COURT FILE NO.: 49/08

DATE: 20091104

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

WHALEN, DAMBROT AND SWINTON JJ.

B E T W E E N:

DIANE JOCKO, GERALDINE ROSE GANGARA, MELANIE ABOTOSSAWAY, CLYDE MCNICHOL AND CHARLES LEE

Applicants

• and -

CRIMINAL INJURIES COMPENSATION BOARD

Respondent

Kimberly R. Murray, for the Applicants

David E. Fine, for the Respondent

HEARD at Toronto: November 4, 2009

DAMBROT J.: (Orally)

1The five applicants have separately applied to the Criminal Injuries Compensation Board for compensation pursuant to the Compensation for Victims of Crime Act. They bring applications for judicial review because of the failure of the Board to provide them with certain disclosure that they sought from the Board. Their applications have been heard together.

Background

2In each of the five cases the Board requested that the investigating police officer complete a questionnaire concerning the investigation of the crime in question. That questionnaire asks the officer to identify the victim, identify the apparent cause of the injury to the victim, identify whether or not the victim co-operated with the police and attended court as required, and to provide details of the incident or a copy of the police synopsis or report, details of the offender and the outcome of the prosecution, if any. In addition, in each case the questionnaire was disclosed to the applicant and the investigating officer was summoned by the Board to give evidence at the particular applicant’s hearing. The summons also required the officer to bring with him or her any notes, statements or documents pertaining to the matter under consideration.

3By letter dated September 7, 2007, counsel for the applicants asked the Board to provide to them, prior to the hearings, the identity of any police witnesses together with the police officer’s duty notes, occurrence reports, witness statements, any other records pertaining to the police investigation of the incident, will say statements from the witness officers and the officers’ curriculum vitae outlining the officers’ work history, education and training.

4By letter dated October 1, 2007, the Board noted that the applicants had each received a copy of a police questionnaire identifying the investigating police officer in each case and outlining the officer’s statements in relation to the matter, but identified each officer again by name and badge number. The Board also acknowledged that it would disclose any other document in its possession in relation to the matters, but indicated that it possessed no such documents in these cases. The Board explained that the summons served on each officer orders the officer to bring to and produce at the hearing, any notes, statements or documents pertaining to the matter, but that it did not have the power to order the disclosure of such documents prior to the hearing.

5The applicants bring this application for judicial review of the decision of the Board refusing to provide them with the information and documents they sought, and seeks an order in the nature of mandamus requiring the Board to provide the requested information and documents.

6The application came on for hearing before the Divisional Court on May 25, 2009. The Court raised a concern that the application might be premature, an issue not addressed in the factum of either party, and adjourned the hearing of the matter to permit the parties to address the issue.

7None of the applications have been heard by the Board to date.

Analysis

8Generally, an application for judicial review of an interlocutory decision is premature. Ontario Courts have emphasized that they will not intervene in an administrative proceeding before it is complete unless there are exceptional circumstances (see Ontario Liquor Control Board v. Lippert Wine Agencies (2005), 76 O.R. (3d) 401 (Ont. C.A.) at paras. 41-42). In particular, allegations of inadequate disclosure raised by way of judicial review proceedings before the administrative proceeding is complete have been found to be premature (see Howe v. Institute of Chartered Accountants of Ontario (1994), 19 O.R. (3d) 483 (Ont. C.A.)).

9The majority in the Court of Appeal stated at paragragh 13:

I do not think we should encourage applications such as these which have the effect of fragmenting and protracting the proceedings except in the clearest of cases.

10We are of the view that this application is premature. The circumstances here are not exceptional and do not justify intervention by this Court at this stage of the proceedings. It is far from clear at this stage of the proceedings that any of the applicants will be prejudiced by the extent of the disclosure made to them by the Board, particularly since we cannot know at present what additional material will be produced by the witnesses in compliance with the summonses they received when they testify at the hearing.

11In any event, we are of the view that the applicants’ position is without merit.

12The applicants rely on s.8 of the Statutory Powers Procedures Act in support of their argument that the Board is obliged to provide them with the disclosure that they seek. That section provides:

Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

13Contrary to the position of the applicants, it is far from clear in these cases that the good character or propriety of conduct of the applicants will be an issue in these proceedings. But even if it is, the Board has provided all of the information in its possession in respect of the issue. It cannot disclose information that it does not possess. What is more, we are of the view that the furnishing of the police questionnaires taken together with the notice given to the applicants that s.17 of the Act may be an issue, complies with the requirement of s.8 in any event. The questionnaires furnish the applicants with reasonable information of any allegations that may be an issue at their hearings respecting their good character, the propriety of their conduct or their competence.

14The applicants argue, however, that the Board should obtain the information they want for them. We do not agree. It must be remembered that the proceedings before the Board are not adversarial. The Board is an impartial administrative body, charged with adjudicating compensation claims submitted to it by victims of violent crimes. It is neither an investigative agency nor an inquisitorial body. It does not have the duty to search out evidence in support of an applicant`s claim. If it attempted to do so, it would detract from its independent adjudicative function.

15In any event, the Board lacks the authority to compel police officers to provide the material requested by the applicants. The only power to require production of documents and information possessed by the Board is found in its power to summons. That power is found in Rule 8.1(1) of the Criminal Injuries Compensation Board Rules of Procedure, which provides:

The Board may summon any person to attend an oral or electronic hearing, give evidence on oath or affirmation and produce in evidence at the hearing such documents or other things as are specified in the summons. A summons to witness shall be signed by the Chair or the Chair`s designate.

16In our view, no broader power can be found in the Statutory Powers Procedure Act. The applicants argued that s.5.4(1) of the Statutory Powers Procedure Act provides the Board with the authority to compel police officers to make disclosure of the materials they seek in advance of their hearings. That subsection provides:

(1) If the tribunal`s rules made under s.25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,

(a) the exchange of documents;

(b) the oral or written examination of a party;

(c) the exchange of witness statements and reports of expert witnesses;

(d) the provision of particulars;

(e) any other form of disclosure.

17In our view s.5.4(1) does not provide the Board with the power to order the disclosure sought by the applicants. Section 5.4(1) is designed to require that parties to a tribunal hearing exchange pertinent information prior to their hearing. It is designed for adversarial hearings. Nothing in that provision gives jurisdiction to a Board to make orders compelling third parties or witnesses to make pre-hearing disclosure of information or documents to a party to a proceeding before the Board. The sole power of the Board to compel a witness to provide information or produce documents is the power to summons.

18In short, the Board cannot provide to the applicants the documents they seek because it does not have them, has no power to get them and should not be responsible for getting them in any event.

Disposition

19These applications are dismissed.

DAMBROT J.

WHALEN J.

SWINTON J.

Date of Reasons for Judgment: November 4, 2009

Date of Release: November 24, 2009

COURT FILE NO.: 49/08

DATE: 20091104

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT