COURT FILE NO.: 415/06

DATE: 20061129

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, SWINTON AND MURRAY JJ.

B E T W E E N:

PETER JAMES GREER

Applicant

• and -

SUPERINTENDENT M.P.B. ELBERS, GWEN M. BONIFACE, COMMISSIONER OF THE ONTARIO PROVINCIAL POLICE and LISA SMITH

Respondents

Peter Chisholm, for the Applicant

Lorenzo D. Policelli, for the Respondents

HEARD at Toronto: November 29, 2006

murray J.: (Orally)

1This is an application for judicial review of a decision of Superintendent Elbers of the Ontario Provincial Police, dated June 16, 2006.

2The applicant in this case, P.C. Greer asked Superintendent Elbers to quash a notice of hearing dated November 18, 2005. He refused. That refusal is the subject of this judicial review application.

3The case results from the following facts. Ms. Lisa Smith made a complaint against P.C. Greer alleging misconduct. An initial investigation and written report led to a decision by Superintendent MacDonald that the complaint was unsubstantiated and pursuant to s.64(6) of the Police Services Act, Superintendent MacDonald communicated this outcome to the complainant, Ms. Smith. Section 64(6) of the Police Services Act reads as follows:

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 is 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.

4On November 18, 2005, after reviewing some of the photographs referred to in the investigative report, Superintendent MacDonald issued a notice of hearing dated November 18, 2005, charging the application with neglect of duty. This notice of hearing was issued pursuant to s.64(7) of the Police Services Act which reads as follows:

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.

5The applicant asked Superintendent Elbers to quash the notice of hearing on the basis that an adjudicator would have no jurisdiction to deal with the complaint of Ms. Smith or the charges relating thereto. The essence of the point of the applicant’s position is that once a decision is made that a complaint is unsubstantiated under s.64(6) of the Police Services Act, the decision maker is functus officio and cannot subsequently issue a notice of hearing with respect to the subject matter of the complaint.

6We are in agreement that the standard of review is correctness given that the alleged error is one that goes to the jurisdiction of Superintendent Elbers to hear the charges.

7We are also of the view that Superintendent MacDonald was not prohibited from revisiting a decision that the complaint was unsubstantiated. Such a decision in our opinion is not a final adjudicative decision and the doctrine of functus officio is not applicable. Superintendent MacDonald was performing a screening function that was investigative, not adjudicative and therefore administrative in nature.

8Our conclusion therefore is that Superintendent Elbers did not commit a reviewable jurisdictional error by refusing to quash the notice of hearing. This application for judicial review is therefore dismissed.

MATLOW J.

9I endorse the application record on behalf of the Court as follows: “For the oral reasons delivered by Murray J., this application is dismissed. No costs.”

MURRAY J.

MATLOW J.

SWINTON J.

Date of Reasons for Judgment: November 29, 2006

Date of Release: November 30, 2006

COURT FILE NO.: 415/06

DATE: 20061129

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT