Martinez v. Toronto Police Services Board, 2012 ONSC 2893
CITATION: Martinez v. Toronto Police Services Board, 2012 ONSC 2893
DIVISIONAL COURT FILE NO.: 104/12
DATE: 20120515
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SWINTON AND HERMAN JJ.
BETWEEN:
MICHAEL MARTINEZ, JASON CRAWFORD, RYAN SIMPSON, MICHAEL KIPROFF, ALAN LI, DONALD STRATTON, BLAIR BEGBIE and VINCENT WONG
Applicants
– and –
TORONTO POLICE SERVICES BOARD, and WILLIAM BLAIR, IN HIS CAPACITY AS CHIEF OF THE TORONTO POLICE SERVICE
Respondents
-and –
THE ATTORNEY FOR ONTARIO
Intervener
Lawrence Gridin, for the Applicants
Owen M. Rees and Fredrick Schumann¸ for the Respondent, Chief of Police, Toronto Police Service
Ansuya Pachai and Cara Gibbons, for the Respondent, Toronto Police Services Board
Sara Blake and Heather Mackay, for the Attorney General for Ontario
HEARD at Toronto: May 15, 2012
SWINTON J. (ORALLY)
[1] The 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.
[2] Each 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.
[3] Subsection 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.
[4] The 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.
[5] The 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.
[6] Judicial 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).
[7] The 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.
[8] The 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).
[9] Moreover, 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).
[10] Therefore, this application for judicial review is dismissed on the grounds of prematurity.
ASTON J.
COSTS
[11] On 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.”
[12] On 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.”
SWINTON J.
ASTON J.
HERMAN J.
Date of Reasons for Judgment: May 15, 2012
Date of Release: May 22, 2012
CITATION: Martinez v. Toronto Police Services Board, 2012 ONSC 2893
DIVISIONAL COURT FILE NO.: 104/12
DATE: 20120515
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SWINTON AND HERMAN JJ.
BETWEEN:
MICHAEL MARTINEZ, JASON CRAWFORD, RYAN SIMPSON, MICHAEL KIPROFF, ALAN LI, DONALD STRATTON, BLAIR BEGBIE and VINCENT WONG
Applicants
– and –
TORONTO POLICE SERVICES BOARD, and WILLIAM BLAIR, IN HIS CAPACITY AS CHIEF OF THE TORONTO POLICE SERVICE
Respondents
-and –
THE ATTORNEY FOR ONTARIO
Intervener
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: May 15, 2012
Date of Release: May 22, 2012