COURT FILE NO.: 455/04

DATE: 20050613

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, WHALEN AND MOLLOY JJ.

B E T W E E N:

LEABERT JERVIS

Applicant

• and -

CHIEF OF POLICE OF THE TORONTO POLICE SERVICE & ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Respondents

Shabana Shaikh and Nathan M. Ross, for the Applicant

Robert Fredericks, for the Chief of Police and D. Thomas H. Bell, for the Ontario Civilian Commission on Police Services

HEARD at Toronto: June 13, 2005

ORAL REASONS FOR JUDGMENT

O’DRISCOLL J.: (Orally)

1The applicant seeks judicial review and orders quashing: (1) the Order of the Chief of Police, dated December 29, 2003 and (2) the Order of the Ontario Civilian Commission on Police Service, (OCCPS), dated March 30, 2004.

2The applicant asserts that on April 20, 2003, and again on April 24, 2003, he contacted the Toronto Police Service at No. 51 Division about an alleged theft of material from his apartment 203 at 200 Wellesley Street East, Toronto. The applicant prepared an unsigned written complaint about the two (2) uniformed police constables who came to his apartment on the evening of April 24, 2003.

3The written complaint, dated “April 24” was received by the Toronto Police Service (hereinafter TPS), by way of OCCPS, on December 24, 2003. A copy of the complaint is found at Tab 1 of OCCPS Record of Proceedings. The applicant’s affidavit shows that he knew he was late with filing his complaint when it was filed.

4In a letter, dated December 29, 2003, the designate of the Chief of Police wrote to the applicant and acknowledged receipt on December 24, 2003 of the written unsigned complaint. The Chief’s designate also advised the applicant that s.59(4) of the Police Services Act, R.S.O. 1990, c.P.15 (the “Act”) provided:

“(4) The chief of police may decide not to deal with any complaint made by a member of the public if the complaint is made more than six months after the facts on which it is based occurred.”

5The complaint in question was not received until eight (8) months after the alleged misconduct. In his affidavit, Leonard Faul, the Inspector of the Toronto Police Service and Unit Commander of the Complaints Section of the Toronto Police Service Professional Standard Risk Management Unit, swore, on April 27, 2005, as found in the Record of the Chief of Police:

“5. The TPS received the complaint of the applicant, Leabert Jervis, by facsimile from the Ontario Civilian Commission on Police Services on December 24, 2003. Attached as Exhibit “C” to this affidavit is a copy of that facsimile.

6. The applicant’s complaint was assigned to Detective Sergeant David McCormick #4463 for review. On December 29, 2004, D/Sgt. McCormack determined that the complaint was made more than six months after the facts on which it was based, which had occurred on April 24, 2003. He also concluded that the alleged facts, if true, did not constitute serious misconduct and saw “nothing alarming enough to start an internal complaint”. Finally, D/Sgt. McCormack noted that the complaint was unsigned and indicated that, if returned to the applicant to be signed, the complaint “would still be 8 months old”. Attached as Exhibit “D” to this affidavit is a copy of the Log Notes prepared by D/Sgt. McCormack, dated December 29, 2003.”

6On December 29, 2003, the TPS wrote to the applicant, quoted s.59(4) of the Act and advised the applicant that no further action would be taken on his complaint. The letter also advised the complainant that if he wished to have the decision reviewed, he could ask for a review by OCCPS within thirty (30) days of receipt of this letter. OCCPS’s address, telephone number and fax number were set out in the letter.

7The relevant sections of the Act are as follows.

“s. 59(6) If the chief of police decides not to deal with a complaint under subsection (3), (4) or (5), he or she shall notify the complainant and the police officer who is the subject of the complaint, if any, in writing, of the decision and of the complainant’s right to ask the Commission to review the decision within 30 days of receiving the notice.

s. 72 (1) If a complainant disagrees with the decision of a chief of police to deal with his or her complaint as a complaint about the policies of or services provided by the police force or as a complaint about the conduct of a police officer, the complainant may, within 30 days of receiving notice under subsection 59(2), ask the Commission to review the decision.

s.72(3) If a complainant has been notified under subsection 59(6), 62(5) or 65(4) that his or her complaint will not be dealt with because it was made more than six months after the facts on which it is based occurred, the complainant may, within 30 days of such notification, ask the Commission to review the decision.

s.72(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 of the complaint to a police force other than the police force in respect of which the complaint is made.

s.72(10) The Commission shall notify the complainant and the chief of police, detachment commander or board, as the case may be, and the police officer who is the subject of the complaint of its decision and the action taken by it under subsection (8).

s.77(2) Service by regular letter mail shall be deemed to be received by the person, board or Commission on the fifth day after it is mailed unless the person, board or Commission establishes that the person, board or Commission did not, acting in good faith, through absence, accident, illness or other cause beyond the person’s, board’s or Commission’s control, receive the notice on that day.

s.72(12) The Commission’s decision under subsection (8) is final and binding and there is no appeal therefrom. 1997, c.8, s.35.”

8By letter, dated February 10, 2004, received by OCCPS on February 11, 2004, the applicant requested that the Commission review the Chief’s decision. In its letter to the applicant of February 13, 2004, OCCPS advised that it received the applicant’s letter of February 10, 2004 on February 11, 2004. The letter pointed out that the Act stated that a request for a review must be made within thirty (30) days of receiving the TPS decision. In this case, the decision was deemed to be received on January 5, 2004 and thus the last day to file with OCCPS was February 4, 2004. The applicant was also advised that if the delay in receiving the decision was the fault of the TPS or Canada Post Office, he should provide the material before March 1, 2004, so that OCCPS could make a decision whether it had jurisdiction. In his reply to OCCPS dated February 25, 2004, the applicant stated, “I have no excuse for missing the February 4, 2004 deadline.” On March 30, 2004, by letter, OCCPS advised the applicant that, in its view, it had no jurisdiction to conduct a review because the request was received on February 11, 2004, six (6) days after the February 5, 2004 deadline. The letter also advised that the provisions of s.72(12) of the PSA made the March 30, 2004 decision final and binding.

9The question before the Divisional Court is: did OCCPS have jurisdiction? Was OCCPS correct when it found that it did not have jurisdiction in this case? The factum of counsel for OCCPS points out that prior to the extensive amendments to the Act in 1997, the time limit was “within thirty (30) days of receiving notice of the decision unless the Commission grants an extension”. That was under s.91(4). Now, under s.72(3), the Commission is no longer vested with a discretion to extend the prescribed time period. It must be assumed that this amendment had a purpose and was intended to bring about a change in policy. See: Sullivan, R., Sullivan and Driedger on the Construction of Statues, 4th ed. (Toronto: Butterworths, 2002), at p. 475. It is also to be remembered that OCCPS is a creature of statute and only has the jurisdiction given to it by the Legislature of Ontario.

10Assuming, without deciding, that we are required to review the actions of the Chief of Police, we are of the view, applying the standard of review of patently unreasonable, that his conduct, actions and decisions in this case do not reach that plateau. See: Grismaldi v. The Ontario Human Rights Commission, [2003] O.J. No. 419, Div. Ct., paragraphs [17] – [26], inclusive. For these reasons, the application for judicial review is dismissed.

11I have endorsed the back of the Application Record as follows: “This application is dismissed for the oral, recorded reasons of even date. Counsel for the Respondents do not ask for costs. No order as to costs.”

O’DRISCOLL J.

WHALEN J.

MOLLOY J.

Date of Reasons for Judgment: June 13, 2005

Date of Release: September 7, 2005

COURT FILE NO.: 455/04

DATE: 20050613

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, WHALEN AND MOLLOY JJ.

B E T W E E N: