COURT FILE NO.: 492/2000

DATE: 20030110

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, MATLOW and J. MACDONALD JJ.

B E T W E E N:

DARREN PAYNE

Applicant

• and -

THE REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD AND CHIEF OF POLICE, PEEL REGIONAL POLICE

Respondents

Harry G. Black, Q.C. and Joanne Mulcany, for the Applicant

Michael A. Hines, for the Respondents

HEARD: January 10, 2003

THEN J.: (Orally)

1The issue in this case is whether the Peel Police Services Board breached its duty of procedural fairness and natural justice to probationary Constable Payne by failing to require witnesses to give evidence under oath or allow cross-examination of the witnesses. In our view, the Board was acting as an employer exercising an administrative function pursuant to the Police Services Act, R.S.O. 1990 c.P.15. The proceeding was governed by s.44(3) of the Police Services Act which can fairly be viewed as a codification of the seminal decision of the Supreme Court of Canada in Nicholson and Haldimand Norfolk Regional Board of Commissioners of Police (1978), 1978 24 (SCC), 88 D.L.R. (3d) 671 (S.C.C.). Section 44(3) provides that a Board may terminate a police officer's employment at any time during his or her probationary period but, before doing so, shall give the police officer reasonable information with respect to the reasons for termination and an opportunity to reply orally or in writing as the Board may determine. It should be noted that by virtue of s.22 of the Police Services Act, the Statutory Powers Procedure Act, and in particular s.10.1 of that Act which mandates the right to cross-examine a witness, does not apply to a s.44(3) proceeding.

2Issues involving the dismissal of probationary constables have been reviewed by this Court in the following four decisions:

Biring v. the Regional Municipality of Peel Police Services Board (1993) O.J. No. 4201

Gallow v. Brantford Police Services Board [1996] O.J. No. 3444

Labelle v. Ontario Provincial Police [1997] O.J. No. 4599

Grisolia v. Toronto (Metropolitan) Police Service [2001] O.J. No. 880

3None of these cases stands for the proposition that the Board was obliged generally, as a matter of law, to extend procedural fairness and natural justice in terms of requiring sworn evidence and affording the right to cross-examination merely because significant issues of credibility are raised. The authorities do stand for the proposition that once issues of credibility are raised, an opportunity to reply orally as opposed to in writing ought to be given by the Board. As to the extent of procedural fairness, we agree with what was said by this Court in Grisolia at paragraph 13 where it is stated that:

"The question for this Court is whether on the facts of this case the applicant was afforded procedural fairness. We accept there is such a duty in circumstances like these where the applicant's employment is at risk. We further accept that the content of the duty of fairness will vary with the facts of the particular case."

4The allegation upon which the Board based its decision to terminate the applicant was that when he was interrogated by complaints officers on October 21st, he deliberately misled those officers as to what he had in fact observed as to the conduct of a fellow probationary officer (Borel) on August 15th, 1999, some two weeks into his duties as a probationary officer. The position advanced by the applicant was that on October 21st he forgot to relate his observations of the actions of Borel because of the abusive interrogation of the complaints officers on October 21st. In a subsequent interview the following day on October 22nd, he related his observations of Borel to the officers having realized the omission in the interview subsequent to the interview on October 21st.

5By virtue of the written materials tendered prior to the hearing, the Board had all of the relevant information both from the applicant and from the complaints officers bearing on the October 21st interview. The Board was aware of the nature and nuances of the anticipated evidence. The Board was aware of the manner in which the October 21st interview was conducted. The Board knew of the Applicant's assertion that he had been pressured during the course of the interview and of his assertion that he had forgotten to mention Borel's conduct because of the pressure. In our view, the Board was not clearly wrong in exercising its discretion not to allow cross-examination or to require that the witnesses be sworn at that point in order to properly determine the issues of credibility between the parties. Nor are we persuaded that the Board was clearly wrong in exercising its discretion not to receive sworn evidence or permit cross-examination merely because the prosecution before the Board wished to adduce the evidence of three witnesses viva voce, especially in circumstances where, simultaneously, the applicant indicated that he was prepared to adduce the evidence of sixteen witnesses viva voce.

6During the hearing the Applicant gave his version of events in person. In response to specific questions of the Board Chairman, the Applicant explained that he had stated to the complaints officers on October 21st that he had not seen the conduct of Borel because it was dark and too far away. The Applicant explained that he gave that answer because of the pressure put upon him by the complaints officer. The Chairman asked the Applicant to explain why he told the complaints officers that he had observed the conduct of Borel in the subsequent interview on October 22nd. The Applicant explained that he had recalled the conduct of Borel which he had witnessed at a distance of ten feet subsequent to the October 21st interview, but, had forgotten to mention his observations at the interview because of the pressure. The Board disbelieved his explanation and found that he had consciously misled the complaints officers on October 21st. In our view it was open to the Board to come to the conclusion it did in view of the position taken by the Applicant on these issues before the Board.

7We are not persuaded that either the statements of the Applicant or of the complaints officers made to the Board, in response, in some instances, to the questioning by the Board, required the Board to change its initial ruling as to the need for sworn evidence or as to the need for cross-examination as the hearing evolved. There was no general requirement in law for the Board to take evidence under oath or to permit cross-examination but only to afford the applicant an oral hearing with such procedural fairness which the circumstances mandated. In our view, in the circumstances of this case, the Board was not clearly wrong or unreasonable in exercising its discretion not to take evidence under oath or to permit cross-examination, either at the time that the request was initially made or as the hearing before it unfolded.

8The application for judicial review is therefore dismissed. I have endorsed the application record as follows: "The application is dismissed for oral reasons delivered this day. The respondent will obtain instructions as to cost and if sought will make written submissions by January 24, 2003. The applicant will of course be permitted to reply no later than February 7, 2003."

THEN J.

MATLOW J.

J. MACDONALD J.

COURT FILE NO.: 492/2000

DATE: 20030110

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, MATLOW and J. MACDONALD JJ.