Martinez v. Toronto Police Services Board, 2012 ONSC 2893

SWINTON J. (ORALLY)

1The applicants, eight police officers, seek judicial review of five decisions of the Toronto Police Services Board (“the Board”) made pursuant to s. 83(17) of the Police Services Act, R.S.O. 1990, c. P.15 (“the Act”). In each case, the Board held that it was reasonable, in the circumstances, for the Chief of the Toronto Police Services (“the Chief”) to have delayed serving a Notice of Hearing more than six months after the day on which the Office of the Independent Police Review Director (“OIPRD”) decided to retain a public complaint for investigation.

2Each of the applicant officers was the subject of a public complaint arising out of events during the G20 summit in Toronto in June 2010. The OIPRD was established in October 2009, with 9 full-time investigators. It received 361 complaints arising from the G20 summit, of which 288 were referred for investigation. The OIPRD investigators conducted 212 of those investigations, including those related to the applicants. At the same time, the OIPRD also undertook a systemic review of policing during the G20 summit. It found that the complaint against each of the applicants was substantiated.

3Subsection 83(17) of the Act states:

If six months have elapsed since the day described in subsection (18), no notice of hearing shall be served unless the board, in the case of a municipal police officer, or the Commissioner, in the case of a member of the Ontario Provincial Police, is of the opinion that it was reasonable, under the circumstances, to delay serving the notice of hearing.

4The Board held that the delay in serving each of the Notices of Hearing respecting the applicants was reasonable because of the exceptional situation arising from the G20 summit, even though delay attributable to lack of staff and resources would not normally lead to a finding of reasonable delay.

5The Attorney General for Ontario and the Chief ask that the application be dismissed on the grounds of prematurity. The Chief also argues that the applicants have an adequate alternative remedy to deal with the issue of prejudice caused by delay, as this issue may be raised in an abuse of process motion before the hearing officer in the disciplinary hearing and determined on a proper evidentiary record.

6Judicial review is a discretionary remedy. Normally, courts are reluctant to review interlocutory or interim steps in an administrative proceeding, preferring to wait until the proceeding has run its course in order to avoid fragmentation of the administrative process and delay, as well as to respect the legislative decision to confer decision-making authority on the administrative tribunal. Therefore, it is well-established that judicial review will be refused where the application is premature, unless there are exceptional circumstances (see Ackerman v. Ontario Provincial Police, 2010 ONSC 910 (Div. Ct.) at paras. 11 and 19).

7The applicants argue that there are exceptional circumstances here that justify a determination of the application on the merits. We disagree. The prejudice alleged by the applicants does not in itself constitute exceptional prejudice. The applicants are treated no differently than any other member of the Toronto Police Service who faces disciplinary proceedings.

8The applicants have raised no allegation of a denial of procedural fairness or bias that would affect the fairness of the ongoing disciplinary proceedings (see Landry v. Law Society of Upper Canada (2011), 2011 99902 (ON SCDC), 106 O.R. (3d) 728 (Div. Ct.) at para. 32). There is no evidence before this Court to support an allegation of prejudice such as to result in an unfair hearing, nor is there specific evidence in the record of actual prejudice to individual applicants that would offend the public’s sense of decency and fairness (see Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at para. 115).

9Moreover, we are satisfied that there is an adequate alternative remedy available to the applicants through an abuse of process motion to the hearing officer, where they will have the opportunity to present evidence showing that the delay has caused such prejudice as to result in an abuse of process (see the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, s. 23(1) and Blencoe at para. 115).

10Therefore, this application for judicial review is dismissed on the grounds of prematurity.

ASTON J.

COSTS

11On behalf of the panel, I have endorsed the Motion Record, “The motion is granted. The application for judicial review is quashed. For oral reasons of the Court delivered by Swinton J., no costs requested; none ordered.”

12On the Application Record, I have endorsed, “The application is quashed and dismissed on grounds of prematurity. See the endorsement on the Motion Record and the oral reasons of Swinton J. on behalf of the Court.”