Court File and Parties
COURT FILE NO.: 33/04 DATE: 2005-01-24
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, c. J.1
IN THE MATTER OF a decision rendered by the Ontario Civilian Commission on Police Services pursuant to section 78 (8) of the Police Services Act, R.S.O. 1990, c. P.15 dated October 24, 2004
B E T W E E N:
ARMAND P. LA BARGE in capacity as Chief of Police of York Regional Police Applicant
- and -
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES, EEVA PASSAILAIGUE, LEEA NUTSON and TAINA ANDREWS Respondents
Counsel: David Migicovsky for the Applicant Sara Blake for the Respondents
HEARD: December 22, 2004
REASONS FOR JUDGMENT
Pitt J.
[1] This is a motion brought by the respondents, for an order quashing or striking out the application for judicial review of the decision of the Ontario Civilian Commission on Police Services (the "Commission") directing the applicant Chief of Police (the "Chief") to initiate a disciplinary hearing against Police Constable J. Kilby on the ground that the Constable may have committed misconduct of a serious nature, namely, neglect of duty, in his capacity as primary investigator in the death of Anja Broadfoot in about March 2000.
[2] As an alternative remedy, the respondents seek an order striking out the affidavit of Elizabeth Cowie, which in substance purports to demonstrate generally that the Commission's decision was groundless, and, in particular, that the decision was flawed as it used an alleged breach of a procedural manual that was not in effect at the relevant time, as the basis for its belief that the Constable may have been guilty of misconduct.
[3] The grounds for the stay are:
(1) Prematurity: that the Commission has not finally determined any issues, having merely referred the complaint to be heard and decided by a hearing officer; and
(2) Abuse of Process: based on the undisputed assertion that the impugned procedural manual was produced during the course of the proceedings, by the Chief, who now disavows its efficacy.
JURISDICTION
[4] Although the Chief did not question the court's jurisdiction, it may be useful to note what Adams J. said in that regard in Sears Canada Inc. v. Davis Inquest (Coroner of), [1997] No. 1424 (Div. Ct.) at para. 9:
I am satisfied that a Divisional Court motions judge has jurisdiction to entertain a motion to quash or to declare an application for judicial review premature, just as that same judge may entertain a motion to stay the determination of an administrative tribunal pending judicial review. See Jafine v. College of Veterinarians of Ontario (1991), 1991 7126 (ON SC), 5 O.R. (3d) 439. Of course, a motions judge has the discretion to refer a matter to a full panel of the Divisional Court. In these circumstances, however, a referral would impose more costs on the parties and provoke further delay. Accordingly, I have decided to deal with the motions.
[5] Although, the considerations that lead Adams J. to deal with the matter may not apply here with the same force, as I have said, the Chief has not asked me to refer the matter to a full panel, and the respondents are before me voluntarily.
THE FACTS
[6] The facts are succinctly set out in the respondents' factum as follows:
On March 1, 2000, the York Regional Police received a call from John Broadfoot reporting that his wife, Anja Broadfoot, was missing and that she was suicidal and on anti-depressants. After a search of Milne Park, the officers found the body of Anja Broadfoot lying face down near the waters edge. The official cause of death was drowning. The issue under investigation was whether she had committed suicide or was the victim of homicide. Her children, the complainants, allege that she was murdered by her husband. The police concluded that they were unable to determine the reason why she drowned. [My emphasis.]
The complainants requested that the investigation of the death of their mother be re-opened. They allege that the police officers contaminated the site where her body was found. They allege that the police failed to give adequate consideration to the fact that it is highly unlikely that she committed suicide given the circumstances in which her body was found on the bank of the river. They allege that the police failed to properly investigate numerous inconsistencies and inaccuracies in the information provided by John Broadfoot.
The Deputy Chief of Police refused to re-open the investigation. The complainants complained to the Commission. The complaint was referred by the Commission to York Regional Police, who dismissed it on the ground that it was out of time. The complainants requested that the Commission review the decision. The Commission required further investigation of the complaint and assigned it to another police force, Hamilton City Police Service.
The Hamilton Police Services concluded that York Regional Police Service conducted a thorough investigation and that appropriate investigative steps, proper procedures and best practices were used. Pursuant to section 64 (6) of the Police Services Act, the York Region Chief of Police decided to take no further action in relation to the complaint.
The complainants appealed to the Commission. Pursuant to section 72(8) of the Police Services Act, the Commission directed the York Regional Police to initiate a disciplinary hearing with regard to the manner in which Constable Kilby handled the investigations within 90 days before an external hearing officer. The applicant has failed to comply with the direction to initiate the hearing within 90 days. Instead, the applicant has commenced this application for judicial review. [My emphasis.]
[7] The provisions of the Police Services Act, R.S.O. 1990, c. P.15 engaged are:
Unsubstantiated complaint
64.(6) If, at the conclusion of the investigation and on review of the written report submitted to him or her, the chief of police is of the opinion that the complaint was unsubstantiated, the chief of police shall take no action in response to the complaint and shall notify the complainant and the police officer who is the subject of the complaint, in writing, together with a copy of the written report, of the decision and of the complainant's right to ask the Commission to review the decision within 30 days of receiving the notice. 1997, c. 8, s. 35.
Hearing to be held
(7) Subject to subsection (11), if, at the conclusion of the investigation and on review of the written report submitted to him or her, the chief of police is of the opinion that the police officer's conduct may constitute misconduct, as defined in section 74, or unsatisfactory work performance, he or she shall hold a hearing into the matter. 1997, c. 8, s. 35.
(8) Upon completion of the review, the Commission may confirm the decision or may direct the chief of police, detachment commander or board to process the complaint as it specifies or may assign the review or investigation of the complaint or the conduct of a hearing in respect to the complaint to a police force other than the police force in respect of which the complaint is made.
[8] The impugned direction dated October 24, 2003 from the Commission to the Chief is as follows:
On the basis of the review of the information provided, it was the Commission's decision that there is sufficient evidence to allege that Detective Constable J. Kilby may have committed misconduct of a serious nature under s. 64 (7) of the Police Services Act. (My emphasis.]
Specifically, the Commission determined that Constable Kilby's actions may have constituted a violation of Ontario Regulation 123/98, Part V, Code of Conduct, s. 2(1)(c)(i) – Neglect of Duty, in that he, without lawful excuse neglected or omitted promptly and diligently to perform a duty as a member of the police force when as the officer in charge of the investigation into Anja Broadfoot's death, he failed to follow York Regional Policy LE-037 Sudden Death and Found Remains. [My emphasis.]
In particular, it would appear that:
▪ On March 1, 2000 at 3:18 pm, the complainant's mother, Anja Broadfoot, was reported missing to police. A zone alert was dispatched describing Mrs. Broadfoot as suicidal and on anti-depressants.
▪ At 4:23 pm, a search team was assembled and approximately one hour later, Mrs. Broadfoot's body was located face down in the vicinity of a water source. Eventually the cause of death was "drowning by means undermined."
▪ At 9:14 pm, Detective Constable Kilby arrived at the scene as the primary investigator of Anja Broadfoot's sudden death. [My emphasis.]
▪ During the initial hours of the investigation, the family advised the York Regional Police of their suspicions regarding the cause of Anja Broadfoot's death.
▪ York Regional Policy LE-037 Sudden Death and Found Remains states: "All sudden deaths and found remains will be treated as homicides until investigation reveals otherwise."
▪ Further, Memorandum #00-04, June 28th Protocol: When Conducting Sudden Death Investigations from the Chief Coroner of Ontario states: "Each year in Ontario in excess of 1,000 Coroner's investigations are ultimately classified as "suicide" or "undetermined" … These sudden deaths can be among the most complex to investigate. They also tend to evoke very strong emotions amongst family members … investigations of sudden death must be approached with a fair and open mind. It is up to the Coroner to determine whether a death is the result of a suicide, an accident, or a homicide.
Pursuant to the Police Services Act, S. 72(8), the Commission directs your Service to initiate a disciplinary hearing with respect to this matter to be commenced within 90 days before an external hearing officer. Further, it is directed that the Commission be advised when a hearing date is set and at the conclusion, a copy of the hearing officer's decision be provided.
DISCUSSION AND ANALYSIS
[9] In Ontario (Civilian Commission on Police Services) v. Browne et al; Sadaka et al. v. Houde et al (2001), 2001 3051 (ON CA), 56 O.R. (3d) 673 (C.A.), the head note faithfully summarizes the issues and history of the above-noted cases:
… In both cases, the Commission directed the chief of police to process the complaint under s. 72(8) of the Police Services Act. Section 72(11) of the Act requires the chief of police to process a complaint "as specified" by the Commission. The affected police officers applied to the Divisional Court for judicial review of the Commission's decision to direct a hearing. … The court held that the Commission was obliged to specify with particularity the substance and the form of contents of the Notice of Hearing when it exercised its authority under s. 72(8) of the Act. … the police officers cross-appealed on the issue of the Commission's jurisdiction to order a hearing on the basis of unsatisfactory work performance without first complying with s. 13(3) of the Regulation.
Held, the appeals should be allowed and the cross-appeal dismissed.
… the Commission should not be expected to draft the allegations with such particularity that the allegation framed by the Commission constitutes the actual charge for the hearing. … The Commission must clearly provide the information necessary for the chief to comply with his or her statutory duty. However, compliance does not require elaborate particularity from the Commission; rather, what is required is sufficient information to permit the chief of police reasonably to inform the police officer of the case he or she will be required to meet. … The chief of police did not need further particulars from which to draft a Notice of Hearing as it would be the same information already contained in the police file. The chief of police must have been aware of the allegations since he would have already reviewed the investigative report and the complainant's case before making a determination on whether the complaint warranted a hearing. … The decision to order or not order a hearing requires no reasons beyond a properly specified basis for a hearing.
[10] It is clear, therefore, that in both these cases judicial review was sought and denied. There is nothing to indicate that the issue of prematurity arose at either the Divisional Court or the Court of Appeal. Nor is there anything in the cases to suggest that judicial review was not an available remedy. Nevertheless, there are some observations made by Abella J.A. (as she was then), writing for the court, (Charron, and Sharpe JJ.A.) that provide guidance for the analysis of the case at bar. The court said at paragraph 46:
[46] The duty of specificity flows from the statutory scheme, particularly the Commission's jurisdiction to direct the hearing of a complaint and the chief of police's duty to process that complaint as the Commission specifies. The sufficiency of those directions therefore depends on whether they provide enough information to permit the chief of police to process the complaint. That in turn requires an analysis of the duties in s. 72(8) and s. 72(11) of the Act, which state: [My emphasis]
Refer to paragraph 7 above.
At paragraphs 49 and 50, the court said:
[49] Because the chief of police is obliged under s. 72(11) to process the complaint "as specified" by the Commission, it follows that the Commission must clearly provide the information necessary for the chief to comply with his or her statutory duty. But compliance does not require elaborate particularity from the Commission; rather, what is required is sufficient information to permit the chief of police reasonably to inform the police officer of the case he or she will be required to meet. [My emphasis.]
[50] The adequacy of the information's content, not the degree of formal delineation, governs the determination whether the requirement has been satisfied. [My emphasis.]
In paragraph 58, the court said:
[58] Although there is a statutory duty to direct a hearing "as specified", which carries with it the duty to sufficiently set out the basis of that hearing, in my view, the actual decision to order – or not order – a hearing requires no reasons beyond a properly specified basis for a hearing. [My emphasis.]
In paragraphs 60, 61 and 62, the court says as follows:
[60] Under s. 72(7), the Commission is required to conduct a paper review of the chief of police's decision without convening a hearing, and to do so within 30 days of receiving the request for a review. The Commission's decision that a hearing should be held is not a determination of the merits or strength of the complaint, but rather of the fact that there is sufficient material to justify a hearing. The nature of the decision being made by the Commission – a screening function rather than a determination of the merits – and the informality of the process set out in the Act, argue for diminished procedural requirements. [My emphasis.]
[61] Moreover, as discussed earlier, the Commission's role as the appellate body from decisions made after hearing into complaints, may be unduly compromised by the obligation to provide any reasons at this gatekeeping stage. Given the statutory scheme, it could, in any event, be taken as implicit that the Commission's decision based on its view that the allegations raised either are or are not sufficiently serious to warrant a hearing. Beyond this, reasons are neither necessary nor appropriate at this stage.
[62] These factors, in combination with the exemption from the Statutory Powers Procedure Act, persuade me that there is no common duty to provide reasons for the decision to confirm or overturn the decision of the chief of police. …
Finally, the court said in paragraphs 73 and 75 as follows:
[73] The cross-appellants in Sadaka [v. Houde (2000), 4 C.C.E.L. (3d) 153 (Div. Ct.)] argue in either event that the Commission's decision to order a hearing was "unreasonable". The Commission, on the other hand, submitted that its decision should be accorded curial deference. In my view, the applicable standard of review of the Commission's decision to order a hearing is patent unreasonableness. The privative clause in s. 72(1), which states that the Commission's decision under s. 72(8) of the Act is "final and binding and there is no appeal therefrom", confirms that the legislature's intention that the decision to order – or not to order – a hearing into an officer's conduct should be protected from review and is entitled to deference.
[75] The combination of the purpose of the Act, the privative clause, and the designated and specialized expertise of the Commission call for patent unreasonableness as the guiding standard of review. In my view, the Commission's decision in Sadaka to order a hearing cannot be said to be patently unreasonable, particularly given the serious nature of the allegations. [My emphasis.]
[11] Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services) (2002), 2002 45090 (ON CA), 61 O.R. (3d) 649 (C.A.) went through the Divisional Court to the Court of Appeal, which upheld the decision of the Divisional Court granting judicial review, this time to order the Commission to require the chief of the Guelph Police Force to hold a hearing, when members of the public complained about a Charter breach regarding their treatment by the police following their arrest at a political protest. Naturally, prematurity was not an issue, but again the Court of Appeal dealt in some detail with the scope of the Commission's duty in directing a police chief to proceed to a hearing, and the restricted nature of the exercise in which the Commission must engage in making its decision to direct the Chief to hold such enquiry. The court also dealt with the issue of the requirement for the Commission to give reasons for the decision.
[12] Again, the headnote faithfully summarizes the court's decision on these issues at page 651:
In reviewing a decision of the Chief and interpreting s. 64(6) and (7) of the Act, the Commission must determine whether there is a reasonable basis in the alleged facts on which the complaint is based for proceeding to a hearing. Reasonable and probable grounds on which the Chief can base an opinion that there has been misconduct or unsatisfactory work performance by a police officer are not required. …. In deciding whether there is a reasonable basis in the alleged facts on which the complaint is based for proceeding to a hearing, the Commission, like the Chief, does not engage in weighing the evidence or assessing its truthfulness, except to the limited extent of determining whether the complaint is frivolous and vexatious. In this case, the Commission, like the Chief, applied the wrong evidentiary standard in determining whether a hearing should be held. Only evidence which "may" constitute misconduct or unsatisfactory work performance is required, not "clear and convincing" evidence. In misconstruing the standard to be applied to the facts, the Commission arrogated to itself an issue reserved to another forum, that of the trier of fact at a hearing. [My emphasis.]
A decision to transfer the applicants that ignored or neglected their right to be free from unreasonable search and seizure could bring discredit upon the reputation of the police force and was thus evidence that misconduct "may" have occurred. At a minimum, such conduct could constitute unsatisfactory work performance.
The Commission is not required to give reasons for its decision. What was required was that the court be able to perform its function by reviewing the Commission's decision. [My emphasis.]
[13] There are some passages in the judgment of Wieler J.A. for the court (Abella and Borins JJ.A.) that not only mirror the observations in Bowne, supra, that the standard of review of the Commission's decision is patent unreasonableness, but gives some additional assistance in determining whether the application for judicial review should be allowed to proceed. Paragraph 47 states:
[47] The requirement in s. 64(7) that a hearing be held if there "may" have been misconduct by the police officer connotes "possibility" rather than "probability" and is a good indication that the standard for a hearing is not "reasonableness and probable grounds".
Paragraphs 50 and 51 are as follows:
[50] … The terminology in s. 64(6) and (7) as compared with s. 64(1) indicates that the legislature intended a clear distinction between the two processes. The Chief is not required to hold a hearing only when a complaint has been proven on a balance of probabilities, or the slightly higher standard of clear and convincing evidence. [My emphasis.]
[51] The standard "reasonable and probable cause" is derived from the criminal law. The "Report and Recommendations on Amendments to the Police Services Act Respecting Civilian Oversight of Police", dated November 21, 1996 by Roderick McLeod and prepared by the then Attorney General, Charles Harnick, formed the basis of the amendments to the Act that created the Commission. The report recommends at 8.5.2. that "the current trappings of the criminal law be removed from the complaints/discipline process". [My emphasis.]
[14] The Court of Appeal in Canadian Civil Liberties Assn., supra, did not accept the Divisional Court's view that the evidentiary burden to be discharged by the Chief or Commission is akin to that of a preliminary enquiry. One of the reasons for that conclusion was that "… disciplinary proceedings are administrative and civil, not criminal in nature, and it would be inappropriate to apply a criminal approach to them. The 1996 Report, supra, and subsequent amendments to the Police Services Act reinforce this observation."
In paragraph 72, the court said:
[72] … The legislature does not require that error on the part of the Chief be shown before it can intervene. Although the Commission must "take into account" any material provided, nothing in the legislation prevents it from substituting its opinion for that of the Chief. The Commission has the power to confirm the decision of the Chief, to order that the complaint be processed as it specifies, or to assign the review to another police force. It is implicit that in conducting the review of the decision of the Chief as to whether a hearing is to be held, the Commission is required to consider the meaning of "misconduct" as defined by s. 74(1).
[15] With regard to the requirement for reasons, the court dealt with the Browne, supra, case in paragraph 86 as follows:
[86] … In Browne, Abella J.A. commented at paras. 60-62 that the Commission's role as an appellate body might be unduly compromised by the obligation to provide reasons at the gatekeeping stage of deciding whether or not a hearing should be held. She further noted that the Commission's decision at this stage is exempt from the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Having regard to these factors, she held that there was no common law duty to provide reasons for the decision to confirm or overturn the decision of the Chief.
In paragraph 87 and 88, the Court dealt with the issue of inadequacy of reasons in the following manner:
[87] Even in the criminal context the inadequacy of reasons has been rejected as a freestanding ground of appeal: R. v. Braich, 2002 SCC 27, 210 D.L.R. (4th) 635. Instead, the Supreme Court has adopted a functional approach that requires an appellant to show that deficiency in the reasons caused prejudice to the exercise of the right of appeal. This functional approach is reflected in the administrative context in the Supreme Court's comments in Baker [v. Canada (Minister of Citizenship and Immigation), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193] that a statutory body's duty to give a rationale for its reasons, which is based on a duty of fairness, is flexible and variable, and is defined by the context of the particular statute, the decision being rendered, and the rights affected.
[88] For right of review to be meaningful the reviewing body, in this case the Divisional Court, must be able to perform its task.
GROUNDS FOR THE CHIEF'S APPLICATION FOR JUDICIAL REVIEW
[16] The grounds, as outlined in the notice of application for judicial review, are:
(a) The Commission erred in law and exceeded its jurisdiction under s.72(8) of the Police Services Act, R.S.O. 1990, c. P.15, as amended.
(b) The Commission found that Detective Constable Kilby may have committed misconduct by failing to follow York Regional Police Procedure LE-037 ("Procedure LE-37") notwithstanding that at all material times Procedure LE-037 was not in force.
(c) In the alternative, if Procedure LE-037 was in force, the Commission erred in law and exceeded its jurisdiction in directing a hearing against Detective Constable Kilby by failing to follow Procedure LE-037 when there was no evidence of noncompliance with Procedure LE-037.
(d) Such further and other grounds as counsel may advise and this honourable court may accept.
[17] In argument, the Chief objected to the respondents' characterization of his grounds as being essentially based on the anomaly of the alleged reliance on Procedure LE-037. In truth, however, that ground is fundamental to the Chief's position. I say this because of the obvious scope of the Commission's discretion under s.72(7) and (8) specifically emphasized by the Court of Appeal, the detail provided in the Commission's letter of October 24, 2003 to the Chief requiring him to initiate a disciplinary hearing, and the availability to the Chief of the investigative reports, the complainants' case and such other material. It is difficult to understand why the Divisional Court would feel entitled to attempt to fetter the Commission's exercise of discretion in the face of the analysis provided by the Court of Appeal in Ontario (Civilian Commission on Police Services) v. Browne, supra, and Canada Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services), supra.
[18] One cannot avoid the impression that the Chief's main concern is set out in paragraph 35 of his factum as follows:
- In the event that this application for judicial review was successful, Constable Kilby would be spared the anxiety and notoriety that result from a public hearing into allegations of misconduct against a police officer. The stress and stigma that such a hearing engenders for a police officer was specifically recognized by the Court of Appeal in Canada Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services), supra, at 669:
"On the other hand, the Chief must take into consideration that the police must often act in highly stressful, emotionally charged situations and must make decisions quickly that, while perfectly legitimate, may be offensive to those affected by them. The Chief will obviously be cognizant of the stress and stigma for a police officer if a hearing is held into his or her conduct as opposed to informal resolution."
In my view, this concern has to be weighed against another concern also expressed in Browne, supra, at para. 67:
[67] The legislative purpose is demonstrably to increase public confidence in the provision of police services, including the processing of public complaints. That confidence is further protected legislatively by assigning to the Commission, under s. 72(8), responsibility for reviewing the decision of a chief of police regarding complaints from the public.
and again in paragraphs 68, 69 and 70:
[68] The distinction between public and internal complaints flows logically from the policy of the Act. In the case of internal complaints, the chief of police brings a complaint directly against a police officer. Since he or she is the officer's employer and has the power to order the police officer's dismissal or suspension, among other possible sanctions under s. 68(1), the graduated discipline found in s. 13(3) of the Regulation provides necessary and appropriate safeguards in the vulnerable relationship between an employer and employee.
[69] In the case of public complaints, on the other hand, different considerations apply. … The public needs to feel confident in the complaints process. This means that complaints justify different – and more transparent – processes than those internally driven. …
[70] This does not mean that every complaint from the public creates an automatic entitlement to a hearing. There still needs to be a determination that the allegation is sufficiently serious to warrant a hearing, a determination left by statute to the Commission as final arbiter. [My emphasis.]
Even if the Commission were influenced partly by the need to satisfy the public that it had complied fully with its mandate, that would not, in my view, warrant judicial review.
[19] It is difficult not to conclude from the above that the application for judicial review is doomed to failure. I entertained some doubt initially that it should be dismissed on the ground of prematurity because whether or not such a ground was raised in Browne, supra, neither the Divisional Court nor the Court of Appeal, both of which frequently dismiss appeals on grounds of mootness and prematurity, as much as commented on that issue. In fact, in both Browne and Canada Civil Liberties Assn., supra, the analyses seem to proceed on the assumption that the applications, whether meritorious or not, were appropriately before the court. This observation is, however, obviously less significant with regard to the Canada Civil Liberties case because there the purpose of the application was to require the Commission to take appropriate action to ensure that a hearing take place, rather than constrain the Commission's discretion to pursue its mandate.
[20] One of the bases for invoking prematurity set out in Sears Canada Inc., supra, namely, that the application did not raise serious concerns such that if they materialized, would likely result in a fundamental failure of justice, has relevance to the case at bar since the decision of the Commission is not a finding of responsibility, but merely requires a hearing to make such a determination. In the Canadian Civil Liberties Assn. case, however, the decision of the Commission not to order a hearing did raise serious concerns that if materialized, would likely have resulted in a fundamental failure of justice, by failing to protect legal rights.
[21] It may well be, therefore, that prematurity as a ground for denying judicial review is more appropriate where the application is to prohibit the Commission from ordering a hearing, and less appropriate where the complaint is that the Commission failed in its duty to require a hearing, since in the former case, the Commission's decision to require the chief to hold a hearing is not a final determination of rights, while in the latter case, the Commission's failure to act may result in a loss of legal rights.
[22] Another, and perhaps the main reason articulated in Sears Canada Inc., supra, was that such applications would irreparably fragment and delay the work of these important bodies. This reasoning clearly applies in a case like this one.
[23] In addition, there does not seem to be anything in this application, as in Sears Canada Inc., that demands the immediate intervention of this Court. As I indicated earlier, the real concern of the applicant is the anxiety and notoriety that the constable would have to endure if a hearing were ordered.
[24] In Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798 (Div. Ct.), the Divisional Court quashed an application for judicial review of the Human Rights Commission's decision to request the Minister of Citizenship to appoint a board of inquiry notwithstanding that the College alleged bias against the Human Rights Officer appointed by the Commission to inquire into the complaint of sexual and racial harassment. The court found that the proceedings should not be fragmented, and dismissed the application on the ground of prematurity. It seems to me that the court was there being asked to make a determination on the issue of bias of the Human Rights Officer before the issue of discrimination with respect to which he was making a preliminary assessment, was actually determined.
[25] Here the court is being asked to make a determination on the appropriateness of the Commissioner's decision to require the Chief to initiate a hearing, without awaiting the result of the hearing. The following quotation from Ontario College of Art v. Ontario (Human Rights Commission), supra, at p. 799, reflects the state of law in this province:
This court has a discretion to exercise in matters of this nature. It can refuse to hear the merits of such an application if it considers it appropriate to do so. Where the application is brought prematurely, as alleged by the Attorney General in these proceedings, it has been the approach of the court to quash the application, absent the showing of exceptional or extraordinary circumstances demonstrating that the application must be heard: see Latif v. Ontario (Hospital Resources Commission) (an unreported decision of this court of March 11, 1992; leave to appeal was denied on June 8, 1992 by the Ontario Court of Appeal) and Hancock v. Ontario (Human Rights Commission) (an unreported decision of this court of November 10, 1992.)
These decisions follow a long line of authority which has indicated the need to avoid a piecemeal approach to judicial review of administrative action. The board of inquiry in this case has jurisdiction to entertain and determine any of the issues that have been so ably advanced by Ms. Roberts. This includes her argument that bias has tainted the appointment of the board of inquiry. The board of inquiry also, of course, has the jurisdiction to consider the allegation of delay as it has affected these proceedings.
For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matter to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion.
ABUSE OF PROCESS
[26] That the impugned document (Procedure LE-037) was provided to the Hamilton Police Chief by the applicant Chief is indeed an anomalous circumstance. It would have been eminently reasonable for the Hamilton Police Chief and the Commission to form the opinion that the applicant Chief considered the document to be relevant.
[27] However, I agree with the applicant Chief that an abuse of process occurs generally when a party attempts to litigate an issue finally determined in one forum in a different forum. The only other circumstance in which an abuse of process may be properly found is where it is plain and obvious that a claim cannot succeed because it is frivolous, or vexatious in the sense that it is grossly unfair to the other side.
[28] While Browne, supra, demonstrates that applications to judicially review decisions of the Commissions will not always be dismissed on the ground of prematurity, the rationale for dismissal canvassed in the cases noted earlier is clearly applicable here. I believe that the application for judicial review is without merit, and its prematurity convinces me that it should be dismissed.
[29] I do not share the Chief's views in the context of this proceeding about the dispositive significance of the date that the Procedure LE-037 came into force. I cannot, however, accept the submission of the Commission that the Chief's reliance, whether in whole or in part, for the constable's defence, on the date of the coming into force of the Procedure, is an abuse of process because the Procedure was produced at the instance of the Chief.
DELAY AND OTHER ISSUES
[30] This motion to quash was brought almost ten months after the application for judicial review was commenced. The explanation for the delay was not clear to me, and has caused me some real concern. I cannot, however, justify dismissing the motion for delay, given the importance of the issues, and the lack of demonstrable prejudice to the Chief.
[31] I considered the affidavit of Elizabeth Cowie and found that it did not meet the requirements for admission on a application for judicial review set out in cases like Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.); Windsor Board of Education v. Windsor Women Teachers Assns. (1991), 1991 8355 (ON CA), 86 D.L.R. (4th) 345 (Ont. C.A.); and AOV Adults Only Video Ltd. v. Manitoba (Labour Board) (2003), 2003 MBCA 81, 228 D.L.R. (4th) 656 (Man. C.A.), because the affidavit is merely an attempt to bolster the arguments made rather effectively in the Chief's factum. In addition, I do not find it helpful in clarifying the issues on the motion to strike, especially as the date on which the impugned Procedure came into force is not in issue.
DISPOSITION
[32] For all of the above reasons, the motion of the Commission to stay the Chief's application is granted.
COSTS
[33] Subject to any agreement between the parties, brief written submissions on costs are to be made within 20 days of the release of these reasons.
Pitt J.
Released: January 24, 2005
COURT FILE NO.: 33/04
DATE: 2005-01-24
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
ARMAND P. LA BARGE in capacity as Chief of Police of York Regional Police Applicant
- and -
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES, EEVA PASSAILAIGUE, LEEA NUTSON and TAINA ANDREWS Respondents
REASONS FOR JUDGMENT
Pitt J.
Released: January 24, 2005