TRIBUNALS ONTARIO

Ontario Civilian Police Commission

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission civile de l’Ontario sur la police

Citation: Robson v. Waterloo Regional Police Service, 2025 ONCPC 35

Date: 2025-01-09

File: 23-ADJ-011

Between:

Andrew Robson

Appellant

and

Waterloo Regional Police Services Board

Respondent

and

Waterloo Regional Police Services Chief Board of Police

Respondent

and

Waterloo Police Service Association

Intervenor

and

Police Association of Ontario

Intervenor

Decision

Panel: E. Morton, Vice Chair L. Hodgson, Vice Chair C. Osterberg, Vice Chair

Participants: C. Jones and L. Pearce, 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

K. Shao, counsel for the Police Association of Ontario

Held by Videoconference: October 11, 2024

IntroductioN

1This appeal to the Ontario Civilian Police Commission (the Commission) arises under s. 47(5) of the Police Services Act, R.S.O. 1990, c. P.15 (the Act).¹ Andrew Robson (the Appellant) is appealing 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.

2In a motion decision dated February 2, 2024, the Commission added the Chief of the Waterloo Regional Police Service (Chief) as a Respondent to the appeal and allowed the applications of the Waterloo Regional Police Association (WRPA) and the Police Association of Ontario (POA) for intervenor status on the appeal.

3In a Case Conference Report and Order dated May 15, 2024, the Commission ordered a hearing on the single preliminary issue of whether the s. 47(5) appeal is to proceed before the Commission as a hearing de novo, an appeal on the record, or in some other format.

DISPOSITION

4For the reasons that follow, the Commission is satisfied that s. 47(2) first required an evidentiary hearing before the Board, with an appeal under s. 47(5) being heard on the record of the Board’s proceeding.

BACKGROUND

5Much of the relevant background is set out in the Commission’s February 2, 2024 motion decision. As a backdrop to the issues raised in this decision, the Commission highlights the following information about the process of the s. 47(2) hearing before the Board. As the Commission has not received a record of the s. 47(2) proceedings, this information is taken from the June 8, 2022 and May 13, 2023 decisions of the Board and the submissions of the parties on this and the previous motion.

6As set out more fully below, under s. 47(2) of the Act, the Board may discharge an employee if, after holding a hearing, it determines the employee is mentally or physically disabled, incapable of performing duties and their needs can not be accommodated without undue hardship. Here, the s. 47(2) process began on August 13, 2021 when the Chief purported to initiate, or “apply”, for a s. 47(2) determination from the Board. The Board then “elected to constitute a panel of three board members” to conduct the Appellant’s s. 47(2) hearing. The s. 47(2) process continued between August 13, 2021 to May 15, 2023, the date the Board released its decision that is the subject of this appeal. The Appellant had at one point consented to have the s. 47 hearing in writing but withdrew that consent, advising he understood the WRPA would be involved in his representation.

7In March of 2022 the WRPA sought intervenor status at the s. 47(2) hearing to make submissions on several bases, including the interpretation of s. 47 of the Act and the Appellant’s medical records, as well as the Appellant’s capacity to participate in the s. 47(2) hearing. The Board, in an interim motion decision dated June 8, 2022, granted the WRPA intervenor status on a more limited basis, restricting it to making submissions on the legal interpretation of s. 47 of the Act. In the same decision, noting that the Appellant had “exercised his right not to arrange formal legal representation”, the Board considered it necessary to appoint an amicus to make representations to the panel of the Board and to assist the Appellant with presenting his case, should he wish.

8Following a case conference on September 6, 2022, the panel of the Board adjourned the proceedings to provide the Appellant an opportunity to produce a medical report concerning his capacity to attend the s. 47 hearing. The panel decided on February 7, 2023 not to grant a further adjournment and to proceed with a written hearing, which the panel found was sufficient to meet its duty to accommodate the Appellant’s participation in the hearing. On March 30, 2023, the WRPA through its president provided further medical information concerning the Appellant’s ability to participate in the hearing. Counsel for the WRPA wrote to the panel seeking an adjournment of the written hearing, amicus recommended an adjournment and the Chief agreed to the request pending further medical information. The panel did not grant the adjournment, which would have entailed extending the due date for receipt of written submissions and proceeded with the written hearing.

9In its May 15, 2023 decision, the panel of the Board addressed the reasons for denying the adjournment request, which included the fact it had addressed the issues of adjournment and accommodation in detail in its February 3, 2023 decision. It also noted that the Appellant had participated in a written hearing for unrelated litigation. The Board proceeded with a written hearing and issued a decision after only having received substantive submissions from the Chief and not the Appellant. The panel considered two reports tendered by the Chief (dated April 5, 2017 and May 11, 2021) at the written hearing. The Board’s May 15, 2023 decision addressed its procedural decision to proceed with the hearing in writing and provided full reasons for its decision to dismiss the Appellant pursuant to s. 47(2) of the Act.

10The Appellant appealed to the Commission pursuant to s. 47(5) of the Act, seeking an order revoking the Board’s decision. The grounds of appeal listed include the Board’s alleged errors in failing to afford the Appellant procedural fairness and natural justice in its decision-making process, failing to accommodate the Appellant in that process, assuming the Chief had full and independent party status at the s. 47 hearing, and unduly limiting the scope of the WRPA’s role in the process. In the Notice, the Appellant also raises a number of substantive grounds of appeal, including the Board’s impermissible reliance on the medical reports filed at the written hearing and the Board’s misapprehension of the evidence and misapplication of the law governing the s. 47(2) determination. In the Notice, the Appellant seeks to rely on the “record of materials before the Board” including correspondence, submissions, medical reports and decisions of the Board, as well as evidence that was not heard by the Board.

11This brief background is relevant to the decision on the present issue whether or not s. 47(5) of the Act requires the Commission hearing to proceed as an appeal on the record of the hearing before the Board or to proceed as a hearing de novo.

STATUTORY FRAMEWORK

12Section 47(1) of the Act expressly requires police services boards to accommodate employees who are unable to perform their essential duties due to a mental or physical disability in accordance with Ontario’s Human Rights Code. Section 47(2) requires a board to hold a hearing if it intends to discharge an employee under s. 47:

(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 position, 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.

13Section 47(5) allows an employee discharged under s. 47(2) to appeal to the Commission. Sections 47(6)-(8) set out the Commission’s powers following a hearing and establish procedural requirements in relation to the appeal:

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.

(7) The Commission shall promptly give written notice of its decision, with reasons, to the appellant and to the board…

(8) No member of the Commission shall participate in the decision unless he or she was present throughout the hearing of the appeal and, except with the consent of the appellant, no decision of the Commission shall be given unless all members who were present throughout the hearing participate in the decision.

14The word “appeal” is used in various Parts of the Act. For example, parties to various first-instance hearings held by the Commission under the Act have a right to “appeal” the Commission’s decision to the Divisional Court: see for example, ss. 23(11), 25(6), 88(1).

15The only provision in the Act other than s. 47(5) that confers a right to “appeal” a decision to the Commission is s. 87(1), which allows various parties to appeal first instance misconduct decisions under Part V of the Act to the Commission. Section 87(5) specifies that discipline appeals shall proceed on the existing record, subject to the Commission’s discretion to receive additional evidence as it considers just.

16Those first instance hearings must be conducted in accordance with the Statutory Powers Procedure Act, R.S.O. 1990, c. S22 (SPPA), along with other procedural requirements, as required by ss. 82 and 83 of the Act. Section 20 of the SPPA requires decision-makers to compile a record of proceeding, which must include certain prescribed material including, among other things, the evidence before the decision-maker and any decisions and reasons they have given.

17While the SPPA applies to a s. 47(5) appeal before the Commission, it does not apply to a board when it makes a s. 47(2) decision by virtue of s. 37 of the Act.

ANALYSIS

Overview of the parties’ positions

18The Appellant and Respondents agree that determining the nature of the hearing before the Board and Commission is a matter of statutory interpretation. They also agree that the Commission must read the words of the Act in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the [legislature]”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC). However, they disagree regarding the result of such an interpretation in relation to the proper hearing format for a s. 47(5) appeal.

19The Appellant submits that the Act does not contemplate s. 47(2) as a quasi-judicial hearing, and that s. 47(5) can “only be interpreted to require a first instance evidentiary hearing before the Commission.” It raises a number of arguments in support of its position, including that:

• the text of s. 47 supports a finding that the legislature intended the hearing before the Commission to be a hearing de novo;

• the interpretation is consistent with the presumption that the legislature intended to be procedurally fair; and,

• the nature of the inquiry made by a board during a s. 47(2) hearing supports a finding that a hearing de novo is required.

20The PAO and WRPA adopt the Appellant’s submissions regarding the proper interpretation of section 47. As an alternative argument, also adopted by the Appellant, the intervenors focus their submissions on the applicability of values in the Charter of Rights and Freedoms (Charter) in the interpretation of s. 47.

21The Respondents submit that s. 47 is clear that the Board is required to hold a first instance hearing under s. 47(2), and that an appeal under s. 47(5) must proceed as an appeal on the record of the Board’s decision. They further submit that this interpretation is consistent with case law interpreting this provision and its predecessors, as well as case law interpreting other statutes that confer the right to appeal a statutory decision.

22The Respondents argue that while it is open to the Appellant and intervenors to argue that the hearing was procedurally unfair when the appeal is heard on its merits, the May 15, 2023 decision was made “after a hearing” as required by s. 47(2). The subject of this appeal must be whether the Board’s decision was procedurally unfair or otherwise unlawful, having regard to the record that was before the Board when it made its decision.

23For the reasons that follow, the Commission finds that a s. 47(5) appeal is to proceed as an appeal on the record of the Board’s decision. Applying the modern approach to statutory interpretation, the Commission finds that legislature intended that a full evidentiary hearing first take place before a board under s. 47(2), with an appeal to the Commission proceeding on the record of that decision.

A contextual interpretation of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p15/latest/rso-1990-c-p15.html) establishes a legislative intent that a s. 47(5) appeal proceed on the record of a board’s proceeding

24Section 47(5) does not specify that the “appeal” before the Commission take place “on the record”, nor does it specify that the appeal be heard “de novo.” As noted, the parties agree that determining the proper format of this appeal is a matter of statutory interpretation and legislative intent. In the Commission’s view, the former interpretation is supported by a contextual interpretation of s. 47 and the Act more broadly.

25The Appellant submits that s. 47(5), read in the context of the overall statutory scheme and the objects of the Act, can “only be interpreted to require a first instance evidentiary hearing before the Commission.” They argue that ss. 47(1) and (2) place the Board in the position of deciding on its own conduct as the Appellant’s employer, and that s. 47(5) makes the Board a respondent on the appeal. The Appellant relies on the rule that silent or ambiguous legislation will generally be interpreted in a manner that assumes the legislature intended the process to comply with the rules of natural justice. The Commission will address the Appellant’s arguments regarding the nature of the Board’s inquiry and its lack of institutional independence in greater detail below.

26The Appellant also points to s. 47(8), which prohibits members of the Commission who did not hear the appeal from participating in the decision. They contend that such a provision would have been unnecessary if the legislature intended the appeal to based on a written record and oral argument alone.

27The Appellant also contends that contrasting s. 47(5) appeals with s. 87 disciplinary appeals under the Act establishes a legislative intent that a s. 47(5) appeal proceed as a hearing de novo. They submit that while the SPPA applies to both proceedings by virtue of section 22(3) of the Act, only disciplinary appeals are expressly directed by s. 87(5) to proceed as appeals on the record, subject to a discretion to admit new evidence. They submit that the deliberate choice to use the term “appeal” in s. 47(5), and to apply the SPPA to a s. 47(5) proceeding without an express requirement that it proceed as an appeal on the record, establishes a legislative intent that the Commission hold a de novo hearing.

28The Appellant submits their position is further supported by the fact that the Act establishes a number of procedural requirements in relation to first instance discipline hearings under Part V that do not apply to s. 47(2) hearings, including the requirement to record the proceeding as well as the appointment of a prosecutor. They submit that all hearings before the Commission to which the SPPA applies, other than s. 87 appeals, are first instance hearings at which the Commission receives comprehensive evidence. This suggests a legislative intent that the record in a discipline proceeding be developed at the first hearing, with the appeal to the Commission proceeding on the record. On the other hand, they argue, the Act contains very little guidance regarding the s. 47(2) hearing procedure, and thus the legislature must have intended an appellant officer to call evidence before the Commission in accordance with the broad procedural rights granted by the SPPA. In the Appellant’s submission, the lack of a comparative scheme legislating the creation of a record in s. 47(5), along with the lack of language specifying the appeal is from the record, signals a legislative intention that a s. 47(5) appeal is to be heard de novo.

29The Commission disagrees. In its view, an important indicia of legislative intent that a s. 47(5) appeal proceed on the record is the requirement that the board decide on discharging a disabled officer only after “holding a hearing.” We find it implausible that the legislature would require a board to hold a hearing and to receive evidence from at least two medical practitioners if it intended the Commission to hold a hearing de novo. The Commission also notes that unlike the scheme established by s. 47, in other areas of the Act, particularly where there has been no prior hearing held, the Commission is expressly empowered to hold a “hearing” or words to that effect: 23(1), 25(4), 25(4.1), 25(5), s. 39(5), 69(8), 77(7), 116(1). Although the terms of s. 47(8) make it clear that the appeal proceeds as a “hearing” before the Commission, we find it significant to the exercise of statutory interpretation that the legislature did not use the same or similar words for a s. 47(5) hearing that it did elsewhere in the Act where a first instance hearing before the Commission is clearly required. The Commission recognizes that s. 87(2) also contains an express requirement that it hold a hearing in relation to disciplinary appeals, however as noted s. 87(5) stipulates they are to proceed on the record.

30Another indication of legislative intent is found in the Commission’s remedial powers under s. 47(6). One of the Commission’s powers in s. 47(6) is to order a board to “rehear the matter”. The Commission finds it implausible that the legislature would have included an authority for a matter to be sent back to the board for a re-hearing if it intended the Commission to hold a hearing de novo. To the contrary, the Commission finds that this suggests a legislative intent that a full evidentiary hearing first take place before the board. Taken together, we find that the clear terms of ss. 47(2) and (6) lend strong support to the conclusion that a full hearing first take place before the board decides under s. 47(2), and an appeal of that decision to the Commission under s. 47(5) proceeds as an appeal on the record.

31The Commission is not persuaded that contrasting section 47 with other areas of the Act supports a contrary interpretation. The Commission acknowledges that the inclusion of an express requirement to hold an appeal on the record in relation to disciplinary appeals, but not in relation to s. 47(5) appeals, lends some support to the Appellant’s interpretation. To a lesser extent, the lack of prescribed procedure in relation to a s. 47(2) hearing also lends some support to the Appellant’s interpretation. However, we are ultimately persuaded by the legislative intent evinced by the clear terms of s. 47(2) and (6), discussed above.

32The Commission does not agree with the Appellant’s submission that s. 47(8) (which provides that no member of the Commission can participate in the decision unless present throughout the hearing) makes it clear that a s. 47(5) hearing proceed as a hearing de novo. In our view, s. 47(8) codifies the fundamental administrative law principle that “he who hears must decide”: Ellis-Don v. Ontario (Labour Relations Board), 2001 SCC 4 at para. 66. Section 47(8) of the Act addresses the foundational principle enjoining discussion in the decision making process by people who have not heard the matter. This principle would apply whether or not the Act contained the express language of s. 47(8) and would apply whether the hearing proceeded as an appeal on the record or a hearing de novo. The Commission finds that the legislature’s choice to codify this long standing principle provides little interpretive guidance on the issue to be decided. The Appellant provided no authority to support the proposition that it should.

33While not pertinent to the interpretation of the legislation currently at issue, the Commission notes that the Act’s successor, the CPSA contains a provision requiring a board to hold a hearing and make a determination before terminating or retiring an officer due to a disability, however it does not appear to include a right to appeal that decision: CPSA, s. 88.

34The Commission therefore finds that the legislature intended police services boards to conduct a full evidentiary hearing under s. 47(2).

Prior s. 47 case law supports the Commission’s interpretation

35The Commission holds this interpretation of s. 47(5) is consistent with its own case law. In prior cases, there has been a recognition on the part of the Commission that an evidentiary hearing, with procedural rights afforded to the subject officer, must occur before the board makes a decision under. 47(2).

36In Shaw v. Windsor Police Service Board, December 3, 2002 (OCCPS) (Shaw), the Commission found that the respondent board had dismissed a civilian member of the service without first holding a hearing. The Commission noted that the officer had the right to test the board’s medical evidence at the hearing and to appeal to the Commission if it disagreed with the board’s findings (at pp. 7-8):

If Deborah Shaw has an acknowledged disability and asserts her right to be accommodated and return to work then any disagreement on these points must be dealt with by the Service using the statutory process established by s. 47. This dispute cannot be reshaped into a matter of contractual interpretation arising from abandonment.

The opinions of two medically qualified practitioners is required. The Board must assess these opinions and then determine whether or not it can accommodate Ms. Shaw without undue hardship. If there is any question in this regard, then prior to discharge, Ms. Shaw is entitled to a hearing to permit her to test the medical evidence and make submissions with respect to any possible outcome. If she does not agree with the Board’s findings she is entitled to appeal to the Commission.

37The result in Shaw was that, as the process of a hearing into the employee’s accommodation did not occur, the Commission remitted the matter to the Windsor Police Services Board with a direction that it be dealt with under s. 47. Further, the Commission held that if there was any dispute about the opinions of the two medical practitioners regarding the appellant’s capacity to perform her duties in the future or to be accommodated without undue hardship “a hearing must proceed under section 47(2).” In Shaw, the Commission recognized that a full hearing must be held under s. 47(2) were there any dispute between the parties on the capacity and accommodation issues. The hearing required procedural rights for the affected employee to test evidence and make submissions in the s. 47(2) process before the Board and to appeal to the Commission if she disagreed with the Board’s findings.

38In Francis v. Haldimand-Norfolk Regional Police Services Board, June, 1993 (OCCPS) (Francis), the officer appealed a police services board decision dismissing him because his disability could not be accommodated short of undue hardship. The board did not provide written reasons and indicated in correspondence only that it accepted the evidence of two legally qualified medical practitioners and found it was not able to accommodate the officer. The Commission allowed the appeal as it found one of the two opinions relied on did not come from a “legally qualified medical practitioner.” The Commission ordered a rehearing before the board. In rejecting an alternative argument that the board could not have relied on the reports submitted as they were inadmissible, the Commission observed that if the officer had been unhappy with the content of the reports, he “could quite easily have asked that the witnesses be called to testify in order that he could cross-examine them.” Francis at p. 7. The Commission in Francis clearly envisioned the existence of a full hearing process before a board decided on dismissal.

39The Respondents also rely on the Divisional Court’s decision in Cardinal and Board of Commissioners of Cornwall Police, 1973 CanLII 714 (Cardinal). Though decided under a predecessor provision, the Respondents submit Cardinal provides strong support for the proposition a s. 47(2) hearing before a board must be a full and fair hearing based on evidence. This long-standing requirement that a quasi-judicial hearing be held before a board, they argue, supports the interpretation of an appeal from a decision to discharge an officer proceeds on the record of that hearing.

40In Cardinal, a board discharged the appellant under the former Police Act, R.S.O. 1970, c. 351 (Police Act). The relevant provisions in Cardinal required hearings to be held for certain disciplinary matters, but s. 47(2)’s predecessor provision did not expressly require a hearing. The legislation allowed officers to appeal both discipline decisions and board decisions to terminate due to disability to the Ontario Police Commission (OPC), a predecessor of the Commission. In Cardinal, the board had not held a hearing, and instead issued a letter that referred to two medical reports. Mr. Cardinal appealed to the OPC, arguing that the Board had erred by not holding a hearing. The OPC upheld the order discharging the appellant.

41On review, the Divisional Court held that the board was required to hold a hearing notwithstanding that the legislation did not expressly require one. It further held that the express requirement to hold hearings for disciplinary matters did not necessitate a conclusion that hearings were not required in cases where the officer was being discharged due to a disability.

42The Court took a principled approach in determining that a hearing was required. It noted the unique status of a police officer, and also that absent “special circumstances”, the Police Act required the OPC to decide the appeal “from the record”, which presupposed that a hearing would have been held. It further held that the importance of the decision on the appellant’s rights and interests favoured an interpretation that a hearing before the board was required. The Court wrote the determination at issue was “a most serious decision affecting as it does the right of employment of a police officer” and required “a most careful hearing before any decision is made.”

43The Respondents submit that, despite differences between s. 47 and its predecessor under the Police Act, Cardinal is clear guidance from the Divisional Court that a hearing to decide on whether to discharge a disabled officer is a quasi-judicial hearing that is to take place before the board at first instance. They also rely on OPC decisions that followed and applied Cardinal: see MacPherson and the Board of Commissioners of the Police of the City of Ottawa, October 11, 1984 (OPC); DeBathe and the Council of the Town of Walkerton, March 28, 1984 (OPC).

44The Appellant submits that the Cardinal line of cases is of no assistance to the Commission because of material differences between the two statutes, notably the lack of a requirement that a s. 47(5) appeal proceed on the record. They contend that the subsequent removal of that provision shows that the legislature intended that an appeal before the Commission proceed as a hearing de novo.

45Given that the predecessor legislation at issue in Cardinal expressly required the appeal to take place on the record, and that there is no analogous provision in the Act, in the Commission’s view the case is not determinative on the issue at hand. However, as a matter of principle, the Commission agrees that Cardinal is instructive of the nature of rights at stake in a s. 47(2) hearing, and that an officer is entitled to significant procedural protections in what is meant to be “a most careful hearing.”

The use of the word “appeal” is not determinative

46Both the Appellant and Respondents submit that the use of the word “appeal” in s. 47(5) supports their respective interpretations of the provision. It is clear, based on a review of other provincial statues and case law, that the mere inclusion of the word “appeal” in s. 47(5), considered in isolation, does not resolve the issue of whether the legislature intended an appeal on the record or a hearing de novo.

47The Respondent Chief relies on a body of case law that stands for the principle that where a statue is silent as to the nature of an appeal power, a presumption that the appeal takes place on the record applies.

48The Appellant, on the other hand, points to a number of statutory regimes in Ontario that create a right of “appeal”, but where the statute itself makes clear the appeal takes the form of a de novo hearing. The Appellant cites as an example the Occupational Health and Safety Act, RSO 1990 c. 01, s. 61, which provides for an “appeal” from an inspector’s order, but the same enabling provision explicitly sets out a process for a de novo hearing on appeal. There is no “hearing” required before an inspector makes its order, and the statute itself circumscribes the reasons that must be given as the basis for the order.

49There are many other provincial statutes that provide for an “appeal” from a statutory decision and that also explicitly provide that the appeal is to be heard de novo: see, for example, Animals for Research Act, R.S.O.1990, c. A. 22, s. 9(3); Environmental Protection Act, R.S.O. 1990, c. E. 19, s. 45(3); Farm Implements Act, R.S.O. c. F. 4, s. 8(4); Land Titles Act, R.S.O. c. L. 5, s. 26. The Commission also does not find these examples of legislation helpful to the present analysis, as they provide, unlike s. 47(2) of the Act, that the appeal is to be held by way of a new hearing.

50In addition, the Appellant and intervenors point to case law where decision makers in statutory appeals have interpreted their home legislation and found a first instance hearing is required, even without clear statutory language requiring a de novo hearing: Kawartha Pine Ridge District School Board v. Grant, 2010 ONSC 1205 (Div. Ct.) (Kawartha) aff’g (J.G. v. Kawartha Pine Ridge District School Board, 2009 CFSRB 16; Monga v. Registrar, Private Investigators and Security Guards, 2021 CanLII 97101 (ON LAT) (Monga); Gunn v. Halton District School Board, 2012 ONCJ 684 (Gunn). In these cases, though the statute did not explicitly provide that the “appeal” was intended to be heard de novo, evidentiary hearings were nonetheless held because there were no, or extremely brief, reasons given by the statutory decision maker appealed from, and no evidentiary record was provided to the appellate tribunal: Monga at para. 16, Kawartha at paras. 35-36; Gunn at paras. 45-47; 53.

51In the Commission’s view, while the Appellant’s cases support the proposition that the word “appeal” can in fact result in a hearing de novo, they are also distinguishable. The determinations in the decisions involving other statutes are of limited assistance. They arise out of different statutory wording, different factual contexts, different procedures leading to the first instance decision, and often sparse reasons.

52Similarly, the Commission accepts the Respondent Chief’s submission that there is a body of jurisprudence that stands for the proposition that a statutory appeal is presumed to take place on the record absent a clear statutory mandate to the contrary: see, for e.g., Santasieri v. Manitoba (Minister of Finance), 2015 MBCA 71; Ford v. Toronto (Compliance Audit Committee), 2012 ONCJ 91. However, the Commission ultimately finds it does not need to resort to the presumption given that a contextual interpretation of s. 47 clearly supports a finding that a s. 47(5) appeal proceeds on the record.

The nature of the inquiry does not support the Appellant’s interpretation

53The Appellant makes a number of arguments that the legislature must have intended the Commission hold a de novo hearing given the nature of the inquiry in s. 47 of the Act, and the Board’s status as the Appellant’s employer. The Appellant, in written and oral submissions, characterized the s. 47(2) decision as one made “in the normal course” of the employer-employee relationship, and likened the decision in the non-policing context to a dismissal letter that would then attract first instance review under the Human Rights Code, R.S.O. 1990, c. H. 19 (Human Rights Code). The Appellant argues that a s. 47(5) appeal, at minimum, requires a meaningful opportunity for the parties to present and test evidence relevant to whether the Appellant is incapable of performing his essential duties, what other workplace duties he is capable of performing and whether the Board as employer has established that accommodating the Appellant would amount to undue hardship.

54For the reasons given above, the Commission finds the legislature intended the hearing of these issues – whether the Appellant was accommodated within the meaning of the Human Rights Code and whether he can be accommodated to by his employer – first take place before the board. The crux of the Appellant’s argument about the nature of the inquiry is that the Board, as employer, is not positioned to make these determinations about its own conduct.

55It has been established that, given a police services board’s responsibility to appoint members of a police service, it is the employer of members of a service: Shaw v. Phipps, 2010 ONSC 3884, aff’d 2012 ONCA 155. However, the board has multifaceted powers and duties; it is not limited to acting as an employer. The Act provides police services boards with powers in other contexts to make decisions after hearings (e.g., s. 68(8) of the Act). The power to hold a hearing under s. 47(2) is one example of the statutory power given to boards to hold quasi-judicial hearings.

56The Appellant argues that the fundamental rights at issue require a large and liberal interpretation of s. 47(5) that gives the Commission a power to hold a first instance hearing. It is not disputed by any party that the matter at issue here – termination of an officer’s employment due to disability – is one of fundamental importance. Nor is it disputed that, in reaching the decision to terminate the Appellant, the determination fundamentally requires consideration and application of the Human Rights Code, a statute that has a special and quasi-constitutional status, and that prevails over other legislation, absent clear legislative pronouncement to the contrary.

57However, the Appellant’s argument presupposes that the only way to interpret s. 47 of the Act in accordance with the Human Rights Code is to require a full, first instance hearing before the Commission. The Appellant writes as follows:

To interpret the isolated word “appeal” in PSA subsection 47(5) – absent any other indicia of legislative intent- as effectively foreclosing any opportunity for Robson to tender evidence at the hearing into an alleged violation of his fundamental human rights would represent a marked departure from long settled Supreme Court jurisprudence and the primacy guaranteed by subsection 47(2) of the Human Rights Code.

58The Commission does not agree that the only way to interpret s. 47 of the Act in a manner that gives full effect to the primacy of the Human Rights Code is to find “appeal” in s. 47(5) requires an evidentiary hearing and to ignore the requirement that a hearing be held under s. 47(2). The Commission finds that giving a large and liberal interpretation to the requirement that a hearing be held before a board also accomplishes this important objective. Section 47(2) is silent on the procedure that must be used to reach a s. 47(2) decision.

59We see the real complaint here is the Board, as employer, cannot conduct a fair s. 47(2) hearing as that “would have the effect of allowing it to become the judge of its own case.” Again, it is established the police services boards are employers. The statute requires the board to hold a hearing into whether an employee can be accommodated. The case law has interpreted the “hearing” before a board as one that is quasi-judicial in nature. The real question is whether there is a legal principle that prohibits a board from, as was the case here, conducting a quasi-judicial hearing.

60First, the Appellant’s submission that it is a “fallacy” that, in terminating a disabled employee under s. 47, the Board can serve as an independent adjudicative function does not align with the authority from Cardinal that a board is to conduct a “most careful”, “quasi-judicial” hearing in making this determination. The Commission has found the inclusion of the requirement a board only make a decision “after holding a hearing” compels a conclusion that the “appeal” to the Commission is on the record of that hearing. It is clear that, given the issue at stake, the hearing before the Board would attract a high degree of procedural fairness.

61The Appellant has not directed the Commission to any authority holding that the Board cannot adjudicate the s. 47(2) issue because it is the Appellant’s employer and thus would be adjudicating its own conduct in the s. 47(1) analysis. The Appellant points to the Court of Appeal for Ontario decision in Brown v. Waterloo Regional Board of Commissioners of Police, 1980 CanLII 1578 (Brown). In Brown, the Court considered the appeal of a police chief who had been dismissed under the Police Act and its Regulations following a report from the OPC. The report resulted in a hearing before the board, which in turn resulted in the termination of the chief by the board. The Divisional Court agreed the hearing before the OPC lacked fairness – there were issues regarding a conflict of interest of counsel acting for both the appellant and the board, as well as the non-disclosure of board information and the inability of the appellant to call evidence. The Court ordered a new hearing before the board. The Divisional Court directed the hearing even though s. 27 of the Regulation did not contain positive language requiring a hearing in these circumstances.

62The Court of Appeal for Ontario considered, among other issues, whether the Divisional Court had erred by ordering the board to hold a hearing when not specifically required by the statute. The majority of the Court held that there was no error as the board was required, as a matter of natural justice, to provide a full and fair hearing, and to act in a quasi-judicial role.

63The majority had a concern with remitting the matter of the termination of the appellant’s employment to the board at all in that case because of an apprehension of bias. There was a factual issue as to whether one of the bases on which the OPC had recommended the appellant’s dismissal had actually resulted from instructions to the appellant from the Board. It was in that context that the majority of the Court wrote that it is “basic that an adjudicative body should not have an interest in the result of the adjudication” as “the Board would have the duty of deciding as between itself and Brown who was to blame for the impugned circumvention.”

64The Commission does not read Brown as standing for the principle that a board cannot act as an adjudicative body in matters dealing with employment. Rather, the majority’s concern that the “serious issue cannot properly be left to an adjudicative body with an interest in vindicating itself” lay in the particular facts of that case, which gave rise to a reasonable apprehension of bias. It does not stand for a broad principle that a police services board cannot adjudicate employment matters.

65The Appellant also points to the Supreme Court’s decision in Penner v. Niagara Police Services Board, 2013 SCC 19 (Penner). In that case, the Court held the doctrine of issue estoppel should not have been applied to bar a public complainant’s civil claim against the police based on the fact that a hearing officer had concluded that the same underlying misconduct had not been proven in a Part V discipline proceeding.

66Among other factors, the majority found using the decision of the hearing officer, who was the Chief’s designate, to ultimately exonerate the Chief in the civil claim was, in the specific context of applying issue estoppel, an affront to the basic principles of fairness. Under the statutory framework in Penner, the Chief investigated and determined whether a hearing was required following the submission of a public complaint, and appointed the prosecutor, investigator and hearing officer if a hearing was required. The majority held that applying the decision finding that misconduct had not been proved to estop a civil claim “had the effect of permitting the Chief of Police to become the judge of his own case, with the result that his designates decision had the effect of exonerating the Chief and his police service from civil liability”: Penner at para. 66. This was “a serious affront to the principles of fairness.”

67The holding in Penner does not translate to the current issue before the Commission, nor has it been interpreted to mean that police service boards can no longer hold hearings and make decisions as required by the Act. In Penner, the court recognized that the unfairness did not arise from the statutory duties of the Chief or the Board but specifically considered the objectivity of the Chief in the fairness assessment for issue estoppel. The Court wrote at paragraph 67:

We emphasize that this unfairness does not reside in the Chief of Police carrying out his statutory duties. … The unfairness that concerns us only arises at the point that the Chief’s (or his designate’s) decision that there was no police misconduct in a disciplinary context is used for the quite different purpose of exonerating him, by means of issue estoppel, from civil liability relating to the same matter.

68The Commission does not agree that the nature of the accommodation inquiry leads to a conclusion that the legislature intended the Commission conduct a de novo hearing on these issues under s. 47(5). While we agree that the nature of the inquiry is a relevant factor, it does not displace what the Commission considers to be the clear legislative intent underlying s. 47.

69Again, nothing prevents the Appellant from arguing on an appeal to the Commission that the Board’s process and decision was fundamentally flawed. They can argue that the Board failed to meet the duty of fairness given the nature of the proceeding. However, the Commission is not persuaded by the Appellant’s argument that the Legislature intended the Commission to grapple with these issues in the context of a hearing de novo.

70The Appellant points out that in other employment contexts, accommodation-related determinations take place at a first instance hearing that is a step removed from the decision of the employer. In the context of unionized employees, a labour arbitrator or the HRTO hears and determines these matters. For non-union employees, they are generally heard and determined by the HRTO or Superior Court of Justice. The Appellant’s argument is that, as the Board is the employer, it must be the case that the legislature intended the Commission, like the first instance decision-makers in other contexts, also hear evidence and make a first-instance determination on the issues of accommodation and undue hardship.

71The difficulty with this argument is again that the legislature expressly required the board to first hold a hearing, and the Commission has the discretion to order that it “rehear” a matter. We have found above that these demonstrate a legislative intent, supported by subsequent case law discussed above, that the board is the entity that first holds a hearing, with the right to appeal to the Commission. The need for boards to hold full hearings under s. 47(2) and its predecessor legislation has been recognized by the Divisional Court and this Commission. The Commission is not satisfied that nature of the inquiry or a lack of institutional independence necessitates a finding that a s. 47(5) appeal hearing before the Commission proceeds a hearing de novo.

72The Commission recognizes the complex and significant interests at play in this appeal. The grounds of appeal engage the issue of how the s. 47(2) hearing should have unfolded, given the Appellant’s rights to a procedurally fair process, and the quasi-constitutional interests at play in the Board’s decision. The Commission also recognizes that in this case, based on information currently before the Commission, the record upon which the appeal will be based is not robust, as the hearing took place in writing and without participation of the Appellant or the WRPA.

73However, the Commission does not agree that these particular facts supplant the conclusion that s. 47(2) required a hearing before the Board and that the record of that hearing, including the Board’s decision, is the subject of this appeal.

74Moreover, nothing prevents the Appellant and the intervenors from arguing that, based on the record of the hearing and the Board’s May 13, 2023 decision, the Board failed to grapple with issues such as what other workplace duties the Appellant was capable of performing at the time of the decision, and whether it had been established that accommodating the Appellant would amount to undue hardship. Finding that s. 47(5) creates a power to hear an appeal on the record from a hearing below does not preclude the Commission from adjudicating issues such as whether the process below was procedurally fair and whether the Board erred in making factual or legal findings. The Commission notes again that in Shaw and Francis, supra, the Commission found flaws in either the process or the nature of evidence relied upon by a board and in both cases ordered a rehearing before the board.

75The Commission makes the following further observation. Throughout their submissions, the Appellant stated that, if conceived as an appeal on the record, a s. 47(5) appeal is a “narrow appeal” or that it is necessarily circumscribed to “the Employer’s own record.” The Commission has decided it is not the legislature’s intent that it hold a full de novo evidentiary hearing. However, that does not mean the Appellant is “circumscribed” to only litigating the narrow issue of whether the Board’s May 13, 2023 decision is reasonable based on the evidence before it at that written hearing. The Appellant has given notice of a number of procedural and evidentiary issues it submits the Commission must decide on this appeal, including whether the Board erred by deciding to hold a written hearing rather than granting an adjournment request, and whether the two reports from legally qualified medical practitioners were admissible. It is also open to the Appellant to argue the Commission has the discretion to admit fresh evidence in the context of this appeal: Francis, supra.

[Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) values does not result in a different interpretation

76The Appellant, the WRPA, and the PAO submit that the Act is clear regarding the format of a s. 47(5) appeal. They submit in the alternative that if the Commission finds the Act is ambiguous in that regard, that the ambiguity ought to be resolved in favour of the Appellant’s interpretation according to Charter values.

77It is well-settled that administrative decision makers are required to consider Charter values relevant to the exercise of their discretion: Doré v. Barreau du Quebec, 2012 SCC 12 at para. 24; Commission scolaire francophone des Territoires du Nord-Ouest and A.B. v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 at paras. 64-65.

78The WRPA argues that the Commission’s interpretation of its home statute is a discretionary decision. It says that because s. 47 is silent regarding the appeal format, and because the Commission has the authority to govern its own processes pursuant to s. 25.0.1 of the SPPA, the Commission has discretion in terms of how the appeal proceeds. The Appellant adopts the WRPA’s submission on this point.

79The WRPA submits that it is the Appellant’s exclusive bargaining agent responsible for negotiating the terms and conditions of his work. The WRPA’s representation of the Appellant extends to the workplace protections engaged in this appeal and has an interest in the accommodation inquiry mandated under ss. 47(1) and (2) of the Act. The WRPA argues that as a union is a necessary party to the accommodation process (Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC)), this appeal engages the issue of the exclusion of the WRPA from the accommodation inquiry, both procedurally and substantively. The engagement of this issue, in turn, engages the values underlying s. 2(d) of the Charter. The Commission ought to favour the interpretation that s. 47(5) requires a hearing de novo because such an interpretation is consistent with the Charter.

80The WRPA points to the Divisional Court’s decision in Kawartha, supra, to support its position that the issue of appeal format is a discretionary decision for the Commission.

81Similarly, the PAO submits that the Commission must resolve the ambiguity in s. 47 with reference to Charter values. In the PAO’s submission, this exercise engages the values underpinning the s. 15(1) Charter value of equality given that officers who face discharge due to a disability are afforded fewer procedural protections under the Act than an officer discharged for discipline under Part V.

82The PAO submits that because officers subject to a s. 47(2) hearing do not enjoy the robust procedural protections that apply to discipline proceedings, the Act creates a discriminatory distinction between members facing misconduct proceedings and employees facing discharge due to a disability. The PAO says an interpretation that s. 47(5) requires a de novo hearing is an interpretation consistent with the Appellant’s right to be free from discrimination pursuant to s. 15 of the Charter. The Appellant adopts PAO’s submission on this point.

83Addressing the WRPA’s submission first, in the Commission’s view the Kawartha decision does not stand for the proposition that its interpretation of s. 47 is fundamentally one of discretionary decision making. Under its statutory appeal power, that tribunal was empowered to “hear” and “determine” the appeal of an expulsion and decided to hear the appeal de novo. The tribunal was not asked to interpret s. 311.3 with respect to the nature of the (appeal) and makes no reference to it in their decision: Kawartha (CFSRB), supra. The present case is, in our view, different. The Commission is tasked in this decision with interpreting its home statue to determine whether the legislature intended a s. 47(5) appeal to take place as a hearing de novo. The Commission has concluded the legislature intended that a full hearing on the merits first takes place before the Board, with this appeal take place on the record. This is consistent with prior Commission decisions.

84Moreover, the Commission does not find any ambiguity in the statutory scheme regarding s. 47(2) hearings and s. 47(5) appeals. For the reasons given above, the Commission has found that, given the overall context and purpose of Act, the Act is not ambiguous regarding appeal format. We are satisfied that there is only one plausible interpretation of s. 47(5), which is that a s. 47(5) hearing proceeds as an appeal on the record of the decision made by the board below.

85As a result, the principle from the Supreme Court of Canada’s decision in Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47 applies. In that case, the appellant urged that a provision of the Highway Traffic Act was ambiguous and Charter values had to be applied to determine the legislature’s true intent. Moldaver J. wrote at paragraph. 25:

With respect, Mr. Wilson’s argument must fail. [The HTA provision] is not ambiguous. As I observed earlier…a genuine ambiguity exists only when there are two or more plausible readings, each equally in accordance with the intentions of the statute. [The provision] does not meet that test. Indeed, in my view, it does not even give rise to two plausible readings, let alone two such readings that are equally in accordance with the intentions of the statute. Rather, as I will explain, when read in light of its text, context, and legislative objective, it admits of only one reasonable interpretation – the one arrived at by the adjudicator. Charter values may not be used “to create an ambiguity where none exists”: R. v. Clarke, 2014 SCC 28, [2014] 1 S.C.R. 612 at para. 1. Consequently, they have no role to play as an interpretive tool in this case: Charlebois v. Saint John (City), 2005 SCC 74, [2005] 3 S.C.R. 563, at paras. 23-24; Bell Express Vu [ADD CITE], at para. 62.

[86] The Commission finds this principle has application here. It cannot look to Charter values to create an ambiguity where one does not exist. However, that is not to say that Charter values, including those underlying s. 2(d) and 2(b) cannot or should not inform the discretionary decision making that occurs with respect to the procedure and substantive application of s. 47(1) and (2) Act in the first instance hearing before a board. The Commission agrees that the lack of express procedure for a s. 47(2) gives the Board a broad discretion in terms of procedure.

87As a result, on the appeal before the Commission, determinations about whether there were any procedural or substantive defects in the Board’s process below can incorporate Charter rights and values as part of the analysis. Indeed, the Appellant has raised issues in the notice of appeal about the limits placed on his union’s participation in the Board’s proceeding, and links this to the Charter right of freedom to associate. There is nothing preventing the Appellant from making the argument, in an appeal on the record, that the Board’s process was procedurally unfair, or that it exercised its discretion in a manner inconsistent with, or without consideration of, Charter values. The same applies to the Appellant’s broader arguments about the apposite roles of the Board, the WRPA and the Chief.

88The Commission is mindful that the Appellant and intervenors take the position that the hearing that took place before the Board in this case was procedurally unfair, failed to accommodate the Appellant, and relied on inadmissible medical evidence, in addition to other errors. However, the Commission finds that that the nature of these issues does not override legislative intent regarding s. 47 procedure and does not mean that there was “no hearing” before the Board.

[89] Finally, the Commission does not agree that a finding that this appeal proceeds as an appeal on the record excludes the WRPA from participating, contrary to s. 2(d) Charter values. The WRPA submits the Board excluded the WRPA from the accommodation inquiry, and that it could not call evidence or test the evidence relevant to the Appellant’s accommodation. It argues that to require an appeal on the record in the circumstances would “have the effect of giving the employer the power to unilaterally exclude the Association from the accommodation inquiry, and further, having done so, to prevent the Commission from having the benefit of the Association’s evidence and expertise on the hearing of the appeal.” Again, there is nothing preventing the WRPA from arguing before the Commission as intervenor, and from its specialized perspective as the bargaining agent for the Appellant and other uniformed officers, that the Board’s hearing process was unfair or otherwise deficient.

90The WRPA argues that, whether or not the decision by the Board was a decision in the normal course or a statutory decision, there was a lack of fairness afforded to the Appellant in the underlying process, including the limitation on the WRPA’s participation in the accommodation inquiry. It says the Commission is in a position to now “cure such defects” by holding a hearing de novo. The Commission has found the Act gives it the power to cure the defects by, among other powers, revoking the Board’s hearing and/or ordering a rehearing. The Commission does not agree this compels an interpretation of the Act to require a s. 47(5) appeal to proceed as a hearing de novo.

91For these reasons, we disagree with the Appellant and intervenors that a Charter analysis necessitates or otherwise results in a hearing de novo before the Commission.

92With respect to the PAO’s submission that the difference in procedural protections between members facing discharge under s. 47 and those facing discipline under Part V of the Act is discriminatory within the meaning of s. 15 of the Charter, we find this is more akin to a Charter challenge to s. 47 of the Act rather than a balancing exercise under Doré with respect to discretionary decision making. As the Respondent Chief points out, there is no notice of constitutional challenge to the provisions of the Act nor was this raised before the Board.

The Appellant did not have a legitimate expectation to a hearing de novo

93Lastly, the Appellant relies on material published on the Commission’s website in support of an argument that he had a legitimate expectation to a hearing de novo. At the time the Appellant filed his appeal, the “About the Commission” portion of its website indicated that the Commission heard both “appeals” and “first instance hearings”. Under the latter heading, the material indicated that the Commission “may hold different types of first instance hearings, with the authority to…” determine number of different proceedings authorized by the Act, among them to “[d]etermine whether a disabled member of a police service has been accommodated.” The Appellant submits that this reference created a legitimate procedural expectation on his part that a s. 47(5) proceeding before the Commission would take place as a first instance, or de novo, hearing.

94The test for establishing a legitimate expectation is well-settled. Representations made by a government official to an individual must be “clear, unambiguous and unqualified.”: Canada (Attorney General) v. Mavi, 2011 SCC 30 at para 68; Agraira v. Canada (Public Safety and Emergency Preparedness, 2013 SCC 36 at para. 95. They must be procedural in nature and not conflict with the decision maker’s statutory duty.

95In Mavi, Binnie J. wrote that the representations must be sufficiently precise if, “had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement.” Mavi paras. 69. What is at issue here is a single entry on the Commission’s website that provides general information about various proceedings and indicated that it “may” hold first instance hearings in some circumstances, including accommodation determinations.

96In the Commission’s view, this argument must fail for several reasons. First, this single sentence is not clear, unambiguous or unqualified. Moreover, it is inconsistent with the general practice of the Commission and its predecessors, discussed above. Finally, the Commission has found that legislative intent is clear regarding the procedure for s. 47(2) hearings and s. 47(5) appeals. Even if the Commission was satisfied that the single website reference was clear and unambiguous, the Appellant’s argument still must fail because the Commission cannot not override clear legislative intent with its own assertions.

ORDER

13The Commission orders:

i. The s. 47(5) appeal will proceed as an appeal on the record of the Board’s decision.

ii. The Commission will convene a pre-hearing Zoom case conference with the parties and interveners to set a date for the hearing of the appeal and establish a timetable for the exchange of factums on the appeal.

Released: January 9, 2025

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Emily Morton

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Laura Hodgson

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Colin Osterberg

Footnotes

1. 1On April 1, 2024 the Community Safety and Policing Act, 2019, S.O. 2019, c. 1, Sched. 1 (CPSA) repealed the Act. This appeal under s. 47(5) of the Act is continued before the Commission pursuant to s. 216(5.1)(b) of the CPSA and s. 14 of O. Reg 125/24.