Rutigliano v. Commissioner, O.P.P., 2011 ONSC 98

CITATION: Rutigliano v. Commissioner, O.P.P. 2011 ONSC 98

DIVISIONAL COURT FILE NO.: 549/10

DATE: 20110105

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER, ASTON AND LEDERER JJ.

BETWEEN:

MICHAEL RUTIGLIANO Applicant

– and –

COMMISSIONER, ONTARIO PROVINCIAL POLICE Respondent

Owen M. Rees, for the Applicant

David Rose, for the Respondent

HEARD at Toronto: January 5, 2011

ORAL REASONS FOR JUDGMENT

LEDERER J. (orally)

1We begin by noting that on December 8, 2010, by order of Swinton J., a limited publication ban, was put in place. It remains in force.

2The applicant, Michael Rutigliano, has brought an application for judicial review to obtain an order prohibiting Supt. Morris Elbers, retired, from continuing as an adjudicator in this matter under the Police Services Act, R.S.O. 1990 c.P.15. The, then current, Commissioner of the Ontario Provincial Police made the appointment to determine a charge of discreditable conduct brought against the applicant.

3This Court has been reluctant to exercise its discretion to intervene in ongoing administrative proceedings. Administrative tribunals have specialized expertise in the areas defined by their mandate which the Courts do not share. Proceedings before them are meant to be expeditious and speaking relatively, inexpensive. Any interference by the courts can detract from these goals. It would not be consistent with these aims to permit those appearing before an administrative tribunal to come to the Divisional Court every time they feel aggrieved by some preliminary, interlocutory or interim determination. Too easy adherence to such concerns would deny the deference those with specialized knowledge deserve and subvert the processes that direct their decision-making function.

4The legislature, generally, outlines the procedure leading to a decision and provides for the appeals and reviews it considers appropriate. We expect parties to administrative matters to exhaust the remedies and appeal routes set by the administrative regime before they resort to judicial review. These principles are more fully canvassed in Ackerman v. Ontario Provincial Police, 2010 ONSC 910. This is not to say that this Court will never intervene in the proceedings of tribunals prior to their completion. If it appears from the outset that a proceeding before an administrative tribunal will be fatally flawed, it may be challenged by an application for judicial review even where a right of appeal is provided for within the administrative scheme. It should go without saying that such circumstances will be rare.

5In this case, is the process fatally flawed by the appointment of Supt. Elbers as the arbitrator? Regrettably, we find that it is. The issue is whether or not there is a reasonable apprehension that the arbitrator is biased. The test for a reasonable apprehension of bias is: “What would an informed person, viewing the matter realistically and practically and having thought the matter through, conclude? Would he think it more likely than not that the [adjudicator], whether consciously or unconsciously, would not decide fairly?” (see Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369 and Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259).

6The problem is that Supt. Elbers is familiar with Michael Rutigliano and aspects of his disciplinary record as an officer with the Ontario Provincial Police. This will be the third disciplinary hearing regarding charges against Michael Rutigliano for which Supt. Elbers has been appointed as the adjudicator. He is aware of the circumstances surrounding both of the earlier charges. He knows that in the first case, Michael Rutigliano pleaded guilty to threatening a past business partner with death and that in the second, where the charges were dismissed, Michael Rutigliano was found in a social club being operated as a gaming house.

7During the course of the first of the earlier proceedings, Supt. Elbers commented on the character and conduct of Michael Rutigliano. In his factum and in his submissions, counsel for Michael Rutigliano referred to some of these circumstances and observations. He sees them as negative and contributing to the appearance of a bias that could impact the upcoming hearing. In his factum and in his submissions, counsel for the Commissioner refers to this evidence and other of these statements. He sees them as positive and supportive of Michael Rutigliano, thus he suggests there is no demonstrative bias against the officer.

8It is not possible to understand the precise state of mind of an adjudicator who has made an administrative decision. Nonetheless, Supt. Elbers has expressed opinions regarding Michael Rutigliano. The informed person viewing the matter realistically and having thought it through would come to the conclusion that this pre-existing knowledge could unconsciously or consciously affect any decision Supt. Elbers would come to in this case. Put differently, factors extraneous to the present charge could impact his decision. This would be unfair. It would show at least an apprehension of bias.

9In his factum and in his submissions, counsel for the Commissioner pointed out that no objection was taken on behalf of Michael Rutigliano when Supt. Elbers was appointed as the arbitrator in the second of the two previous proceedings. The proposition is, that having failed to object, there is no reason for him to object now. We do not agree. Each time that Supt. Elbers or anyone is appointed to adjudicate a dispute involving the same person, their experience with, and knowledge of that person, will grow. Any view they may have formed will change; it will evolve.

10It is impossible to know when those experiences taken together could lead to a reasonable apprehension of bias. Is it the first, second, third or tenth adjudication? The fact that Michael Rutigliano, whatever his reason, has chosen to raise this issue now requires that it be dealt with as it stands today and not as it was or may have been the last time. This is enough to find that there is a reasonable apprehension of bias.

11Accordingly, the application is granted. Supt. Elbers is prohibited from presiding over the discipline proceedings concerning the present charges against Michael Rutigliano.

12In coming to this decision, we should make it clear that the finding of a reasonable apprehension of bias is based only on the participation of Supt. Elbers in the earlier discipline proceedings considered in these reasons and on none of the other objections raised on behalf of Michael Rutigliano.

13The matters that do not contribute to this conclusion include the professional and suggested personal relationship of Supt. Elbers and Det. Insp. George and the professional relationship with Chief Supt. Smith. It is expected that officers selected as arbitrators will have some knowledge of those who are being investigated or may be called as witnesses.

14The allegation that Supt. Elbers failed to agree to reasonable requests for adjournments, the suggestion that the Supt. belittled counsel for Michael Rutigliano, the complaints that Michael Rutigliano made against Det. Insp. George and Chief Supt. Smith in emails, that Michael Rutigliano allegedly sent to the latter, do not contribute to the findings this Court has made.

15In the circumstances of this case, none of these things reflect or contribute to an apprehension of bias.

FERRIER J.

16I have endorsed the Application Record, “This application is granted, for oral reasons delivered this day. Taking into account the mixed success in reference to this application and the stay motion, and the limited basis for the success of the application, costs to the applicant fixed at $5,000 including disbursements and HST.”

FERRIER J.

ASTON J.

LEDERER J.

Date of Reasons for Judgment: January 5, 2011

Date of Release: February 17, 2011