TRIBUNALS ONTARIO Ontario Civilian Police Commission
TRIBUNAUX DÉCISIONNELS ONTARIO Commission civile de l’Ontario sur la police
File: 22-ADJ-005
Between:
Chief Sylvie Hauth
Applicant
And
Ontario Civilian Police Commission
Respondent
DECISION ON MOTION
Panel:
Emily Morton, Vice-Chair
Appearances:
Scott Hutchinson, counsel for Chief Sylvie Hauth (retired)
Anthony Moustacalis, counsel for the Ontario Civilian Police Commission
Place of hearing:
In Writing - Toronto, Ontario
Introduction
1The applicant was charged with three counts of misconduct in a Notice of Hearing pursuant to s. 25(4) of the Police Services Act (PSA) dated June 22, 2022. The Commission set videoconference hearing dates of February 6 to 10, 2023 into the misconduct allegations.
2The applicant tendered her resignation as chief of the Thunder Bay Police Service on January 5, 2023. Following a pre-hearing conference with the parties on January 18, 2023, the Commission adjourned the hearing dates sine die and directed the applicant to bring a motion with respect to the Commission’s jurisdiction to proceed on the counts.
3On January 30, 2023, the applicant brought a written motion to quash the proceedings on the basis the Commission is without jurisdiction in light of the applicant’s resignation. On January 31, 2023, the respondent filed its written consent to the motion.
Disposition
4The Commission has no jurisdiction to proceed as the applicant is no longer a police officer as defined in s. 2(1) of the PSA. The counts in the Notice of Hearing brought pursuant to s. 25(4) of the PSA are dismissed.
ISSUES
5The issues to be decided are:
i. Has the applicant resigned from the Thunder Bay Police Service?
ii. What is the effect of the resignation on the Commission’s jurisdiction?
RELEVANT LEGISLATION
5The relevant provisions of the PSA are as follows:
s. 2(1) …“police officer” means a chief of police or any other police officer, but does not include a special constable, a First Nations Constable, a municipal law enforcement officer or an auxiliary member of a police force;
s. 25(1) The Commission may, on its own motion or at the request of the Solicitor General, the Independent Police Review Director, a municipal council or board, investigate, inquire into and report on,
(a) the conduct or the performance of duties of a police officer, a municipal chief of police, an auxiliary member of a police force, a special constable, a municipal law enforcement officer or a member of a board; …
s. 25(4) If the Commission concludes, after a hearing, that the conduct of a police officer, other than an officer appointed under the Interprovincial Policing Act, 2009, or municipal chief of police is proved on clear and convincing evidence to be misconduct or unsatisfactory work performance, it may direct that any action described in section 85, as specified by the Commission, be taken with respect to the police officer or municipal chief of police or that it may direct that the police officer or municipal chief of police be retired if he or she is entitled to retire.
s. 90(1) If at any time after a complaint about the conduct of a police officer is made under [Part V] and before the complaint is finally disposed of the police officer resigns, no further action shall be taken under [Part V] in respect of the complaint after the date of the resignation.
ANALYSIS
i. The applicant has resigned and is no longer a police officer
6Attached to the affidavit filed in support of the motion is a copy of the applicant’s resignation letter to the Administrator of the Thunder Bay Police Services Board, dated January 5, 2023. It indicates she will retire with an effective date of January 27, 2023 and asks the Administrator to accept the letter as official notice of her resignation. Also attached to the affidavit is a copy of a written response from the Administrator dated January 5, 2023, accepting the resignation effective January 27, 2023. The respondent has filed no material on the motion other than its consent, dated January 31, 2023. There is no evidence before the Commission that the applicant remains a police officer.
7Based on this affidavit evidence, the Commission finds the applicant has resigned effective January 27, 2023 and is no longer a police officer.
ii. The Commission has no jurisdiction to proceed
8The effect of the applicant’s resignation is that she is no longer a police officer, as defined in s. 2(1) of the PSA and, consequently pursuant to s. 90(1), the Commission has no jurisdiction to conduct the hearing under s. 25 of the PSA (see Ontario Civilian Police Commission v. Deputy Chief Uday Jaswal, 2022 ONCPC 4 at paras. 6-11; PSA ss. 2(1), 90(1)). Section 90(1) of the PSA prohibits any further action from being taken under Part V of the PSA in respect of the allegations of misconduct against the applicant as of the January 27, 2023 effective date of her resignation. The applicant’s resignation stopped the investigation process under s. 25(4) of the PSA, including the hearing, immediately and the Commission has no jurisdiction to conduct the hearing or deliver a decision on its merits.
ORDER
9The counts of misconduct in the June 22, 2022, Notice of Hearing made pursuant to s. 25(4) of the PSA are dismissed for lack of jurisdiction.
Released: February 1, 2023
Emily Morton