COURT FILE NO.: DC-06-000158JR

DIVISIONAL COURT FILE NO: 158/06

DATE: 20060719

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MEEHAN, MACDONALD & CAMERON JJ.

IN THE MATTER OF AN APPLICATION UNDER Section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990 c. J1 and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194

B E T W E E N:

RAJIV SHARMA

Applicant

• and -

THE WATERLOO REGIONAL POLICE SERVICE

Respondent

Peter Thorning, for the Applicant

Steven M. Boorne, for the Respondent

HEARD: June 8, 2006

MEEHAN J.:

NATURE OF PROCEEDING

1The applicant police officer has been charged with offences under the Police Services Act, R.S.O. 1990, c. P.15, and has been served with a Notice of Hearing.

2The applicant seeks an order in the nature of certiorari quashing the refusal of the designated hearing officer to recuse himself for reasonable apprehension of bias.

3The applicant also seeks an order in the nature of prohibition, prohibiting the Chief of Police from appointing a police officer or former police officer to preside over his trial.

BACKGROUND

4The applicant was a uniformed member of the respondent Waterloo Regional Police Service (the “Police Service”). He was accused of being involved in a private security company in July, 2003 without the permission of the Chief of Police. This involvement came to the attention of the Private Investigators and Security Guards Branch of the Ministry of Public Safety and Security in August, 2003.

5The applicant was verbally warned to cease and desist from operating an unlicensed security guard agency. He was also issued a letter from the Ministry advising the same. The letter indicated that the Chief of the Waterloo Regional Police would be apprised of the circumstances of the investigation.

6The respondent, the Police Service, served the applicant with a formal notice of investigation. The applicant did not report the full nature of his involvement with the private security company. On February 25, 2004, he failed to answer questions of investigating officers.

7On that same date, the Chief signed a Notice of Hearing concerning the applicant and appointed Anne McConnell as hearing officer under s. 76 of the Police Services Act. The Notice of Hearing was served on the applicant on March 1, 2004. He was charged with five offences under the Police Services Act, including corrupt practice, neglect of duty, discreditable conduct, engaging in secondary activity and insubordination.

8On November 26, 2004, the applicant filed a complaint with the Ontario Human Rights Commission (“OHRC”), alleging various incidents of harassment and/or discrimination by senior members of the Police Service.

9On December 7, 2004, Hearing Officer McConnell received submissions on a motion alleging a reasonable apprehension of bias, based on the fact that she had dealt with the applicant on a previous disciplinary matter, when she oversaw the Waterloo Regional Police Service’s Policing Standards Branch in 1997. It was also alleged that she was biased due to her proximity to the senior officers against whom the human rights complaint had been made. McConnell recused herself.

10On December 10, 2004, a new hearing officer, Robert Fitches (“Fitches”), was authorized by the Chief of Police to preside over the proceeding. Fitches is a former police officer who was not associated with the Police Service. On that same date, the applicant discharged his counsel and the matter was adjourned.

11On February 15, 2005, the applicant’s current counsel requested by letter that the Chief of Police reconsider the designation of Fitches as hearing officer and, instead, appoint a judge or retired judge to hear the matter.

12The applicant received two volumes of additional disclosure on March 2, 2005.

13On April 7, 2005, the hearing proceeded. The applicant brought two motions. First, he sought an adjournment of the proceedings sine die pending the outcome of the OHRC complaint.

14Second, the applicant brought a motion seeking the recusal of Hearing Officer Fitches on the basis that his appointment by the Chief raised a reasonable apprehension of bias. The applicant argued that since the Chief would be a witness to the proceeding, the Chief could not appoint another police officer or former police officer to preside over a matter that would involve an assessment of his own conduct. Further, the Chief of Police had a stake in the outcome of the proceeding.

15On May 10, 2005, the hearing officer, Fitches, denied both of the of the applicant’s motions.

16On November 8, 2005, the respondent submitted a reply to the applicant’s OHRC complaint. On December 1, 2005, the respondent’s request to dismiss the complaint was denied, and the investigation of the complaints proceeded.

RELEVANT STATUTORY PROVISIONS

17Section 76 of the Police Services Act reads as follows:

76.(1) A chief of police may authorize a police officer or a former police officer of the rank of inspector or higher or a judge or former judge who has retired from office to conduct a hearing under subsection 64(7) or to act under subsection 64(11) or (15).

(2) A chief of police may authorize any member of any police force to exercise a power or perform a duty of the chief of police under this Part, other than those described in subsection (1).

(3) If a chief of police authorizes a police officer from another police force, of the rank of inspector or higher, to conduct a hearing under subsection 64(7), that police officer may do so only with the approval of his or her chief of police.

THE COURT’S JURISDICTION

18The Divisional Court has authority to hear this case, as a judicial review of a decision made in the exercise of a statutory power, under ss. 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1:

2. On an application by way of originating notice, which may be styled ‘Notice of Application for Judicial Review’, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

3. Proceedings by way of application for an order in the nature of mandamus, prohibition, or certiorari.

4. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

6(1) Subject to subsection (2), an application for judicial review shall be made to the Divisional Court.

PREMATURITY

19The respondent raises the issue of prematurity as a ground for dismissing the application for judicial review. As stated in Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798 (Div. Ct.), there is a “long line of authority which has indicated the need to avoid a piecemeal approach to judicial review of administrative action”.

20In Howe v. Institute of Chartered Accountants of Ontario (1994), 1994 3360 (ON CA), 19 O.R. (3d) 483 (C.A.), Finlayson J.A. wrote as follows:

I think it is trite law that the court will only interfere with a preliminary ruling made by an administrative tribunal where the tribunal never had jurisdiction or has irretrievably lost it.

21The Divisional Court recently chose to interfere at this early stage in the proceedings in a similar situation. In McCormack v. Toronto Police Service, [2005] O.J. No. 5149, the court considered the refusal of a hearing officer to recuse himself based on allegations of reasonable apprehension of bias.

THE ISSUES

a) What is the appropriate standard of review with respect to Chief Gravill’s decision to appoint Hearing Officer Fitches and Mr. Fitches’ refusal to recuse himself?

b) Is the decision of Chief Gravill to designate Hearing Officer Fitches subject to judicial review as lacking in procedural fairness or as raising a reasonable apprehension of bias?

c) Does the refusal of the hearing officer to recuse himself either on the basis of institutional or personal factors raise a reasonable apprehension of bias?

22The test for apprehension of bias is to be found in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:

The apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information … that test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly?’

23It has been said that it is “a jurisdictional issue as to whether there exists a reasonable apprehension of bias on the part of the decision-maker, any error in respect of this is therefore a reviewable error of law”. (Toronto (Metropolitan Police Services Board) v. Young, [1997] O.J. No. 1076 (Div. Ct.) at para. 17)

24The standard of review is correctness.

25The applicant submits that the requirements of institutional independence are set out in R. v. Valente (1985), 1985 25 (SCC), 23 C.C.C. (3d) 193. The Supreme Court identified three essential conditions of judicial independence:

1. security of tenure;

2. financial security; and,

3. institutional independence.

26We do not find the comparison of a hearing officer under the Police Act with administrative boards in general or courts in general as helpful. While we understand the hearing officer in this case is very experienced, his duties are only directed towards the fact situation here and not on a continuing basis as a member of a board or court.

27The legislature here has allowed for institutional bias in determining the manner of appointment under s. 76(1) of the Police Act. The hearing officer’s decision is subject to review by the Ontario Civil Commission of Police Services and the Divisional Court.

28The criteria of retired police officers not associated with this force is capable of founding such independence as necessary. There can be no fear of reprisal or penalty being inflicted upon this hearing officer even if the Chief is involved as a witness.

29The OHRC’s investigation is a separate proceeding and need not necessarily affect the course of this hearing. There is no evidence that continuing the hearing would be prejudicial to the accused officer. (See Grover v. Canada (Attorney General) (2005), 2005 63813 (ON SC), 78 O.R. (3d) 126)

30The act of the Chief in appointing this hearing officer, rather than a judge or retired judge, does not, in our view, raise a question of procedural unfairness or reasonable apprehension of bias.

31There is no evidence of any direct involvement of the hearing officer in any of the preceding events. The circumstances which led to the granting of judicial review in McCormack v. Toronto (City) Police Services, [2005] O.J. No. 5149 are not at issue here.

32The application for judicial review in the nature of certiorari quashing the decision of the hearing officer refusing to recuse himself is dismissed and the application for an order prohibiting the Chief of Police from appointing a police officer or former officer is dismissed as well.

33The counsel for the respondent is to make submissions in writing within ten days and the applicant’s counsel is to reply within a further fifteen days relating to costs.

MEEHAN J.

MACDONALD J.

CAMERON J.

Released: 200606

COURT FILE NO.: DC-06-000158JR

DIVISIONAL COURT FILE NO.: 158/06

DATE: 20060719

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

meehan, macdonald & cameron jj.