TRIBUNALS ONTARIO
Ontario Civilian Police Commission
TRIBUNAUX DÉCISIONNELS ONTARIO
Commission civile de l’Ontario sur la police
Citation: Constable Christopher Anderson v. Ontario Provincial Police, 2024 ONCPC 27
Date: 2024-03-14
File: 23-ADJ-013
Between:
Constable Christopher Anderson Appellant
and
Ontario Provincial Police Respondent
Decision and Order
Panel: Laura Hodgson, Vice Chair Emily Morton, Vice Chair Kate Grieves, Member
Participants: Bryan Badali, Counsel for Christopher Anderson Christopher Diana, Counsel for Ontario Provincial Police
Held by Videoconference: November 30, 2023
Introduction
1In a decision dated April 5, 2023, the Hearing Officer, Superintendent Melissa Barron, found the Appellant, Constable Anderson, guilty of two counts of discreditable conduct and one count each of neglect of duty and deceit contrary to the Code of Conduct under the Police Services Act, R.S.O. 1990, c. P.15 (the PSA). He was acquitted of one count of discreditable conduct.
2The Appellant, who was unrepresented when the hearing commenced on March 20, 2023, did not appear for the hearing and the Hearing Officer proceeded in his absence. The Hearing Officer had previously denied the Appellant’s request for an adjournment for medical reasons.
3In the penalty disposition dated June 23, 2023, the Hearing Officer ordered that the Appellant be immediately dismissed. She further granted the Respondent’s application brought pursuant to s. 25(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the SPPA) to lift the automatic stay of penalty if the appellant appealed the findings of guilt or penalty.
4The Appellant appeals the findings of misconduct and penalty. He also brought a motion to the Commission seeking an order restoring the automatic stay of penalty pending the disposition of the appeal pursuant to s. 25(1) of the SPPA, which was prospectively lifted by the Hearing Officer on June 23, 2023.
5For the reasons that follow the Commission finds that the Hearing Officer’s decision to proceed in the absence of the Appellant was procedurally unfair. The findings of misconduct are quashed and a new hearing is ordered. The Commission further finds that the Hearing Officer erred by lifting the automatic stay pursuant to s. 25(1)(b) of the SPPA. The Hearing Officer’s order lifting the stay is set aside.
The Standard of Review
6the standard of review applied by the Commission when considering an appeal from the decision of a hearing officer is reasonableness on questions of fact and correctness on questions of law: Ottawa Police Service v. Diafwila, 2016 ONCA 627. Questions as to whether facts satisfy a legal test are questions of mixed fact and law and are to be reviewed on the standard of reasonableness unless there is an extricable question of law involved: Floria v. Toronto Police Service, 2020 ONCPC 6; Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 53.
7The standard of review on questions of procedural fairness is correctness, alternatively described as there being no standard of review. The Commission must consider whether the required elements of procedural fairness in the particular circumstances have been met: see Forestall v. Toronto Police Services Board, 2007 CanLII 31785 (Ont. Div. Ct.) at para. 38; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 at para 49; Brooks v. Ontario Racing Commission, 2017 ONCA 833 at para. 5; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at paras. 26-30.
Summary of the Facts
The Allegations
8The Appellant, a Detective Constable with the Ontario Provincial Police (OPP), received the Notice of Hearing dated February 19, 2021 alleging the five allegations of misconduct. The allegations spanned a time period between February 2019 and October 2020. They include allegations of violence against the Appellant’s domestic partner, operating a vehicle while intoxicated, dangerous storage of firearms and fraud. Parallel criminal charges alleging domestic assault were withdrawn after the Appellant entered into a peace bond on June 22, 2021.
9Because we have decided that this matter needs to return for a new hearing the alleged misconduct is only detailed as necessary for the purpose of this appeal.
Procedural History
10The Appellant first appeared before the Hearing Officer on March 17, 2021, and the PSA proceedings were adjourned sine die on May 12, 2021, pending completion of the criminal proceedings.
11Following the withdrawal of the criminal charges, with the agreement of the Appellant’s counsel (not counsel on this appeal), the Appellant’s PSA hearing was scheduled to proceed on March 20, 2023.
12On February 6, 2023, six weeks prior to the hearing, the Appellant’s counsel advised the Hearing Officer that the Appellant would request an adjournment for medical reasons. The Appellant tendered two medical reports in support of the motion which was heard on March 13, 2023.
13On March 14, 2023, the Hearing Officer dismissed the motion to adjourn with written reasons. She ordered the hearing to proceed, as scheduled, on March 20, 2023.
14On March 15, 2023, the Appellant’s counsel emailed the Hearing Officer advising that he could no longer represent the Appellant due to a breakdown in solicitor-client relationship. He asked to be formally removed as counsel of record, indicating that he had informed the Appellant of this request.
15The Appellant did not attend on the date of the hearing. The Respondent police service asked that the hearing proceed. The Hearing Officer agreed to proceed in the Appellant’s absence.
16The Respondent called one witness, an investigator with OPP Professional Standards, and the case was tendered through recorded statements and photographs. The hearing, which was scheduled for five days, concluded that same day. As noted, in reasons dated April 5, 2023, the Hearing Officer found the Appellant guilty of two counts of discreditable conduct, one count of neglect of duty and one count of deceit.
17The penalty hearing proceeded on May 29, 2023. The Appellant again did not attend. The Appellant’s counsel on this appeal, who was retained by the Appellant between the misconduct hearing and the penalty hearing, attended. He did not participate other than to make submissions on the Respondent’s application to lift the stay of penalty pending appeal. In reasons dated June 23, 2023, the Hearing Officer ordered that the Appellant be immediately dismissed. In the same set of reasons, the Hearing Officer granted the application to prospectively lift the stay of penalty under sub section 25(1)(b) of the SPPA.
ISSUES Raised on appeal
18The Appellant raises the following issues on appeal:
i. Did the Hearing Officer unfairly dismiss the Appellant’s request for an adjournment?
ii. Did the Hearing Officer violate the Appellant’s right to a procedurally fair hearing by proceeding in the Appellant’s absence?
iii. Did the Hearing Officer err by lifting the stay of penalty?
iv. Did the Hearing Officer err with respect to penalty?
ANALYSIS
i. The Adjournment Request Was Not Unfairly Dismissed
19The Appellant tendered two documents on the motion for an adjournment. The first was a Workplace Safety and Insurance Board Community Mental Health Program Assessment Report dated October 27, 2020. It notes the Appellant’s diagnosis of post-traumatic stress disorder (PTSD) and recommends weekly or twice weekly treatment. Noted symptoms at the time of the report were anxiety, sleep and cognitive issues, including an inability to concentrate. The report noted that, at that time, return to work may not be manageable and reintroduction would require consideration of specific policing risks.
20The second report titled “First Responder Mental Health Specialty Program – Summary Report” was dated February 1, 2023. This report summarized an assessment by a team comprised of a psychologist, psychiatrist and mental health clinician. It provided information with respect to the Appellant’s return to work. Proposed treatment included weekly sessions for trauma processing, referral to an occupational therapist and medication changes. The program offered a “follow up assessment” in three to four months.
21The report also contained a “summary of return to work recommendations from a psychological perspective”. These included:
- Restriction on tasks involving exposure to traumatic events;
- Limitation on activities working in a team environment, supervisory role or with the public;
- Limitation on tasks requiring multitasking, complex decision making, detail oriented and sustained concentration for efficient pace/task completion.
22With respect to limitations on multi tasking/complex decision making, the report noted that the Appellant’s symptoms of impaired concentration and executive dysfunction disrupt his ability to complete tasks in a timely manner. It also noted that the Appellant’s symptoms of fatigue/sleep disruption were likely to impair completion of activities without error, “[a]ll of which are important considerations in policing when determining eligibility for criminal charges or apprehensions, writing supportive documentation and details in reports, testifying in court and participating in investigations or shared caseloads.”
23In her reasons for refusing to grant an adjournment the Hearing Officer fully reviewed the relevant jurisprudence and the medical documentation tendered. She noted there is no right to an adjournment and the onus was on the Appellant to provide the information necessary to satisfy the request. She recognized that, in considering the request, she was required to balance the importance of expeditious resolution of disciplinary proceedings with the need to ensure procedural fairness and natural justice.
24The Hearing Officer found the 2020 report to be of little assistance. She concluded that it was dated and written as a workplace assessment that focused on police work and risks. While accepting that the officer had been diagnosed with PTSD, the Hearing Officer found that more relevant, timely information was required relating to his ability to participate in a PSA hearing.
25The Hearing Officer then reviewed the 2023 report including the summary of the return to work recommendations. She noted that there was no evidence that, to date, any recent recommendations have been followed (e.g., engagement of an occupational therapist or changes to medication) and further there was no information with respect to what treatment the Appellant had previously received.
26The Hearing Officer found that, similar to the 2020 report, the 2023 report was prepared in consideration of the Appellant’s return to police work and contained little useful information to assess his ability to participate in a PSA hearing. The Hearing Officer held that the ability to attend a disciplinary hearing is “markedly distinct” from the ability to attend work as a police officer. While the report spoke to limitations, it did not indicate that the Appellant would be medically unable to participate in a PSA hearing. The Hearing Officer noted that the tribunal could provide the Appellant accommodations as necessary throughout the hearing but would require more specific information to do so.
27The Hearing Officer ultimately concluded that the evidence was insufficient to warrant an adjournment:
It would have been especially helpful had a medical expert presented direct evidence specific to the disciplinary process. Information on D/C Anderson’s treatment – if any – between 2020 and 2023 would have also been useful, as would documentation on current treatment and appointments (as opposed to recommendations). When considering the passage of time between the first report, the PSA procedural steps that have taken place in the interim, including setting of dates, and now the second report which provides recommendations and addresses limitations on a RTW basis only, I find there is insufficient evidence before the tribunal to show that D/C Anderson is unable to attend, to be heard, to present his case and to fairly participate in an adequate hearing.
Analysis
28On appeal, the Appellant again submits that the evidence sufficiently supported his request for an adjournment. Further he submits that it was procedurally unfair for the Hearing Officer to not provide the Appellant the opportunity to provide more specific medical evidence if she thought it necessary.
29In the Respondent’s submission, it was open to the Hearing Officer, based on the evidence available, to deny the request and there was no denial of procedural fairness. We agree.
30The decision to grant an adjournment is discretionary. It must be made fairly and in accordance with the principles of natural justice (see Wagg v. Canada 2003 FCA 303 at para. 19 and Ontario Securities Commission v. Go-To Developments Holdings Inc., 2022 ONCA 328 at para 11). Here, the Hearing Officer took into account the relevant considerations, balanced the competing interests and her decision was consistent with the interests of justice.
31Section 21 of the SPPA addresses the power of the tribunal to adjourn proceedings:
A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held.
32The Commission has considered the meaning of section 21 in Constable Christian Brudlo and The Toronto Police Service, 2005 CanLII 81117 (ON CPC) at paras. 100-102:
This provision provides tribunals with an essential power to control their hearing process.
There is no right to an adjournment. The onus is on a party requesting an adjournment to show that it is required. The tribunal is obliged to assess any such request in light of a number of considerations. This would obviously include the history of the particular proceeding in question. Broader concerns can entail the importance of expeditious resolution of disciplinary proceedings involving public officials exercising significant powers.
Such considerations must be balanced against the essential need to ensure procedural fairness and natural justice. Police officers facing discipline are entitled to know the allegations against them, to be represented, to receive proper disclosure and have sufficient time to prepare.
33It was both reasonable and correct of the Hearing Officer to conclude that the evidence, which consisted of summary reports addressing the Appellant’s return to work limitations, without information specific to participating in a discipline hearing or about any treatment planned or received, was insufficient to meet the onus to grant an adjournment. Section 21 of the SPPA requires that a hearing must be “adequate” and not held to a standard of perfection.
34Further, procedural fairness considerations did not require the Hearing Officer to, as the Appellant submits, provide him the opportunity to file more specific medical information. The Hearing Officer observed that the PSA proceedings had been ongoing for years and the Appellant had adequate time to prepare and raise medical issues specific to his participation in the proceedings. As noted by the Hearing Officer, the onus was on the Appellant to establish that an adjournment was warranted. While of course open to the Hearing Officer to adjourn the hearing and request additional evidence, to not do so in the circumstances here was not procedurally unfair.
35Having found no error of law or procedural unfairness in denying the adjournment, the Commission dismisses this ground of appeal.
ii. The Hearing Officer Violated the Appellant’s Right to a Procedurally Fair Hearing by Proceeding in his Absence
36While the Commission finds no procedural unfairness in the denial of the adjournment, we do find that by proceeding with the Appellant’s hearing in absentia, the Hearing Officer denied the Appellant procedural fairness. We revoke the finding of misconduct and penalty and order a new hearing on this basis.
37Five days prior to the hearing date, the Appellant’s counsel asked to be removed from the record. Counsel emailed the Hearing Officer, copying the Respondent and the Ontario Provincial Police Association (OPPA) counsel.
38In his first email, counsel advised that he could no longer represent the Appellant as there had “been a complete and irreparable breakdown of the solicitor client relationship between myself and Detective Constable Anderson. It is impossible for me to continue to act for him.” Counsel indicated there was “a history to the matters that drive this decision.” Counsel advised that he anticipated that the Appellant would not attend the hearing on March 20, 2023, but that counsel for the OPPA, had offered to speak to the matter. A short time later, counsel clarified in a second email that he was formally requesting to be removed from the record and that he had informed the Appellant of this request.
39The Hearing Officer responded to counsel the same day indicating she would formally remove him from the record. She thanked counsel for his efforts to assist the Appellant and added "I sincerely hope he will come to appreciate it." Her email indicated the matter would commence as scheduled, the following Monday, March 20, 2023 "at OPP GHQ" with a link available for counsel, witnesses and the Appellant to attend virtually. The Appellant was not included on any of this email correspondence.
40At the commencement of the hearing, five days later, the Appellant was not present. Counsel for the OPPA did not appear to be representing the appellant and did not speak to the matter. When asked their position on how to proceed counsel for the Respondent police service stated: “As indicated, the officer’s absence is expected based on information that I had received from [the previous counsel of record] and from the OPPA following—following [the previous counsel of record] stepping aside from this file. The prosecution is ready to proceed, and when you’re ready, I suggest that we read out the Notice of Hearing. As the officer is not here to enter a plea, then a not guilty plea should be entered on his behalf, and it will then be up to the prosecution to prove on clear and convincing evidence the allegations set out in the Notice of Hearing.”
41In her brief oral reasons allowing the request to proceed in the Appellant’s absence, the Hearing Officer recited the history of proceedings and highlighted excerpts from her earlier reasons denying an adjournment, citing jurisprudence related to procedural fairness. She noted that the Notice of Hearing, served on February 23, 2021, indicates that if the officer fails to attend, the presiding officer may proceed in his absence. The Hearing Officer observed that the Appellant appeared previously and that “there has been consistent representation by counsel throughout”. After noting that the Appellant had received the disclosure one year prior and had sufficient time to prepare or to raise accommodation requests she ultimately concluded that the hearing should proceed in his absence.
42Later, in her written reasons for findings of misconduct the Hearing Officer reiterated her oral decision to proceed without the Appellant. She noted that, as indicated in her decision denying the adjournment, the tribunal was willing to accommodate the officer if necessary and that, “[u]pon removal of D/C Anderson’s counsel as requested, the hearing was set to commence in person at OPP General Headquarters, which was closer for D/C Anderson than the original location in East Region, but also with a video link for the officer if preferred.”
43The written reasons summarize the Hearing Officer’s decision to proceed in the Appellant’s absence as follows:
D/C Anderson was aware of the hearing date; he had been represented by counsel throughout the proceedings until immediately prior to his hearing; he received disclosure over a year ago; had sufficient time to prepare for his hearing; and the opportunity to raise any medical concerns or requests for accommodation as needed, well in advance. On the day of
his hearing he was absent without any explanation and no one appeared on his behalf. Given the background above, the hearing continued in absentia.
Analysis
44In the Appellant’s submission, the Hearing Officer’s decision to immediately proceed in his absence was procedurally unfair and void of any concern for his rights to a fair hearing. We agree and, on this basis, would order a new hearing. The Appellant also argued that it was a breach of procedural fairness to remove the Appellant's counsel in the absence of proof of notice to the Appellant and without inviting submissions from the Appellant. It is unnecessary for the Commission to decide this point, as it has already decided to revoke the Hearing Officer's decision on the other ground.
45The duty of procedural fairness “is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.” (see Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at 22). When considering if the Hearing Officer was procedurally fair in proceeding in the Appellant’s absence we need to consider the specific circumstances and what procedures and safeguards were required in those circumstances (London (City) v. Ayerswood Development Corp 2002 CanLII 3225 (ON CA), 167 O.A.C. 120 (C.A.) at para. 10).
46As the factual background informs the procedural fairness, the context of the Hearing Officer’s decision to proceed in the Appellant’s absence is clearly important. In her oral decision, the Hearing Officer states, “certainly the officer was aware of today’s date”. There is nothing, however, on the record with respect to confirmation that the Appellant personally received notice the hearing was set to proceed on March 20, 2023. This is not an abstract concern; following the removal of counsel, the Hearing Officer changed the physical hearing location and indicated that the Appellant could appear virtually. In these circumstances, the Hearing Officer should have made inquiries, on the record, before proceeding with the hearing, confirming that the Appellant was properly served the Notice of Hearing which included a new hearing location and links to access the hearing virtually.
47The Appellant was not included on any correspondence indicating that his counsel had been removed from record. The Appellant’s former counsel indicated, in an email to the Hearing Officer, that he advised his client he was asking to be removed from the record. There was nothing before the Hearing Officer confirming this or that counsel had advised the appellant that the request was granted and he was, in fact, removed from the record. The Hearing Officer should have taken steps to verify that the Appellant understood he was unrepresented and to determine if he was retaining new counsel. As noted by the Appellant, at the hearing of the appeal, this could have been done through the OPPA legal representative. While there is no indication that OPPA counsel was representing the Appellant, he had been copied on emails and was present for part of the proceedings.
48In her oral and written reasons for proceeding, the Hearing Officer stated the Appellant had “received disclosure well over a year ago … has had sufficient time to prepare for his hearing…” This unfairly ignores the fact that, only days prior, the Appellant became an unrepresented party. There was no indication or inquiry as to whether disclosure that had been in the possession of the Appellant’s now former counsel had been transferred to the appellant. Further, in the context of this case, five calendar days for an unrepresented party to prepare could not fairly be characterised as “sufficient time”.
49In the Commission’s view, the need to make inquiries to ensure procedural fairness was heightened by the Appellant’s documented mental health issues. While finding the medical evidence insufficient to warrant an adjournment, the Hearing Officer had accepted that the Appellant was diagnosed with PTSD which impacted his decision making, concentrating and multitasking. The Hearing Officer, on the record and in written and oral reasons, repeatedly referenced the possibility of the Appellant requesting accommodations for his medical concerns. This stands in stark contrast to the Hearing Officer’s decision to proceed in absentia without even a brief recess for inquiries about the Appellant’s whereabouts, his current mental health and whether he had proper notice of the hearing and that it would proceed in his absence.
50In the circumstances of this case there were insufficient safeguards to ensure procedural fairness. At a minimum, the Hearing Officer should have satisfied herself that the Appellant was aware that the hearing was proceeding on the originally scheduled date and did not intend to retain new counsel. This could easily have been achieved by the Hearing Officer briefly adjourning the proceedings and asking the OPPA representative or the Respondent counsel to make the necessary inquiries.
51The Appellant had no pattern of failing to attend and had been represented throughout the proceedings. This case is distinct from Mauro v. Thunder Bay Police Service, 2013 ONCPC 9, where the hearing proceeded in absentia after multiple adjournments and a “persistent lack of cooperation”. Here, there had been no prior adjournments; the matter proceeded on the first hearing date set after the resolution of the criminal charges, and there was no lack of cooperation noted.
52Notably, the Appellant’s matter was scheduled for five days and the hearing was completed on the first day. A brief adjournment at the outset of the proceedings to determine whether the Appellant received the necessary notice and whether the Appellant was seeking new counsel would not have prejudiced an “expeditious resolution” and would have afforded a measure of procedural fairness.
53The nature and significance of the proceedings to the Appellant necessitated a high degree of procedural fairness: Baker, supra at para. 22. The Notice of Hearing alleged very serious misconduct including domestic violence and impaired driving. The Respondent gave notice it was seeking the immediate termination of the Appellant. In these circumstances, choosing to immediately commence the hearing without the Appellant present and without making any further inquiries, the Hearing Officer denied him procedural fairness.
54In sum, where counsel was removed from the record days prior, there was no confirmation that the Appellant received personal notice of the hearing date and changed location, no confirmation he had received and had adequate time to review disclosure, no inquiry into his intention to retain new counsel, documented mental health issues and no prejudice in a brief adjournment to make the necessary inquiries, proceeding in absentia was not procedurally fair. The Hearing Officer was not appropriately guided by principles of fairness. As a result, the findings of misconduct and penalty will be quashed and a new hearing ordered.
iii) The Hearing Officer erred by lifting the stay of penalty
55In addition to appealing the finding of misconduct and penalty, the appellant brought a motion requesting the Commission restore the stay of penalty retrospective to the date the Notice of Appeal was filed. This motion was heard by the Commission at the same time as the appeal.
56Pursuant to s. 25 of the SPPA, an appeal from a Hearing Officer’s decision to this Commission automatically stays the penalty unless ordered otherwise. Here, the Hearing Officer found that, even prior to an appeal of her decisions being filed, the s.25 stay should be lifted and the penalty enforced. The Commission finds that the Hearing Officer erred in lifting the stay and allows the motion.
57Section 25(1) of the SPPA provides:
25(1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,
(a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or
(b) the tribunal or the court or other appellate body orders otherwise.
58At the penalty hearing, the Respondent sought an order pursuant to s. 25(1)(b) to suspend the operation of the automatic stay of the penalty decision (termination) pending appeal. The Appellant’s appellate counsel attended the penalty hearing and made submissions only on the application of s.25(1)(b). He directed the Hearing Officer to this Commission’s decision in Kyle v. York Regional Police Service, 2002 CanLII 76718 (Kyle) and submitted an assessment of the potential merits of an appeal are a relevant consideration. He submitted the Hearing Officer was not in the best position to make that assessment, given a Notice of Appeal had not been filed, and pointed out there was no prejudice to the Respondent bringing the s.25(1)(b) application to the Commission after the Appellant filed his notice. Counsel asked the Hearing Officer to exercise the “utmost caution” before making a prospective order suspending the stay without an appeal having been commenced.
59Before the Hearing Officer, the Respondent’s submissions focused on the public perception of the Appellant remaining on paid suspension, as he had been since February of 2021, in the face of findings of serious misconduct. The Respondent conceded the Appellant had not caused delay. However, the fact two years had elapsed generated a “strong public interest” and meant the “public would be outraged” should the appellant remain on paid suspension as automatically permitted under s.25. The Respondent submitted the Appellant would not be prejudiced by the order as, if the Commission allowed his appeal, he would regain his employment.
60The Hearing Officer found she had authority under s. 25(1)(b) to prospectively lift the stay even though the Appellant had not yet filed a Notice of Appeal. In her reasons to lift the stay, the Hearing Officer drew heavily on the Commission’s prior decision of Brooks and Durham Regional Police Service (1989), 2 O.P.R. 850 (OPC), which applied a predecessor section of s.25(1)(b). It held the factors to consider included the seriousness of the matter, the length of the Appellant’s paid suspension, any delay in the proceeding, and the fact dismissal had been ordered. The Hearing Officer held that, given the egregious nature of the Appellant’s conduct, she had concern “about continued damage to the reputation of the OPP” should he remain employed and that “no reasonable person in the community would expect his employment to continue pending appeal.” The Hearing Officer declined to conduct an inquiry into any merit of the Appellant’s proposed appeal of her decisions, finding the Commission was best placed to make that assessment.
Analysis
61The Commission has ordered the findings of misconduct be set aside and a new hearing pursuant to s.87(8)(a) of the Act. In oral submissions, the Appellant urged the Commission to rule on the motion to restore the automatic stay regardless of the outcome of the appeal from the finding of misconduct. First, he submitted that an order restoring the stay provides clarity that the Appellant continued to be entitled to his pay and benefits from the date the Notice of Appeal was filed. Second, he asks the Commission to provide guidance where an application is brought before a Hearing Officer to apply s. 25(1)(b) to prospectively lift the automatic stay. The Commission agrees, in the circumstances of this case, it is appropriate to rule on the application of the automatic stay of penalty under section 25.
62The Commission concludes the Hearing Officer’s decision to lift the stay was unreasonable as she failed to grapple with two relevant factors set out in Kyle, the only prior case of this Commission offering significant guidance on the application of s. 25(1)(b).1 First, she entirely dismissed the consideration whether any proposed appeal had merit despite the holding in Kyle that this is a relevant factor. Second, she grounded her analysis almost entirely on her assessment of the public perception of a continued paid suspension, without considering the actual prejudice to the parties. While public confidence in police disciplinary proceedings is certainly a factor to consider, the Hearing Officer erred in principle by allowing this consideration to overtake other relevant factors identified in Kyle.
63In Kyle, the Commission observed that s.25 is “a clear expression of the intention of the legislature” and directs statutory decision-making bodies that “in the normal course of events a conviction or disciplinary penalty imposed against a police officer should not be enforced until the conclusion of the appellate process.” The Commission held that this principle, in favour of an automatic stay, had “particular resonance” in two scenarios. First, where the penalty is of such brief duration that an appeal would be rendered meaningless and, second, where the appeal is from a penalty of termination. Ultimately, the Commission set down the following guidance on the application of s. 25(1)(b):
we do agree that there is value in considering the potential merits of an appeal and questions of potential prejudice. If an appeal on the face of it is frivolous or vexatious then section 25 should not be permitted to be used by an officer as a shield against the timely application of a proper disciplinary penalty. On the other hand, if the lifting of a stay would have the practical effect of rendering an appeal meaningless in a particular situation then a police employer should not be allowed to use section 25 to frustrate an officer’s entitlement to seek appellate relief from the Commission.
64In this case, the Hearing Officer held she was not in a position to assess the merit of any potential appeal and moved on to consider the factors she found significant. The Commission finds the Hearing Officer erred by failing to consider the potential merits, or her inability as the decision maker to assess the merits as part of the stay analysis. The focus of s.25 of the SPPA is the preservation of the status quo pending an appeal. It is the prospect of a meritorious appeal that justifies the stay pending appeal. As the Commission held in Kyle whether a party avails itself of appellate remedies in good faith, or merely as a mechanism to frustrate the enforcement of an order should play a role in the analysis.
65This is consistent with the position courts have taken, that "[c]ourts are reluctant to lift statutory stays and the onus lies on the applicant to convince the Court otherwise” (Ramlochan v. D’Souza, 2012 ONSC 4251 at para 16). When courts decide whether to lift an automatic stay when a party appeals from a tribunal decision, such motions are “restricted to cases of demonstrable and unusual hardship to the respondent, and where a reasonable measure of protection can be afforded to the appellants”, and “the court also takes into consideration the merits of the appeal” (Minas v. Adler, 2022 ONSC 3053 at para. 17).
66First, in the circumstances of this case, the Hearing Officer was in a position to conduct an analysis of whether the Appellant proposed arguable grounds of appeal. The Appellant retained counsel (counsel on this appeal) prior to the sentencing hearing, who indicated in correspondence with the Hearing Officer that the Appellant was considering challenging the decision to proceed in absentia before the Hearing Officer herself. Upon concluding that the Hearing Officer had no power to reconsider her own decision, the Appellant’s counsel advised it would proceed to sentencing and seek remedies with respect to the hearing on appeal to the Commission. In his submissions on the Respondent’s s.25(1)(b) application, the Appellant referred to the fact the Hearing Officer was on notice at that time that the Appellant intended to appeal the misconduct decision on grounds related to the procedural fairness.
67Additionally, if the Hearing Officer found she was unable, as the first instance decision maker, to conduct even a threshold evaluation of arguable grounds of appeal, the result should not have been to dismiss this factor outright. Rather the Hearing Officer should have acknowledged her limitations in making a full and fair assessment of whether a s.25(1)(b) order should be made. It was open to her to decline to suspend the stay of penalty at that time because she was unable to assess merit. As noted by the appellant, after a Notice of Appeal was filed and the grounds for appeal were crystalized, the Respondent could then apply to the Commission, to lift the presumptive stay of penalty. It was an error in principle for the Hearing Officer to give no consideration to the merits of an appeal or to her limitations in assessing merit in the circumstances of this case.
68Second, the Hearing Officer erred by failing to analyze and balance the actual prejudice to the Appellant in making her order. She identified the prejudice that could flow to the Respondent during the stay as the continued payment of salary and benefits during an ongoing suspension and the negative impact on the reputation of the police service in the eyes of the public. However, the Hearing Officer failed to give weight to a factor identified in Kyle, which is the prejudice to an appellant when the penalty is one of dismissal. The Commission held in Kyle that the termination of employment pending appeal is a scenario where the presumptive stay has “particular resonance”.
69The Commission finds the Hearing Officer’s error in failing to consider the prejudice to the officer is heightened by her overemphasis on the negative impact on the respondent employer and the public interest. In her reasons for lifting the stay, she found that “no reasonable person in the community would expect his employment to continue pending an appeal” due to the seriousness of his misconduct.
70The Hearing Officer failed to recognize that s.25(1) is, as set out in Kyle, a “clear expression of intention of the legislature” that “in the normal course..[a] disciplinary penalty imposed against a police officer should not be enforced until the conclusion of the appellate process.” Her “reasonable person” analysis is flawed as it disregarded the presumptive intent of s.25(1) and focused on her own assessment, made without evidence, that recent “public demand for suspension of officers without pay” has “exponentially grown.” It was an error in principle for the Hearing Officer to supplant the clear legislative intention that the decision is presumptively stayed pending appeal with her own perception of public sentiment.
71The Respondent’s submissions on the stay motion and the Hearing Officer’s reasons, to a large extent, focused on their perception of the public’s distaste that an officer who has been ordered dismissed continues to be paid pending an appeal. While this matter took just over two years to complete at the hearing stage, the Respondent conceded the Appellant caused virtually none of this delay. There is no other concern or allegation the Appellant abused the hearing process. The Appellant was to remain off duty pending his appeal. The only remaining prejudice is the officer’s continued receipt of pay. Though the Hearing Officer makes her own finding about public perception of officers being paid while suspended, this is not a basis to supplant the legislation without regard to specific prejudice to the actual parties.
72In an appropriate case a Hearing Officer could clearly act pursuant to s.25(1)(b) to prospectively lift the stay of their own decision pending appeal. For example, in cases of inordinate delay or abuse of the hearing process, the analysis of prejudice to the parties may change and a Hearing Officer may find it appropriate, pursuant to s.25(1)(b), to lift a stay of penalty prospectively. None of these factors pertain in the present case to operate as a principled reason to prospectively lift the presumptive stay.
73The Commission concludes the Hearing Officer erred in principle in lifting the stay. She ignored the legislative intent of s.25(1) and the prior jurisprudence of this Commission in prospectively lifting the stay in the circumstances of this case.
ORDER
74Pursuant to s. 87(8)(a) of the PSA, the Commission allows the appeal, revokes the Hearing Officer’s findings of misconduct, and orders that a new hearing take place before a different Hearing Officer. The Commission allows the Appellant’s motion and sets aside the Hearing Officer’s decision lifting the automatic stay of penalty.
Released: March 14, 2024
Laura Hodgson
Emily Morton
Kate Grieves