSA. There was no evidence that any substantive changes were made to the May 23, 2023, decision such that the appeal timeline would have restarted.
The applicant did not file the Notice of Appeal within thirty days of receiving notice of the decision as required by the PSA.
Issue 2: Does the Commission Have Jurisdiction to Extend the TIme to File?
The applicant submits that if his Notice was filed outside the prescribed time period, the Commission should grant an extension of time to file. He notes there is no prejudice to the respondent, arguable grounds of appeal and a clear intention to appeal. He contends the Commission has an implicit authority to extend the time to appeal.
The Respondent acknowledges it is not prejudiced by the delay. In their submission, however, this Commission is bound by previous authority and simply has no jurisdiction to extend the thirty-day limitation period set out in the PSA.
I agree with the respondent. As noted by the Commission in Johnson v. The City of Kawartha Lakes Police Service, 2012 ONCPC 9 at para. 42:
A previous version of the Act granted discretion to the Commission to consider an extension of the time provided for submitting a notice of appeal: see Police Services Act R.S.O. 1990, c. P.15, section 63(8). This section was repealed with the proclamation of section 35 of the Police Services Amendment Act, 1997. The amendments introduced in 1997, expressly removed the Commission’s discretion to extend the time for filing appeals.
This Commission has clearly and repeatedly held that it has no jurisdiction to extend the limitation period under section 87(1) of the PSA. See for example, Needham v. Toronto Police Service, 2010 ONCPC 4, where counsel for the appellant inadvertently filed the Notice of Appeal a few days past the 30-day deadline. See also: Holder v Ontario (Provincial Police), 2002 ONCPC 6, Kerr v. Bennett and Belleville Police Service, 2009 ONCPC 12, Ryan v. Ramos, 2018 ONCPC 17 at para 8.
The statutory right of appeal is circumscribed by a 30-day time limit and the Commission simply has no authority to extend that limitation period. Contrary to the appellant’s assertions Royal Newfoundland Constabulary Police Complaints Commission v. Morgan, 2012 NLCA 74 is not applicable. This case is from a different jurisdiction and applies different legislation to a very different fact scenario.
I recognize the consequences of this limitation and understand the importance of professional misconduct issues being resolved on their merits. The applicant’s right of appeal is, however, a statutory right under the PSA. The legislature made a deliberate choice to promote finality in these proceedings by removing the Commission’s authority to extend the 30-day deadline. The Commission is bound by this. Under the current PSA, there is simply no provision to grant relief from strict compliance with the statute.
The applicant did not serve his Notice of Appeal in compliance with ss.87(1) and the time to appeal cannot be extended. As a result, the Commission has no jurisdiction to hear this appeal and will take no further steps in relation to it.
ORDER
- The applicant’s motion is dismissed on the basis that the Commission lacks jurisdiction over the applicant’s appeal.
DATED at Toronto: November 10, 2023
Laura Hodgson, Vice-Chair