CITATION: Magiskan v. Nishnawbe-Aski Police Service, 2010 ONSC 163
COURT FILE NO.: D07-014
DATE: 20100112
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
MATLOW, J., REILLY, J. and ASTON, J.
B E T W E E N:
Patricia Magiskan
Applicant
- and -
Nishnawbe-Aski Police Service and Her Majesty the Queen in Right of Ontario representing the Minister of Community Safety and Correctional Services and the Ontario Provincial Police
Respondents
Francis Thatcher, for the Applicant
John Erickson, for the Respondent Nishnawbe-Aski Police Service
Jennifer Richards, for Her Majesty the Queen in Right of Ontario
Heard: November 30, 2009, at Thunder Bay
REASONS FOR JUDGMENT
ASTON, J.
[1] The applicant, Patricia Magiskan, is a former First Nations Constable with the Nishnawbe-Aski Police Service (“NAPS”). She seeks judicial review of the decision of the Chief of Police of NAPS to terminate her employment on July 14, 1998, and the subsequent decision of O.P.P. Commissioner Gwen Boniface to terminate her appointment as a First Nations Constable on November 2, 1998. NAPS is a non-statutory Aboriginal Police Service. It is not a police service under the Police Services Act. However, NAPS police officers are First Nations Constables appointed under s. 54 of the Police Services Act.
Factual Background
[2] The applicant was appointed a First Nations Constable by order of then-O.P.P. Commissioner Thomas O’Grady on May 5, 1994. She was posted to the Aroland First Nation as a probationary police officer upon graduating from the Ontario Police College in July, 1994. She was subsequently appointed to permanent status as a police officer at Aroland First Nation on the recommendation of the O.P.P. She was promoted from 2^nd^ class to 1^st^ class constable on May 15, 1997. NAPS did not police the Aroland First Nation at that time. Any mentoring, coaching and evaluation of the Applicant was provided by the OPP from its detachment at Geraldton. O.P.P performance reviews, dated June 17, 1997, and October 9, 1997, identified specific and significant concerns with the applicant’s communication skills, leadership attributes, reporting and other official paperwork and with her general level of commitment to her job.
[3] NAPS became involved with the applicant after it entered into a tripartite agreement with the federal and provincial governments according to which NAPS took over policing a number of First Nations communities. Specifically, NAPS took over policing of Aroland First Nation as of April 1, 1998. It agreed to offer employment to First Nations Constables in good standing as at that date. In anticipation of the transfer of responsibility to NAPS, the applicant was asked to sign a new employment contract which she did on December 15, 1997. The employment contract provided that during the first twelve months of employment with NAPS she was on probationary status and could be terminated without notice during that period, “in the absolute discretion” of NAPS. One of the principal complaints of the applicant is that she was misled about the nature of the contract and had no opportunity to properly consider it or get legal advice before signing it. Rather she simply trusted her superior officer in assurances the contract did not materially change the nature of her employment.
[4] On December 28, 1997, the applicant was charged with obstructing a peace officer and assaulting a peace officer. In January, 1998, the applicant was also charged with breach of trust in relation to the alleged diversion of court-fine money she collected and with failing to attend court as a witness. Also, in March, 1998 the applicant was banned from the premises of a business known as B & J Variety and O’Sullivan Gas Bar due to her “unprofessional behaviour”. The criminal charges took a lengthy amount of time to be resolved. Ultimately, the failure to attend court charge was withdrawn. Convictions were entered on the remaining charges but these were quashed on appeal and acquittals entered in October, 2003.
[5] The applicant was on disability leave from December 29, 1997, (the day after her first criminal charge) until the end of June or early July, 1998. Though able to return to work at that time, she did not actually do so. She never actively worked for NAPS though NAPS had become her employer by virtue of the employment contract. NAPS had not had access to the applicant’s personnel file before hiring her on a probationary basis in December, 1997. It subsequently obtained her personnel records.
[6] The applicant was terminated from her employment with NAPS by letter dated July 14, 1998. This was apparently done without notice or warning and without a hearing. The letter stated that the reason was “unsatisfactory work performance” and it referred to a review of her personnel file. There was no invitation for the applicant to respond to the letter.
[7] On July 30, 1998, Acting Chief of Police Luloff of NAPS wrote to the O.P.P. Detachment at Geraldton to indicate that the applicant had retained counsel “regarding an unjust dismissal suit” against NAPS. Chief Luloff requested copies of all documentation from Sergeant Noel and Staff Sergeant Squires of the Geraldton detachment “regarding her unsatisfactory work performance” for the purpose of submitting it to NAPS own lawyer. There is no evidence in the material before us of any response to that letter.
[8] At the subsequent request of the Acting Chief Luloff the then-O.P.P. Commissioner Gwen Boniface terminated the applicant’s appointment as a First Nations Constable effective November 2, 1998.
[9] The applicant retained a lawyer and brought an application for judicial review as against the respondent, Nishnawbe-Aski Police Service, on January 15, 1999. That judicial review application did not name the O.P.P. or the Province as a respondent, only NAPS. It was dismissed for delay in July, 2003, though the applicant learned of that only in early 2004. She retained her present counsel and commenced a civil proceeding for wrongful dismissal in July, 2004 which was voluntarily discontinued three years later in 2007.
[10] This judicial review application was started on September 28, 2007. It was not perfected until October 17, 2008, more than a year after it was filed, four years after the wrongful dismissal action was started, five years after the first judicial review application was dismissed for delay and ten years after the impugned decision was made.
Issues
[11] The parties identify the following issues:
(a) Should this application be dismissed for delay?
(b) Was the applicant employed by both the Nishnawbe-Aski Police Service and the O.P.P.?
(c) Did the respondents, or either of them, owe a duty of procedural fairness to the applicant and, if so, was that duty fulfilled?
The Applicant’s position
[12] The applicant asserts she was employed by both the NAPS and the O.P.P.
[13] She submits that:
- Both NAPS and the O.P.P. owed a duty of procedural fairness to her
- This court’s decision in McDonald v. Anishinabek Police Service (2006), 2006 37598 (ON SCDC), 83 O.R. (3d) 132 establishes that because she was a public officer, not a mere employee, she was owed a duty of procedural fairness by NAPS.
- There is no reasonable basis on which to distinguish the applicant’s appointment as a First Nations Constable from the status enjoyed by other police officers. As a public office holder, both respondents owed her a duty of procedural fairness.
[14] The applicant submits that the respondents’ duty of procedural fairness was not fulfilled. With respect to the termination of her employment with NAPS, she claims she was neither informed of the reasons for her dismissal nor afforded the opportunity to respond. Furthermore, with respect to termination of the applicant’s appointment as a First Nations Constable under the Police Services Act, the O.P.P. Commissioner failed to afford the applicant her statutory procedural rights under s. 54 of that Act to disclosure of the reasons for termination and an opportunity to respond.
[15] On the issue of delay, the applicant submits the considerable delay in commencing the within action is offset by the “complete documentary record” before the court regarding the termination of the applicant’s employment with the NAPS and her appointment as a First Nations Constable. The respondents knew by the letter of July 30, 1988, noted above that they needed to preserve a record of what transpired because they were on notice that the applicant had retained counsel to challenge her dismissal. The applicant submits that an adequate explanation for the delay has been provided in her affidavit of October 17, 2007. Furthermore, this court confirmed for the first time only two years ago in the McDonald case that police officers employed with non-statutory aboriginal police services had the right to judicial review of decisions regarding their employment.
Position of the Respondent – Nishnawbe-Aski Police Service
[16] NAPS claims it will suffer prejudice if this application for judicial review is permitted to proceed because all personnel who had personal knowledge of the matters at issue have either retired or moved on to other jobs. There is nobody presently employed by NAPS who is available as a witness. Any witnesses who can be located and who would be available to give evidence will be handicapped by the passage of time. There does not appear to be any reasonable explanation for the applicant’s failure to follow through with the judicial review application commenced in 1999 or for her delay in commencing this application for judicial review. This was an employment matter which called for an expeditious resolution should it proceed by way of application for judicial review. Furthermore, the Supreme Court of Canada decision in Dunsmuir confirmed that wrongful dismissal claims should be addressed by an ordinary action based on the employment contract, not by the judicial review process.
Position of the Crown Respondents
[17] The O.P.P and the Ministry also submit this application ought to be dismissed for “extreme, unjustified” delay. A delay of six months or more in commencing an application, or 12 months in the perfection of an application has been held to be serious enough to warrant dismissal of an application for judicial review. The applicant brings this judicial review nine years after the impugned decisions were made. Furthermore, the applicant failed to perfect her application until over a year after the original application was filed.
[18] The Crown respondents also submit the applicant has not provided any reasonable explanation for the delay. The applicant knew or ought to have known the issues which are the subject of this application at the time of her dismissal. Indeed, by commencing the application for judicial review in 1999 and the civil suit in 2004, the applicant had clearly turned her mind to potential remedies. With respect to the O.P.P Commissioner’s decision, judicial review was available to the applicant immediately in 1998, long before the McDonald decision in 2006, as confirmed in the decision in Bruce v. Ontario (Provincial Police), [1998] O.J. No. 2024.
[19] The Crown respondents submit they will be unduly prejudiced if this application proceeds. They say they are in no position today to defend against allegations pertaining to the termination of the applicant’s appointment in 1998. The Commissioner who terminated the applicant’s appointment is no longer with the O.P.P. and there are no personnel still employed who were directly involved with the termination.
[20] The Crown respondents submit the applicant was never an employee of the O.P.P, or if it was an “employer” before 1998 such relationship ended with the tripartite agreement and the transition of policing responsibility to NAPS effective April 1, 1998.
Standard of Review
[21] Where the allegation is that the applicant has been denied procedural fairness, it is not necessary to assess the appropriate standard of review. Rather, the court is required to evaluate whether procedural fairness and natural justice have been afforded to the applicant in the exercise of a statutory power of decision. The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly. The duty presupposes that the decision maker is exercising a statutory power of decision. The extent of the duty depends on several factors, including the nature of the decision and the consequences for the applicant.
[22] Consideration of procedural fairness and natural justice also must take into account the issue of delay that is raised by the respondents. Even an apparently meritorious claim by the applicant may be dismissed on this basis.
Disposition
[23] We are persuaded that this application must be dismissed on account of delay.
[24] As early as July, 1998 the applicant consulted a lawyer to challenge her dismissal. This is evident from the letter of July 30, 1998. She was represented by counsel in bringing the first judicial review application in 1999 and by her present counsel in the wrongful dismissal action commenced in March, 2004. Alhough the applicant relies heavily on the McDonald decision in 2006 as a landmark case establishing the right of judicial review of a First Nations police service decision to terminate the employment of one of its officers, the right of judicial review of an O.P.P. Commissioner’s decision to terminate an appointment under the Police Services Act was established in 1998 in the Bruce decision. The applicant’s ability to challenge the decision of O.P.P. Commissioner Bonniface by judicial review had been established by the time she first brought an application for judicial review in 1999. It did not depend on some new right or remedy her present counsel discovered from later jurisprudence.
[25] It is not surprising that counsel for the applicant cannot point to any precedent in which an application for judicial review was brought years after the impugned decision. This case should not establish a new benchmark. There is insufficient explanation for the delay in bringing this application against the Crown respondents. Furthermore, through the affidavit of Brad Blair, those respondents have established actual prejudice in their ability to answer and defend this application.
[26] The application for judicial review of the NAPS decision to terminate the applicant’s employment is perhaps less prejudicial to that respondent in that such an application was made within six months, in January 1999. On the other hand, no-one now employed with NAPS has any personal knowledge of what transpired in July, 1998. Even if former Chiefs of Police Weekes and Luboff or O.P.P officers Noel or Squires (who were involved in the applicant’s O.P.P. evaluations in 1997) could be available as witnesses, it is quite obvious that their memory of the events would be challenged by the passage of time.
[27] The applicant’s main explanation for the delay in challenging the NAPS decision to terminate her employment is her preoccupation with the criminal charges she was facing. Originally convicted in January, 2000, it was not until October, 2003, that she was exonerated on appeal. She says she was not aware of the fact her original judicial review application was dismissed (in July 2003) until early in 2004 when she consulted her present counsel. His advice was that judicial review was unavailable to her in relation to NAPS, and the wrongful dismissal proceeding was started in July 2004 as an alternative. Apparently she did not diligently pursue that action because it had not even proceeded to discoveries when it was dismissed more than three years later. We find her explanations for the delay to be unsatisfactory.
[28] Furthermore, the delay of thirteen months in perfecting this application after it was first filed is not satisfactorily explained by a perceived need to wait for the respondents’ materials.
[29] Having concluded that this application for judicial review must be dismissed on basis of delay, it is our view that it is not necessary or desirable that we decide whether the NAPS decision to terminate the applicant’s employment is subject to attack only by an action for damages for wrongful dismissal.
Aston J.
Matlow J.
RELEASED: January 12, 2010 Reilly J.
CITATION: Magiskan v. Nishnawbe-Aski Police Service, 2010 ONSC 163
COURT FILE NO.: D07-014
DATE: 20100112
ONTARIO
SUPERIOR COURT OF JUSTICE
MATLOW, J., REILLY, J. and ASTON, J.
B E T W E E N:
Patricia Magiskan
Applicant
- and -
Nishnawbe-Aski Police Service and Her Majesty the Queen in Right of Ontario representing the Minister of Community Safety and Correctional Services and the Ontario Provincial Police
Respondents
REASONS FOR JUDGMENT
ASTON J.
RELEASED: January 12, 2010