CITATION: Rutigliano v. Commissioner, Ontario Provincial Police, 2010 ONSC 6805

COURT FILE NO.: 549/10

DATE: 20101209

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: Michael Rutigliano v. Commissioner, Ontario Provincial Police

BEFORE: Justice Swinton

COUNSEL: Owen M. Rees, for the Applicant/Moving Party

David Rose, for the Respondent/Responding Party

HEARD AT TORONTO: December 8, 2010

E N D O R S E M E N T

Swinton J.

Overview

[1] The applicant, Michael Rutigliano, has brought an application for judicial review to obtain an order in the nature of prohibition and certiorari to prevent Adjudicator Elbers from continuing as an adjudicator under the Police Services Act, R.S.O. 1990, c. P.15 to determine a charge of discreditable conduct. The charge is based on an allegation that the applicant met with a member of the Mafia for purposes of obtaining assistance in debt collection and then lied to his superiors when confronted with the allegation.

[2] The application for judicial review is based on the ground of reasonable apprehension of bias. The adjudicator refused to recuse himself on this basis.

[3] In this motion, the applicant seeks a stay of the proceedings scheduled before the adjudicator on December 13 and 15, 2010 until the hearing of the application on January 5, 2011. He also sought a limited order to defer publication of certain information, which was granted at the outset of this hearing.

The Test

[4] The test for a stay requires a court to determine if there is a serious issue to be determined in the application, whether the applicant will suffer irreparable harm if the stay is not granted, and where the balance of convenience lies. Ultimately, the issue is whether it is in the interests of justice that a stay be granted (Longley v. Canada (Attorney General), 2007 ONCA 149, [2007] O.J. No. 929 (C.A.) at para. 15).

Is there a serious issue to be determined?

[5] The test for a reasonable apprehension of bias is set out in Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at para. 74: would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly. The inquiry is highly fact-specific, and the apprehension must rest on serious grounds (at para. 76-77). This Court has stated, in McCormack v. Toronto (City) Police Service, [2005] O.J. No. 5149 that the threshold for apprehension of bias is high (at para. 25).

[6] The applicant rests his argument on three bases. First, the adjudicator has presided over two other disciplinary hearings in which the applicant was charged with discreditable conduct. Second, the adjudicator will have to rule on the credibility of and make findings against two senior OPP officers in the course of a motion concerning the fairness of the investigation. The adjudicator is said to have had a working relationship with Chief Superintendent Smith and a working and personal relationship with Detective Inspector George. Third, the conduct of the adjudicator gives cause for concern, because of remarks about the applicant’s hearings counsel Mr. Wigderson and because of his denial of adjournments pending the application for judicial review and the motion for a stay.

[7] It is not my task to determine the merits of the application; rather, I must make a preliminary assessment of the merits. However, the strength of the case is a factor to be considered in determining whether the stay should be granted.

[8] The adjudicator first presided over a hearing in which the applicant pleaded guilty in March 2004 on the basis of a joint submission. While the adjudicator commented on the gravity of the charge, he also commented favourably on the good character evidence put before him and accepted the joint submission on penalty.

[9] Later in 2004, the applicant was charged with two charges of discreditable conduct relating to his presence at a social club that was raided by police on the suspicion it was a gaming house. The applicant did not object to the adjudicator presiding, despite the earlier hearing. After evidence was heard, in early 2005, the adjudicator found the applicant not guilty of the charges. In doing so, he made no adverse comment about the applicant in the reasons.

[10] The applicant now objects that the adjudicator may be adversely influenced by the fact of the previous charges, which may lead to an inference of bad character or the recall of inadmissible evidence. I note that the facts in the present case are significantly different from the situation in Re Batorski and Moody, [1983] O.J. No. 3129 (Div. Ct.), where a reasonable apprehension of bias was found because the adjudicator had been involved in three recent hearings where he found the office guilty, largely on an issue of credibility (at para. 6). Nevertheless, given the low threshold, I conclude that this allegation meets the threshold of a serious issue to be determined.

[11] As to the allegations relating to the relationship between the adjudicator and Chief Superintendent Smith, the evidence indicates at most a professional relationship, but no close working relationship and no personal relationship. While there is some evidence of a personal relationship between the adjudicator and Detective Inspector George, the relationship is not a close one. The evidence suggests some socialization at some OPP functions. Again, there was a professional relationship, but Detective Inspector George did not work closely at any time with the adjudicator.

[12] The evidence here does not suggest a close relationship between the adjudicator and the witnesses. Therefore, it is noteworthy to consider McCormack, above, where the Divisional Court did not find a reasonable apprehension of bias despite the adjudicator’s close working relationship with a key prosecution witness (at para. 25).

[13] In my view, the evidence of the treatment of counsel and the refusal of adjournments do not suggest that the adjudicator has closed his mind in any way.

[14] However, the applicant meets the threshold of a serious issue to be determined, primarily because of the adjudicator’s role in the earlier hearings.

Irreparable Harm

[15] The applicant seeks to stay two days of hearing scheduled for December 13 and 15, where the adjudicator will hear motions for a publication ban (not contested), for disclosure of material relevant to a further motion, for a stay of the disciplinary proceedings until unrelated criminal proceedings are finished, for an order quashing the prosecutors’ designation and to challenge the extension of time for delivery of the Notice of Hearing. He argues that he will suffer irreparable harm if he has to continue with a hearing which is fatally flawed because of reasonable apprehension of bias. He will never recover the legal fees incurred for these motions.

[16] The prosecution has offered to accept the results in any of those motions, if the outcome is favourable to the applicant and the applicant succeeds in his application for judicial review. If he is unsuccessful on the motions, but succeeds on the judicial review, he will be able to relitigate the motions. The issues in those motions are essentially legal in nature and do not require findings of credibility. Therefore, the respondent submits, the applicant is only prejudiced if he succeeds on the application for judicial review and decides to relitigate some or all of the motions.

[17] I accept that the applicant will not recover the expense of those relitigated motions if the proceedings have to begin again with another adjudicator, and that is evidence of irreparable harm. However, this is not a case like Booth v. Huxter, [1993] O.J. No. 2810 (Div. Ct.) where all parties faced two to three weeks of legal costs that would be wasted if the hearing continued and the application succeeded.

Balance of convenience

[18] There is a public interest in proceeding with the hearings scheduled next week. There has been extensive delay in scheduling hearings in this matter, in part because the applicant’s counsel is occupied with both the disciplinary proceedings and separate criminal proceedings. The recusal motion was scheduled in September, after a lengthy hearing to set dates in March, at which the applicant sought December dates. If these hearing dates are lost and the application does not succeed, it is evident that there will be further delay in getting to a hearing of the motions, let alone a hearing on the merits. That significant delay is a factor distinguishing this case from Ontario (Commissioner, Provincial Police) v. Macdonald, [2008] O.J. No. 5053 (Div. Ct.) at paras. 15-16).

[19] The applicant is eligible to opt for retirement in May 2011. Should he leave the police service, disciplinary proceedings would come to an end. There is a public interest in having these serious charges determined on the merits and a real risk of harm to that public interest from further delay.

[20] To prove a reasonable apprehension of bias is a heavy burden. Having regard to the strength of the case, the harm that would be suffered by the applicant, and the public interest in having the charge determined on the merits, the interests of justice do not warrant a stay to prevent the scheduled two days of motions.

Conclusion

[21] Therefore, the motion for a stay is dismissed. Costs of this motion are reserved to the panel hearing the application.

Swinton J.

DATE: December 9, 2010