Hafizi v. The Ottawa Police Service, 2023 ONCPC 11

ONTARIO CIVILIAN POLICE COMMISSION

Safety, Licensing Appeals and Standards Division

COMMISSION CIVILE DE L’ONTARIO SUR LA POLICE

Division de la sécurité, des appels en matière de permis et des normes

Citation: Hafizi v. The Ottawa Police Service, 2023 ONCPC 11

Date: 2023-01-10

File: 22-ADJ-003

Between:

P.C. Ahmad Hafizi

Applicant

And

Ottawa Police Service

Respondent

Motion Decision

Adjudicator: Laura Hodgson

Participants: P. Machado, counsel for the applicant

J. Climie, counsel for the respondent

Motion in Writing

INTRODUCTION

1In November 2018, the applicant pled guilty to misconduct and was demoted for a period of two years. The applicant went on extended sick leave shortly after the imposition of the penalty. He did not appeal from the penalty decision. The implementation of the penalty was the subject of an Ontario Police Arbitration Commission (OPAC) decision in 2021.

2The applicant now brings a motion, under section 78 of the Police Services Act (PSA), for the Commission to vary the penalty or to return the matter to the Hearing Officer for clarification. It is the applicant’s position that the penalty should have been stayed while he was on leave.

3In the respondent’s submission, there is no basis under section 78 of the PSA for the Commission to make the order requested. Further, they submit that the applicant is barred from this motion by the doctrine of issue estoppel.

4For the reasons that follow, the motion is dismissed. The Commission does not have jurisdiction under section 78 of the PSA to vary the penalty decision or to return it to the Hearing Officer. Further, the applicant is precluded from relitigating the same issues that have been decided by an arbitrator at OPAC.

ANALYSIS

1. Does the Commission have the discretion to vary the penalty in these circumstances?

5This is not an appeal pursuant to section 87 of the PSA. It is a motion under section 78 for the Commission to assess and vary a penalty decision that was imposed in 2018. In my view, section 78 of the PSA does not, in the circumstances of this case, permit the Commission to either vary the penalty as requested or to return the matter to the Hearing Officer for clarification.

Penalty Decision and the Applicant’s Leave

6The applicant was charged and pled guilty to two counts of discreditable conduct and one count of insubordination under the Police Services Act. The misconducts relate to an incident that occurred on May 17, 2016. Parties made a joint submission as to penalty. On November 15, 2018, the Hearing Officer accepted the exact wording of the joint submission and sentenced the applicant as follows:

Disposition:

To reflect the seriousness of this offence, and as a general deterrent, it is

the decision of this Tribunal bearing in mind all the evidence before me,

that Police Constable Ahmad Hafizi, badge #1930 for the finding of guilt

on two counts of Discreditable Conduct and one count of Insubordination

he will be demoted from 1st Class Constable to 3rd Class Constable for a

period of 1 year. With the successful completion of his annual

performance appraisal and meeting standards in all his job competencies,

Cst. Hafizi will progress to 2nd Class Constable for a subsequent period of

1 year. Cst. Hafizi will progress to 1st Class Constable with the successful

completion of his annual performance appraisal and meeting standards in

all his job competencies, all in accordance with section 85(1)(c) of the

Police Services Act.

The above penalty is submitted pursuant to the following term/condition:

a) Cst. Hafizi will be expected to participate, and successfully

complete the following training within 30 days of returning to

work:

1. Firearm Storage Training

7As per the decision, on November 15, 2018, the applicant returned to his duties at the rank on 3^rd^ Class Constable. On November 30, 2018, the applicant went on sick leave, then on long term disability and then on Worker’s Compensation. He did not return to work until October 12, 2021. While on leave he continued to be paid at the rank of 3^rd^ Class Constable and had no performance appraisals.

PSA Provisions

8A police officer found to have committed misconduct following a hearing under section 76 of the PSA may appeal to this Commission pursuant to section 87. Section 87 provides that the appeal is an appeal on the record, but the Commission may receive new evidence as it considers just. Moreover, after a hearing the Commission has jurisdiction to confirm, vary or revoke the decision, to substitute its own decision or to order a new hearing. Appellants must appeal the decision within 30 days. There is no provision in the PSA that allows this Commission to extend the time for appealing.

9The applicant fairly acknowledges that he is now barred from appealing the penalty under section 87. He submits, however, that under section 78 of the PSA, the Commission has the power to vary this penalty “to ensure it is implemented as intended” or to return it to the Hearing Officer for clarification. More specifically, he requests that, the Commission order that “Constable Hafizi’s penalty be varied to prevent any further undue hardship, with an order that the penalty should have been stayed until such time as Constable Hafizi was able to return to work and fulfil the terms of his penalty, with any retroactive payment as deemed fit.” In the alternative, the applicant asks that the Commission order that the “financial aspect of the penalty” was satisfied after two years, leaving the requirement of successful performance reviews to be fulfilled and retroactive payment as deemed fit. In the final alternative, it is requested that the matter be returned to the Hearing Officer for “his formal clarification of this matter.”

10As he asked the arbitrator at the OPAC proceedings, the applicant asks the Commission to consider, when interpreting this penalty, two other PSA dispositions (Bond, December 8, 2016, unreported and Ramsay, February 8, 2021, unreported) made by the same Hearing Officer whose penalty is at issue here. The applicant submits that if the Hearing Officer had known that the applicant would be on extended leave, he would have provided, as he did in these two cases, that the penalty was “effective upon the officer’s return to work.”

11The applicant also submits that by refusing to stay the penalty until his return to work the respondent has discriminated against the applicant as a result of his disability (his absence on extended sick leave). He points to numerous cases from the Ontario Human Rights Tribunal to support this position.

12Section 78 grants the Commission broad oversight and enables it to ensure that disciplinary matters initiated by internal complaints are resolved fairly. It reads as follows:

The Commission may, in respect of a complaint made by a chief of police under section 76 or by a board under section 77, at any stage in the complaints process direct the chief of police or board, as the case may be, to deal with the complaint as it specifies or assign the review or investigation of the complaint or the conduct of a hearing in respect of the complaint to a police force other than the police force to which the complaint relates.

13In Rollauer v Federico, 2021 ONSC 512 (Div. Ct.), the court noted that if the Commission has concerns about the handling of charges under the PSA, section 78 gives it the authority to “step into a complaint” made by the Chief of Police.

14The provision has largely been relied upon to ensure that the procedural protections within the PSA are adhered to. For example, in Durham Regional Police Service v. The Ontario Civilian Police Commission, 2021 ONSC 2065, the Divisional Court confirmed the Commission’s direction under section 78, There, the Commission directed that the police chief withdraw charges against an officer because they had not followed the PSA’s requirement that an investigation be conducted before a notice of hearing was issued.

15Similarly, the Commission has directed chiefs of police under section 78 to hold hearings into matters where the officer has alleged they were subject to “disguised discipline”. For example, in Cameron (no.2) v Durham Regional Police Service, 2018 ONCPC 9, the Commission directed the police chief to hold a hearing into alleged new misconduct to determine if the officer had failed to meet the conditions of a prior penalty: see also Nicholas Macdonell and OPP, 2017 CanLII 37620.

16These cases related either to an ongoing discipline proceeding or circumstances in which the police chief was alleged to have imposed disguised discipline without holding a hearing. In this case, however, there is no longer an active complaint for the Commission to “step into”— no new misconduct or complaint for the Commission to provide direction on. Moreover, unlike Cameron, the wording of the penalty in this matter, is unambiguous and the product of a joint submission between the parties.

17Notably, section 78 states that the Commission may provide direction “at any stage in the complaint process”. There is nothing in the wording of the provision or the jurisprudence granting the Commission authority to revisit a penalty decision based on a change in circumstances in the nature of those alleged here. The Legislature established an appeal mechanism and a 30-day limitation period under section 87. It would create significant uncertainty for parties to discipline proceedings, if section 78 was interpreted such that the Commission could reassess penalties or findings of misconduct based on a change of circumstances.

18Throughout his submissions, the applicant indicates that he is simply asking the Commission to ensure the penalty is “imposed as intended”. Even if section 78 permitted the Commission to vary the conditions imposed, the Commission cannot go behind the reasons for penalty. Nor can the Commission refer to other decisions made by the same Hearing Officer and speculate that he must have intended, but just not articulated, the same result in the circumstances of this case. As noted by the arbitrator, “There is nothing in the Disposition which provides for a deviation from the plain meaning of the words because of unforeseen or changing circumstances which were not known at the time of the imposition of the penalty”.

19I acknowledge that, due to circumstances beyond the applicant’s control, occurring subsequent to the penalty proceedings, the extent of the penalty’s financial impact has increased. Unfortunately, unanticipated consequences may arise subsequent to guilty pleas in both the criminal and administrative context. This often occurs, as it did here, as a result of a change of circumstances at some point after the penalty or sentence is imposed. That, however, does not mean that a court or tribunal has the jurisdiction to hear a challenge to that penalty or sentence that it does not otherwise have. In this case, the Commission simply does not have the authority to revisit and vary the penalty imposed by the Hearing Officer as requested by the applicant.

2. Should the motion be dismissed under the doctrine of issue estoppel?

20Even if section 78 applied to the circumstances of this case, the Commission agrees with the respondent that the applicant is precluded from relitigating the same issues that were before and fairly determined by the OPAC arbitrator.

The Arbitration

21On December 17, 2021, the Ottawa Police Association, on behalf of the applicant, filed a notice for arbitration. It alleged that the respondent violated section 2 of the Collective Agreement by “failing to implement the penalty disposition provided by Hearing Officer Terence Kelly, as directed” and discriminated against the applicant in its implementation of the penalty.

22Before the Arbitrator, the applicant argued that, because the applicant was on extended sick leave, the implementation of the penalty was unfair and greatly increased his financial penalty. The applicant suggested to the Arbitrator that the employer should have either “reinstated him to a 1st Class Constable’s salary during the period of his medical absence and commenced his penalty when he returned to work or continued his reduction in salary for a period of two years, then returned him to 1st Class Constable status and commenced the testing procedure when he returned to work” (Arbitration decision, p.8). In the applicant’s view, the Ottawa Police Service had an obligation to adapt the Hearing Officer’s penalty to his changing circumstances. It was also submitted that the penalty was imposed differently than in other cases (i.e., the Bond and Ramsay decisions noted above).

23In his decision issued March 4, 2021, Arbitrator Starkman found no violation of the Collective Agreement and dismissed the grievance. He wrote as follows:

The Disposition imposed by the Hearings Officer clearly provides that Constable Hafizi is to be demoted to 3rd Class Constable for a period of one year and then to 2nd Class Constable for a period of one year and then returned to 1st Class Constable upon successful completion of his annual performance appraisal and meeting standards in all his job competencies for each of the years. There is nothing in the Disposition which provides for a deviation from the plain meaning of the words because of unforeseen or changing circumstances which were not known at the time of the imposition of the penalty. The Hearing Officer accepted the joint submission as to penalty. If Constable Hafizi and the prosecutor had intended for the penalty to be implemented in a different manner based on certain contingencies, they could have submitted wording which made this clear. Similarly, if the Hearings Officer had intended that the penalty be implemented based on certain assumptions, or varied if the assumptions changed, he could have provided wording indicating this was the intention.

24The Arbitrator also determined there was no disparity in treatment. He reviewed the Bond and Ramsay cases and found they were not applicable and differed in various ways from the applicant’s matter.

Application of Issue Estoppel

25The Supreme Court of Canada set out the preconditions to the operation of issue estoppel in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 25: (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised. This doctrine applies in the administrative context. As stated in Danyluk at paragraph 21, and cited with approval in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19at paragraph 94, “[in the administrative law] context, the more specific objective is to balance fairness to the parties with the protection of the administrative decision-making process, whose integrity would be undermined by too readily permitting collateral attack or relitigation of issues once decided.”

26Here, the Arbitrator’s decision was final, and the parties were the same (before the Arbitrator, the applicant’s agent was the Ottawa Police Association). The applicant, however, submits that the question now before the Commission is different than that which was before the Arbitrator. He suggests that “fairness and corresponding renumeration were the substance of the grievance” before the Arbitrator but that “in the current motion, unfairness and its effects on financial loss are not the focus.”

27This, in my view, is not an accurate characterization of the motion before the Commission. Clearly, unfairness and financial loss form the basis of the applicant’s submissions to the Commission. The applicant asks the Commission to vary the penalty so to stay the order, limit the financial impact and to grant retroactive payment.

28In his motion materials, the applicant characterizes his argument before the Arbitrator as being that “the Employer’s selected method of implementing the disciplinary hearing penalty was unfair, as it greatly increased the financial penalty imposed on Constable Hafizi and was not that which was intended to be imposed by the Hearing Officer”. This is the exact argument now before the Commission—that the penalty is not being imposed as intended, is unfair and should be varied to clarify the intent. Further, before the Commission, the applicant points to the same two prior decisions of the Hearing Officer (Bond and Ramsay) that the Arbitrator found to be inapplicable to the applicant’s case.

29The applicant also argues that the motion before the Commission relates to a “separate argumentative framework involving separate legislation.” That may be, but the issue before the Commission remains, in essence, the same as that before the Arbitrator—the interpretation and application of the penalty ordered. The fact that the applicant has now characterized his argument as a motion under section 78 of the PSA does not preclude the application of issue estoppel (Hughes Land Co v Manitoba, 1998 CanLII 17673 (MB CA) at para. 37).

30Even where tribunals find the preconditions for the operation of issue of estoppel have been met, they retain a residual discretion to nonetheless decide the matter. There is no basis to exercise this discretion here. The applicant does not allege the proceeding before the Arbitrator was unfair, and I am not satisfied that there was a “significant difference between the purposes, processes or stakes involved in the two proceedings” (Penner at para. 42). The Arbitrator provided a clear interpretation of the penalty, found no error in its application and found that the cases presented by the applicant were inapplicable. Even if I were satisfied that section 78 permitted such an intervention, I would have declined to do so on the basis of issue estoppel.

ORDER

31The applicant’s motion is dismissed.