TRIBUNALS ONTARIO

Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission civile de l’Ontario sur la police

Citation: Robson v. Waterloo Regional Police Service, 2024 ONCPC 22

Date: 2024-02-02

File: 23-ADJ-011

Between:

Andrew Robson Appellant/Respondent on the Applications

and

Waterloo Regional Police Services Board Respondent

and

Waterloo Regional Police Service Chief of Police And Waterloo Police Service Association and Police Association of Ontario Applicant Applicant Applicant

Decision

Panel: E. Morton, Vice Chair

Participants: C. Jones, counsel for the appellant/respondent Andrew Robson R. Macklin and R. Khemraj, counsel for the respondent Waterloo Regional Police Services Board J. Barrow, counsel for the applicant Waterloo Regional Police Services Chief of Police J. Martin, counsel for the Waterloo Police Association M. Duffy, counsel for the Police Association of Ontario

Held by Videoconference: October 12, 2023

IntroductioN

1This proceeding arises under s. 47(5) of the Police Services Act, R.S.O. 1990, c. P.15 (the Act). Andrew Robson (the Appellant) is appealing to the Commission from the May 15, 2023 decision of a three-member panel of the Waterloo Regional Police Services Board (the Board) to dismiss him pursuant to s. 47(2) of the Act.

2This decision addresses intervenor and party status for the appeal before the Commission. The Waterloo Police Association (WRPA) and the Police Association of Ontario (PAO) brought motions before the Commission to intervene in the appeal. The Waterloo Regional Police Services Chief of Police (the Chief) participated in the motions requesting an order confirming his status as a respondent in the appeal.

DISPOSITION

3The Commission decides:

i. The WRPA is granted intervenor status in the appeal subject to limits on the scope of its participation, which will be determined at a later date.

ii. The PAO is granted intervenor status on the appeal as amicus and is permitted to file legal submissions on the appeal and at any preliminary motions. The page length of submissions will be determined at a later date.

iii. The Chief is named a respondent on the appeal.

BACKGROUND

4The Appellant began employment with the Waterloo Regional Police Service (the Service) in 2004. In the course of his employment, he developed mental health disabilities. In December 2011 the appellant was convicted of Criminal Code, R.S.C., 1985, c. C-46 and Controlled Drugs and Substances Act, S.C. 1996, c. 19 offences involving conduct while he was on duty. In January 2013 he received a 60-day conditional sentence along with probation. The Appellant has been suspended from work since November 2010, when he was charged with the criminal offences.

5In May 2011, the Appellant was served with a Notice of Hearing alleging 12 counts of misconduct contrary to the Act. In February 2012, the Service served a further Notice of Hearing alleging counts of discreditable conduct, arising from the criminal convictions. The Part V discipline proceedings were adjourned from time to time by conference calls between December 2015 to September 2018 to monitor whether the Appellant could participate or not due to medical reasons. The disciplinary hearing adjourned sine die on September 13, 2018. According to the May 15, 2023 decision of the Board, the adjournment was made “with the understanding that [the Service] would consider bringing an application pursuant to s. 47” of the Act.”

6Section 47 of the Act creates a process through which a police board may terminate the employment of a police employee who is mentally or physically disabled and cannot be accommodated without undue hardship:

47(1) Subject to subsection (2), if an employee of a municipal police force becomes mentally or physically disabled and as a result is incapable of performing the essential duties of the position, the board shall accommodate his or her needs in accordance with the Human Rights Code.

(2) The board may discharge the employee, or retire him or her if entitled to retire, if, after holding a hearing at which the evidence of two legally qualified medical practitioners is received, the board,

(a) determines, on the basis of that evidence, that the employee is mentally or physically disabled and as a result incapable of performing the essential duties of the positions, and what duties the employee is capable of performing; and

(b) concludes that the employee’s needs cannot be accommodated without undue hardship on the board.

7Section 47(2) of the Act does not set out a process through which s. 47(2) decisions are made, other than stating the “board” must hold a “hearing at which the evidence of two legally qualified medical practitioners is received” before deciding to discharge an employee. Nor does the Act explicitly set out a process through which a hearing under s. 47(2) is initiated or who the parties to it are.

8The Board’s May 15, 2023 decision indicates it was the Chief who initiated, or applied for, the s. 47(2) proceeding. The s. 47(2) process unfolded from August 13, 2021 to the Board’s May 13, 2023 decision discharging the Appellant. The Board’s decision describes the Chief and the Appellant as the “formal parties” to this s. 47(2) proceeding. At some point the Board determined a three-member panel of the Board would adjudicate the s. 47(2) hearing.

9The Appellant was unrepresented by counsel through the s. 47 proceeding before the Board. Initially, he consented to a written hearing, but withdrew his consent, advising that he understood his union, the WRPA, would be involved in his representation. In March 2022, the WRPA applied to intervene in the s. 47(2) process before the panel of the Board. The WRPA sought to make submissions on the proper legal interpretation of s. 47, as the decision in the Appellant’s case had the potential to impact its membership more broadly. The WRPA also sought standing as an intervenor to make submissions on issues more particular to the Appellant’s case. The proposed issues included the process and timetable for adjudicating the matter given the Appellant’s disability, interpretation of the Appellant’s medical records, and the impact of his outstanding Human Rights Tribunal of Ontario and Workplace Safety and Insurance Board matters on the proceeding.

10In a June 8, 2022 decision the Board granted WRPA intervenor status but limited its participation to submissions on the legal interpretation of s. 47 of the Act. The Board was not persuaded the remaining issues raised by the WRPA fell within the proper role of an intervenor. The Board held permitting the WRPA to make submissions on these issues meant that the Appellant “would not have legal representation in a formal legal process which involves risk to his continued employment.” The Board, apparently of its own motion, appointed amicus to assist the Appellant throughout the hearing.

11The Board ultimately converted the s. 47(2) hearing to a written hearing. The written submissions and evidence filed before the Board during the s.47(2) hearing were not filed with the Commission. There is not a full picture of the positions taken by the WRPA, the Appellant and the Board about some of the issues that will now become the focus on appeal.

12In its May 15, 2023 decision, the panel of the Board held that, based on the evidence of two practitioners, the Appellant is “mentally disabled” and “as a result incapable of performing the essential duties of the position” and “not capable of performing any police duties.” The panel also concluded the Appellant’s needs “cannot be accommodated without undue hardship on the Board” and discharged the Appellant.

13The Appellant served a notice of appeal on the Commission and the Board on June 15, 2023, pursuant to s. 47(5) of the Act which provides:

47(5) An employee of a police force who is discharged or retired under subsection (2)…may appeal to the Commission by serving a written notice on the Commission and on the board…within thirty days of receiving notice of the decision.

(6) The Commission may confirm, alter or revoke the decision or may require the board…to rehear the matter.

14The PAO and WRPA corresponded with the Commission indicating their intention to file motions to intervene in the s. 47(5) proceeding before the Commission. Following a pre-hearing conference held on July 19, 2023, the Commission also ordered the Chief and the Appellant to file materials addressing whether the Chief is properly named a respondent in the s. 47(5) appeal.

ISSUES ON THE MOTIONS

15The Commission must decide the following issues on these motions:

i. Does the Commission have authority to grant intervenor status on the appeal?

ii. Should the PAO be granted leave to intervene on the appeal?

iii. Should the WRPA be granted leave to intervene on the appeal?

iv. Is the Chief already respondent on appeal and, if not, should the Chief be granted leave to intervene?

CONTEXT

16Before deciding the individual issues identified above, it is useful to situate those decisions by setting out some of the broader arguments and positions taken by the parties.

17The present appeal is not the first decision the Commission has made pursuant to s. 47(5) of the Act or its predecessor section.¹ However, none of these prior decisions have grappled with the complex procedural and interpretive issues raised by the Appellant and proposed intervenors on this appeal. For this reason, the Appellant and proposed intervenors submit this appeal will serve as an important precedent, or a “blueprint” standard-setting analysis, for the interpretation and procedural application of s. 47(2) of the Act.

18The Appellant raises as issue on appeal whether the procedure used by the Board to make the s. 47(2) determination was authorized by the Act and was a process that protected the Appellant’s rights as an employee and under the Human Rights Code, R.S.O. 1990, c. H.19. There is a fundamental disagreement between the Appellant (along with the proposed intervenors) and the Chief as to the proper role of the latter at any stage in the application of s. 47 of the Act.

19The Appellant submits the proper parties to the s. 47(2) hearing were the Appellant and his employer, the Board. The function of s. 47(2) is to create a process for the Board, in its capacity as employer, to determine whether a disabled employee can be accommodated without hardship. The Board’s decision in this case to act as an independent tribunal hearing an application from the Chief as to his disability and his employer’s ability to accommodate him was, in the Appellant’s submission, inconsistent with the legal and statutory roles of the Board and the Chief.

20The Appellant relies on the distinct roles and duties of the Chief and Board in the Act, and as considered by the courts in prior decisions (Toronto Police Association v. Toronto Police Services Board, 20213 ONSC 4511 (Div. Ct.); Toronto (Police Association) v. Toronto (Police Services Board), 2015 ONCA 188, Shaw v. Phipps, 2010 ONSC 3884 (Div. Ct.), upheld 2021 ONCA 155). The Appellant emphasizes that the Act gives the Board exclusive responsibility over aspects of the employer-employee relationship and that though the Chief is responsible, by virtue of s. 41 of the Act, for day-to-day operations, the fundamental employer-employee issue raised in a s. 47(2) hearing is between the Board and the Appellant. In the Appellant’s submission it was misconceived for the s. 47(2) hearing to proceed with the Chief as a party, the Board as an independent decision maker, and for the WRPA to be limited to making submissions only on the legal interpretation of the Act. The Act does not grant the Chief a role in the s. 47 process, just as it does not grant the Board a role in Part V disciplinary proceedings.

21In contrast, the Chief takes the position he properly initiated the s. 47(2) process as part of his statutory authority under s. 41 of the Act to administer and oversee the operation of the Service. The Chief submits that a review of these responsibilities, particularly in ss. 41(1)(a), (b) and (d) of the Act, make clear that he is directly responsible for administrating the Service according to policies set out by the Board, ensuring the individual members of the Service fulfil their duties and administering Part V disciplinary proceedings. The Chief submits he was a natural and proper party to the s. 47(2) proceeding as he was equipped, as a result of his statutory responsibilities, with the necessary information relating to the Appellant’s employment and, as the actor responsible for administering the Appellant’s employment, had a direct interest in the outcome of the s. 47(2) proceeding.

22The Appellant has also indicated, both at the pre-hearing conference and in the Notice of Appeal, that the nature of the proceeding before the Commission is in issue. In the Notice of Appeal the Appellant indicates he will adduce evidence beyond the record of proceedings. Counsel (for the appellant?) indicated in a preliminary fashion that it will argue that the s. 47(4) proceeding before this Commission should take the form of a hearing de novo rather than an appeal based on the record of the s.47(2) proceeding before the Board. The Commission did not hear submissions on this issue, and instead will determine the appropriate parties and intervenors before doing so.

ANALYSIS

i. The Commission has Authority to Grant Intervenor Status

23As a threshold issue, I find the Commission has the authority to grant intervenor status. This is not an issue of serious contention among the parties. No party objects to the participation of the PAO or the WRPA as intervenors; the Appellant supports their motions for leave to intervene and the Board and Chief take no position. The Board decided that it had implied statutory authority to grant the WRPA intervenor status at the s. 47(2) hearing.

24As a tribunal subject to the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA), the Commission is empowered to control its own procedures. The Commission has made rules to address procedure in appeals where statutory intervenors participate in disciplinary appeals but has not made rules with respect to proceedings under s. 47(5) of the Act. Nothing in the Act prevents the Commission from acting on this inherent authority, in this case to grant intervenor status. Further, there is judicial authority that the Commission, as a statutory tribunal, possesses “inherent authority to permit intervention on terms and conditions they believe are appropriate in the circumstances”: American Airlines Inc. v. Competition Tribunal, 1988 CanLII 9456 (FCA) at 95.

ii. The PAO is Granted Intervenor Status

25The PAO describes itself as “the provincial umbrella organization for police associations in Ontario.” As a member of the WRPA the Appellant is by extension a member of the PAO. As noted above, the PAO will take the position the proceeding at the first instance was misconceived as the Chief ought not to have been a respondent party and the WRPA ought to have had broader participation as an intervenor.

26The PAO states it has a particular expertise in many of the issues to be raised in this proceeding. This includes interpreting s. 47 of the Act. The PAO has an established history of contribution to the drafting of the current act, as well as its successor, the Community Safety and Policing Act, 2019, S.O. 2019, c.1, Sched.1, and has further contributed to efforts to amend the Act. Courts and tribunals have granted leave to the PAO to intervene in prior cases that have entailed interpretation of the provisions of the Act.² The PAO will have submissions about “the proper role of the Chief of Police, the interpretation of other sections of the PSA, the extent of the duty to accommodate and how it interacts with s. 47, principles of administrative law such as procedural fairness, and standard of review.”

27I find it is appropriate for the PAO to be named an intervenor. In addition to considering the positions of the parties, The PAO has a distinct perspective from the other parties and proposed intervenors to this appeal. In particular, the PAO is in a position to make submissions that reflect the interests of all police associations in Ontario, including those with comparably low membership to the WRPA and other police associations in the province. It submits that the voice of police associations with low memberships will not otherwise reach the Commission and the PAO is situated to make submissions on the broader impact of the Commission’s decision in this matter on smaller services. The PAO, in oral submissions, also emphasized the importance of the Commission gaining a broader perspective on these issues in the context of an appeal that deals with mental disability arising from occupational stress injuries, which afflict many of its membership. These points on which the PAO can make submissions, in addition to the PAO’s established expertise in assisting decision makers with contextual interpretation of the provisions of the Act, satisfies me the PAO will make a distinct contribution to the proceedings as an intervenor.

28Counsel for the PAO clarified they seek intervenor status in an amicus role; that is, they will make submissions on legal arguments and do not seek broader participatory rights such as calling evidence or examining witnesses. The Commission will address appropriate page and oral argument time limits for the PAO in the case management process.

iii. The WRPA is Granted Intervenor Status

29The Commission finds it is appropriate to grant the WRPA intervenor status in this proceeding. The Board granted the WRPA intervenor status in the proceeding below, though only on the basis of its broader interest as the collective bargaining agent for most WRPS employees. The Appellant supports the WRPA’s application for leave to intervene and the Chief and the Board take no position on the application.

30Beyond the positions of the parties, I have considered the unique perspective of the WRPA in relation to the s. 47(5) appeal. The WRPA is the exclusive bargaining agent for the appellant and is responsible for negotiating and enforcing the terms and conditions of the collective agreement for the appellant and all other uniform officers (except Senior Officers). This includes negotiation and enforcement of human rights protections, including the accommodation of disability, which is central to this proceeding. The WRPA will rely on the courts’ recognition of the “tripartite duty to accommodate” which requires the union’s participation, along with the employee and employer to approach and resolve accommodation and undue hardship issues raised in a s. 47 proceeding: Central Okanagan School District No 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. It submits it is therefore a natural intervenor in any s. 47 proceeding and indeed has an obligation to participate in disputes arising under s. 47.

31The WRPA is differently situated from the Board and the Appellant in terms of its interest and expertise in interpreting the labour relations element of s. 47. The WRPA submits it has a distinct perspective and expertise in making submissions on issues such as the interaction of the Act and the Human Rights Code in interpreting “undue hardship”, the role of the union in disputes about accommodation and the interpretation of s. 47 in the context of re-employment obligations in the Workplace Safety and Insurance Act, 1997, S.C. 1997, c. 16.

32Finally, in terms of the broader contextual issues referenced above, the WRPA brings its distinct perspective to the proper interpretation of the process and procedure to be implemented in a s. 47 proceeding, including the proper parties to a s. 47 hearing. Again, like the PAO and the Appellant, the WRPA takes the position this matter represents an opportunity for the Commission to conduct a standard setting analysis of the exercise of the s. 47 authority province wide.

33The real issue is the extent of the participatory rights to be granted to the WRPA as intervenor. In its factum in support of the motion, the WRPA requests the Commission grant it leave to intervene “on terms and conditions to be determined.” It is implicit in the written submissions of the WRPA, however, that it contemplates a role as intervenor more expansive than a traditional amicus role. The WRPA’s submissions suggest a possible intention to adduce evidence and/or examine or cross-examine witnesses, should the Commission decide to hear further evidence.

34It is difficult to determine the appropriate nature and extent of the WRPA’s participatory rights at this stage in the proceeding. The parties dispute, and the Commission has not yet decided, whether this matter will proceed as an appeal on the record and if so, whether the Commission will allow parties to supplement that record, or whether it will proceed as a de novo hearing.

35In the Commission’s view, it would be premature at this time to set out with precision the issues on which the WRPA may intervene and the scope of its participatory rights as an intervenor. The Commission will address the participatory rights of the WRPA on the appeal and any further preliminary motions on the appeal in the case management (pre-hearing conference) process.

iv. The Chief is Named a Respondent on the Appeal

36Section 47(5) of the Act allows an employee who has been discharged by a police services board under s. 47(2) to appeal to the Commission. They must do so within 30 days of the Board’s decision and must also give notice to the Board. As already noted, section 47(2) does not expressly state who the parties to a s. 47(5) appeal are. There is a live issue as to whether the Chief ought to be an automatic respondent in this appeal. The contextual background set out above, i.e., the broader dispute about the Chief’s role in any stage of a s. 47 proceeding, informs this dispute.

37It is the Appellant’s position the Commission should only grant the Chief intervenor status on the s. 47(5) proceeding, and only to the extent the Chief has a role distinct from the Board as the Appellant’s employer. While the Appellant “does not object to granting the Chief intervenor status, he does object to the description of the Chief’s role and participatory interests in the matter as set out in the request for standing.” He submits that “to the extent that the Chief of Police has unique and particular perspective – distinct from those of the Board as Employer – those submissions should be welcomed by this Tribunal through a grant of intervenor status to the Chief.”

38The Chief submits he is and was a proper and natural party to the s. 47 proceeding, as he is the person responsible for the administration of the Appellant’s employment relationship, had the necessary information relating to the Appellant’s employment, and is directly affected by the outcome of a s. 47 decision regarding an officer’s employment. The Chief points to s. 5 of the SPPA and to a body of cases that affirm the principle that natural justice requires that if a person is directly affected by a statutory appeal or a judicial review of an administrative decision, that person should be granted party status. The cases also make clear that any person who had been a participant in the original hearing should be added as a party to any statutory appeal or judicial review. He cites three cases dealing with policing matters that have applied these principles to grant status in a statutory appeal or judicial review to a party who had a direct interest in the outcome of the proceeding and participated in the proceeding below: Office of the Independent Police Review Director v. Regional Municipality of Niagara Police Service Board, 2016 ONSC 5280, Nobody v. Ontario Civilian Police Commission, 2016 ONSC 5824, Sipar v. Schertzer, 1999 CanLII 31608 (ON CPC).

39I find Nobody and Sipar to be most relevant. In Nobody, the Divisional Court heard a judicial review of a Commission decision dismissing the appeal of public complainants for untimely service of the notice. The Divisional Court held, over opposition from the respondent officers, that the Office of the Independent Police Review Director (OIPRD) should be added as a party. Dambrot J. held that while the OIPRD was in fact named as a respondent, they would have been granted to leave to participate in any event. Dambrot J. wrote the following at paras. 30-31:

It should not be open to an applicant to pick and choose who amongst the participants in an administrative proceeding should be named as a respondent on a judicial review. The proper approach to naming respondents should be clear and consistent. I note that Green C.J.T.D. [in Facility Association v. Board of Commissioners of Public Utilities (Nfld. And Lab.), 2003 NLSCTD 163] speaks of naming persons who participate as parties in the tribunal below” while Brown and Evans [in Judicial Review of Administrative Action in Canada, 5th ed. (Markham, Ont.: LexisNexis Canada Inc. 2011] refer to “participants in an administrative hearing” (emphasis added in each case). I see this as a distinction without a difference. Generally speaking, a party to a legal proceeding should be understood in this context to simply be someone who had or was given the right to participate in the administrative hearing.

40In Sipar, a public complainant sought leave to appeal to the Commission a hearing officer’s decision dismissing charges against respondent officers as the Notices of Hearing were untimely. The Commission decided that the Chief’s appointed prosecutor was a proper party to the leave application, where the relevant statutory provision dealing with appeals did not clearly specify who the parties to the appeal are to be, though the prosecutor was clearly a statutory party at the hearing below. The Commission found assistance in s. 5 of the SPPA and went on to hold that though the Act did not make clear that the prosecutor was a party in an appeal arising from a public complaint “it makes sense that, unless otherwise specifically excluded by statute, that the parties to an initial hearing are lawful parties to any appeal. A rule to this effect is not inconsistent with the Act.”

41The Commission finds the principle that a party who was given the right to participate in the underlying proceeding should be made a party to the appeal of that proceeding applies here. Clearly there are distinctions between the Nobody and Sipar cases and this appeal, where the Act does not provide expressly provide that the Chief is a party at any stage of the s. 47 process and, according to the Appellant, the Board erred by permitting the Chief to insert himself as a putative applicant in the s. 47(2) proceeding. However, the fact remains that the Chief participated fully, with the rights accorded to a party in the proceeding below. The issue of whether the Board erred by permitting this has yet to be determined by the Commission on appeal.

42The Appellant submits the Chief cannot rely on the process at first instance, which in its submission was misconceived, to claim standing in the s. 47(5) proceeding. The Appellant submits that on this logic, any party erroneously added as a party withstanding below will have standing at the s. 47(5) process as of right. It is not necessary to address this argument about hypothetical persons being added as parties—the Commission will be required to decide the issue of whether the Chief ought to have been made a party in the proceeding below. Permitting the Chief to participate as a respondent on this appeal should not be taken as the Commission endorsing the decision made below. The Commission will decide that after hearing from the parties on the merits of the appeal.

43I also conclude the participation of the Chief as a party, rather than the Board, helps mitigate any concerns that may arise from the principles set out in Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 [“Ontario Energy Board”]. In that case, the Supreme Court of Canada cautioned tribunals about participating in the merits of an appeal or review of their own decision. To be clear, the Commission has not been asked to define the Board’s role in the appeal as part of these applications. However, the Board submitted in writing that the Commission has discretion to permit the Board varying participation rights as it made the decision under appeal. In the Commission’s view, permitting the Chief to respond to the issues presented by the Appellant will allow the Commission to hear balanced and fulsome submissions on the issues in this appeal. Even if, in its final analysis, the Commission decides the Chief ought not to have had full party status at the hearing below the Commission will nonetheless benefit from the Chief’s participation as a respondent.

44Finally, I have difficulty seeing how allowing the Chief to participate as a respondent to the s. 47(5) proceeding will prejudice to the Appellant. The Appellant is now represented by counsel. The Commission has made orders granting the POA and the WRPA intervenor status and both have taken positions that favour the Appellant’s interpretation of the statute. I am not satisfied that the Appellant has demonstrated they will suffer any prejudice, such as procedural unfairness, from the Chief’s participation.

45Therefore, the Chief is permitted to participate as a respondent in the s. 47(5) proceeding before the Commission.

ORDER

13The Commission orders:

i. The PAO is granted intervenor status at all stages of appeal before this Commission as amicus.

ii. The WRPA is granted intervenor status at all stages of the appeal before the Commission. The scope of the WRPA’s participatory rights will be confirmed at a future date.

iii. The Chief is named a respondent in the appeal before the Commission.

iv. The Commission’s Registrar will contact the parties and intervenors to arrange a pre-hearing conference to determine next steps.

Footnotes

1. 1Shaw and Windsor Police Services Board (OCCPS, unreported, December 3, 2002; Francis and Haldimand-Norfolk Regional Police Services Board (OCCPS, unreported, June 1993); McLane and Durham Regional Board of Commissioners of Police 1990 CanLII 10513 (OPC); Bassett and Hamilton-Wentworth Regional Board of Commissioners of Police (unreported, OPC, January 15, 1988); Boubrough and Brantford Board of Commissioners of Police, (unreported, OPC, January 9, 1987), MacPherson and Ottawa Board of Commissioners of Police, 1984 CanLII 3105 (OPC), DeBathe and Walkerton Board of Commissioners of Police, (unreported, OPC, March 28, 1984)
2. 2R. v. Doering, 2022 ONCA 559 (reasons granting leave to intervene at 2021 ONCA 924); Jacobs v. Ottawa Police Service, 2016 ONCA 345; Wood v. Schaeffer, 2013 SCC 71; Peel (Police) v. Ontario (Special Investigations Unit), 2012 ONCA 292; Ontario (Civilian Commission on Police Services) v. Browne, 2001 CanLII 3051 (ONCA).