COURT FILE NO.: 417/03

DATE: 20060127

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, JENNINGS AND WILSON JJ.

B E T W E E N:

POLICE CONSTABLE JEFFREY GOUGH

Appellant

• and -

THE PEEL REGIONAL POLICE SERVICE

Respondent

Leo A. Kinahan, for the Appellant Officer

Andrew J. Heal and

Daniel A. Nelson, for the Respondent Police Service

HEARD at Toronto: January 27, 2006

O’DRISCOLL J.: (Orally)

1The appellant officer appeals to this Court under the provisions of s.71(1) of the Police Services Act, R.S.O. 1990, c.P.15, as amended (PSA) from a decision of Ontario Civilian Commission on Police Services (“Commission”), dated June 5, 2003.

2The hearing officer made an interlocutory ruling on September 9, 2002, concerning s.69(18) of the PSA, the section dealing with the “six month limitation period”. The ruling was against the officer. The case was then adjourned to December 10, 2002. On December 10, 2002, the appellant officer pleaded guilty to an Agreed Statement of Facts and received an agreed penalty. The appellant officer then appealed to the Commission under s.70(1) of the PSA by way of Notice of Appeal, dated January 2, 2003. This Notice of Appeal challenged the September 9, 2002 ruling of the hearing officer.

3The Commission heard the appeal on June 2, 2003 and dismissed the appeal on June 5, 2003, holding that the Notice of Appeal of January 2, 2003 was out of time and the Commission had no jurisdiction to extend the time to appeal. The Commission held that the thirty (30) day time limit ran from the date of the interlocutory ruling on September 9, 2002, and with the Notice of Appeal being dated January 2, 2003, the appeal was out of date and the Commission, therefore, had no jurisdiction.

4We are of the view, with respect, that the Commission was in error when it held in its Reasons that it had no jurisdiction. The September 9, 2002 ruling of the hearing officer was interlocutory. No appeal lay from that ruling. The officer could only appeal to the Commission from the hearing officer’s decision on the merits and that was dated December 10, 2003. Thus, the Notice of Appeal of January 2, 2003 was timely.

5As we read the factum of counsel for the respondent and from his answers to our questions, he does not appear to disagree with the reasons set out above. In our view, the only legal recourse open on this appeal is to allow the appeal, set aside the Commission’s Order/Decision of June 5, 2003 and remit the matter to the Commission to determine the appeal on the merits. This is to be done, if the respondent is so advised.

6Counsel advise that no one is seeking costs and, therefore, there will be no order as to costs.

O’DRISCOLL J.

JENNINGS J.

WILSON J.

Date of Reasons for Judgment: January 27, 2006

Date of Release: February 22, 2006

COURT FILE NO.: 417/03

DATE: 20060127

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT