Court File and Parties
CITATION: Endicott v. Office of the Independent Police Review Director, 2012 ONSC 6250
DIVISIONAL COURT FILE NO.: 42/12
DATE: 20121102
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
CLARE ENDICOTT
Applicant
– and –
OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR
Respondent
Alexi N. Wood and Safina Lakhani, for the Applicant
Heather Mackay, for the Respondent
HEARD at Toronto: November 2, 2012
Reasons for Decision
KITELEY J. (orally)
[1] On August 19, 2011, events occurred involving the applicant and the O.P.P. The O.P.P. had become involved at the request of the Toronto Police Services.
[2] On September 13, 2011, the applicant made a written complaint to the Office of the Independent Police Review Director (OIPRD). In a letter dated September 23, 2011, a member of the Case Management Department, OIPRD, informed the applicant as follows:
The Office of the Independent police Review Director (OIPRD) has carefully reviewed your service complaint regarding the Toronto Police Service.
The OIPRD is aware of your concerns. However, taking all the information into consideration, the Director has not identified any breach of the Police Services Act or its Code of Conduct. Therefore, we have no jurisdiction to deal with this matter, and our file is now closed.
To find out more about OIPRD screening process, rules and the Police Services Act, please visit our website at www.oiprd.on.ca.
If you have any questions or concerns, please do not hesitate to contact me.
Yours very truly,
Angie Mahadeo
Case Management Department
[3] In October 2011, the complainant filed a second complaint. In a letter dated October 31, 2011, the same author advised as follows:
The Office of the Independent Police Review Director (OIPRD) has carefully reviewed your complaint about the alleged conduct of members of the Ontario Provincial Police.
The OIPRD is aware of your concerns. However after taking all the information into consideration, the Director has decided not to investigate this complaint. This determination was made as this complaint is a duplicate of complaint #110003288, which you previously filed and has already been dealt. Accordingly, our decision remains the same and your file is now closed.
To find out more about OIPRD screening process and the Police Services Act, please visit our website at www.oiprd.on.ca.
If you have any questions or concerns, please do not hesitate to contact our office.
Yours truly,
Angie Mahadeo
Case Management Department
[4] In a letter dated November 8, 2011, a person identified as Senior Case Manager/Registrar, wrote as follows:
Thank you for visiting our office on November 4, 2011.
I have reviewed the above-noted complaint about the alleged conduct of members of the Ontario Provincial Police which was screened out as a duplicate of complaint #110003288, a complaint you filed about the same incident involving the Toronto Police Service.
I have determined that the above-noted complaint should have been considered a new complaint. I have had the matter re-screened.
With respect to your complaint regarding the alleged conduct of members of the Ontario Provincial Police, the OIPRD is aware of your concerns; however, taking all the information into consideration, the Director has not identified any breach of the Police Service Act or its Code of Conduct. Therefore, we have no jurisdiction to deal with this matter, and our file is now closed.
To find out more about OIPRD screening process, rules and the Police Services Act, please visit our website at www.oiprd.on.ca.
If you have any questions or concerns, please do not hesitate to contact me.
Yours truly,
Susan Dunn-Lundy
Sr. Case Manager/Registrar
[5] In February 2012, an application for judicial review was initiated. There were communications between counsel for the applicant and counsel for the OIPRD, the end result of which was counsel for the OIPRD advised there was no obligation to provide a record of proceedings. Counsel for the applicant brought this motion for an order compelling the Independent Police Review Director (IPRD) to file a record of proceedings. Counsel for the OIPRD has undertaken to respond to the notice of application but opposes the motion.
[6] The issue is whether the IPRD has exercised a statutory power of decision, which in s.1 of the Judicial Review Procedures Act is defined as follows:
- In this Act.
“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,
and includes the powers of an inferior court.
[7] Section 10 of the Judicial Review Procedures Act provides that when a notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application, the record of the proceedings in which the decision was made.
[8] The relevant portions of ss. 58, 59, 60 and 61 of the Police Services Act are as follows:
58(1) Any member of the public may make a complaint under this Part to the Independent Police Review Director about,
(a) the policies of or services provided by a police force; or
(b) the conduct of a police officer.
59(1) The Independent Police Review Director shall review every complaint made to him or her by a member of the public under this Part, and shall determine whether the complaint is about the policies of or services provided by a police force or about the conduct of a police officer.
(2) Subject to section 60, the Independent Police Review Director shall ensure that every complaint reviewed under subsection (1) is referred or retained and dealt with in accordance with section 61.
60(1) The Independent Police Review Director may, in accordance with this section, decide not to deal with a complaint made to him or her by a member of the public under this Part.
(2) The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if the complaint is made more than six months after the facts on which it is based occurred.
(4) The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if, in his or her opinion, one of the following applies:
The complaint is frivolous or vexatious or made in bad faith.
The complaint could be more appropriately dealt with, in whole or in part, under another Act or other law.
Having regard to all the circumstances, dealing with the complaint is not in the public interest.
(5) The Independent Police Review Director may decide not to deal with a complaint made by a member of the public about a policy of or service provided by a police force if the policy or service did not have a direct effect on the complainant.
(6) The Independent Police Review Director may decide not to deal with a complaint made by a member of the public about the conduct of a police officer if the complainant is not one of the following:
A person at whom the conduct was directed.
A person who saw or heard the conduct or its effects as a result of being physically present at the time and place that the conduct or its effects occurred.
A person who,
i. was in a personal relationship with a person described in paragraph 1 at the time that the conduct occurred and,
ii. suffered loss, damage, distress, danger or inconvenience as a result of the conduct.
- A person who has knowledge of the conduct, or has in his or her possession or under his or her control anything relating to the conduct, if, in the Independent Police Review Director’s opinion, the knowledge or thing constitutes compelling evidence that the conduct complained of is misconduct as defined in section 80 or unsatisfactory work performance and the evidence would likely be admissible in a court proceeding.
(7) If the Independent Police Review Director decides not to deal with a complaint, other than a complaint described in subsection (9), in accordance with this section, he or she shall notify the complainant and the chief of police of the police force to which the matter relates in writing of the decision, with reasons, and in the case of the chief of police, shall also give notice of the substance of the complaint.
61(1) This section applies to every complaint made to the Independent Police Review Director by a member of the public under this Part, unless the Independent Police Review Director has decided not to deal with the complaint in accordance with section 60.
[9] Counsel also referred to Rule 5 of the Rules of Procedure of the OIPRD, “Screening Complaints”, which is as follows:
5.1 Upon receipt of a complaint, the OIPRD will determine whether the complaint relates to the conduct of a police officer or to the policies or services provided by a police force.
5.2 Where a complaint has been filed with the OIPRD either directly or through a police service, and where further information is required to screen or assign the complaint for investigation, the OIPRD will contact the affected police service through the police liaison officer. The police liaison officer may be required to supply the OIPRD with information to assist in screening or assigning the complaint for investigation:
The OIPRD may request that such information be provided by the police liaison officer within 14 days of the request being made by the OIPRD. This request for information constitutes part of the screening function exercised by the OIPRD under s. 60 and does not constitute notice of a complaint within the meaning of s. 62 of the Act.
5.3 In all cases where the OPIRD is determining whether or not to deal with a complaint, the OIPRD will have regard to whether it is in the public interest to deal with the complaint. While determining what is and is not in the public interest will always involve a balancing of interests and a broad range of considerations, some of the factors which the OIPRD may consider in determining whether it is in the public interest to deal with a complaint will include:
(i) The effect of a decision to deal or not to deal with a complaint on public confidence in the accountability and integrity of the complaints system;
(ii) The number of complainants involved;
(iii) The seriousness of the complaint, including the seriousness of the harm alleged;
(iv) Whether the complaint is repetitious;
(v) Whether there are issues of systemic importance or broader interest at stake;
(vi) The likelihood of interfering with or compromising other proceedings;
(vii) Whether another venue, body or law can more appropriately address the substance of the complaint.
[10] Counsel differ whether the scheme of the Act means that complaints are “screened in unless screened out” or “screened out unless screened in”. The difference has an impact on the extent of the discretion that the IPRD has and whether the response by the IPRD to a complaint constitutes a statutory power of decision.
[11] I agree with counsel for the applicant that s. 59 and s. 60 create a statutory power of decision for these reasons.
[12] In s. 58, any member of the public may make a complaint about the policies of or services provided by a police force or the conduct of a police officer. I consider that to create a statutory right to make such a complaint. In response, there is a statutory duty on the IPRD to do two things. Firstly, the IPRD must review every complaint and secondly, the IPRD must determine whether it is about the policies of or services provided by a police force or about the conduct of a police officer.
[13] Having been satisfied that the complaint is with respect to policies, services or conduct, there is a statutory duty on the IPRD to ensure that subject to s. 60, every complaint reviewed is referred or retained and dealt with in accordance with s. 61.
[14] Section 60(1), (2), (4), (5) and (6) all establish the reasons why the IPRD may “decide not to deal with the complaint”. Rule 5 elaborates on the basis upon which the IPRD may apply the public interest factor in s. 60(4).
[15] If the IPRD decides not to deal with the complaint, then the IPRD has a statutory duty to notify the complainant and the Chief of Police of the police force to which the matter relates in writing of the decision with reasons.
[16] On a literal reading of the statute including the headings, I am satisfied that the IPRD’s decision is to screen complaints out, not screen complaints in. The scheme of the Act is and the intention of the legislature in amending the PSA was to create a fair, effective and transparent method of responding to complaints. While recognizing that there are reasons to decide not to deal with a complaint, the essence of the legislation is that the complaint is screened in unless the IPRD decides that one of the finite criteria in s. 60(4), (5) and (6) apply and the IPRD should exercise his or her discretion not to deal with the complaint.
[17] Counsel for the IPRD takes the position that the scheme of the legislation creates a broad discretion to screen in or screen out, such that it cannot be found to be a statutory power of decision. I disagree. The member of the public has a right to complain. The member of the public does not have a right to insist upon an investigation nor a right to compel the IPRD to decide that the complaint will be dealt with in a particular manner. The member of the public has a right to expect that the complaint will be dealt with in accordance with ss. 59 and 60. The power or duty conferred on the IPRD under s. 59 and s. 60 of the PSA has the effect of deciding what will happen to the complaint. That is a statutory power of decision.
[18] In the course of submissions, counsel referred to other cases to which I will make brief reference in the written reasons, namely, Dolan v. Ontario (Civilian Commission on Police Services), 2011 ONSC 1376, [2011] O. J. No. 1028 (Div. Ct.); Jacko v. Ontario, [2008] O.J. No. 5376 (Div. Ct.); Ross v. Toronto (City), 2011 ONSC 7591 (Div. Ct.); PC Ontario Fund v. Essensa 2011 ONSC 2641, [2011] O.J. No. 2366 (Div. Ct.); Barrington v. Institute of Chartered Accountants [2004] O.J. No. 2611 (Div. Ct. single judge); affirmed 2004 34623 (ON SCDC), [2004] O.J. No. 4351 (Div. Ct. panel); Batacharya v. College of Midwives of Ontario 2012 ONSC 1072, [2012] O.J. No. 697 (Div. Ct.) and Re Medhurst and Medhurst et al. [1984] O.J. No. 3140 (H.C.J.). All are distinguishable on the basis of a different statutory scheme or the person seeking a remedy was not affected by the decision. I need not deal with them in detail.
[19] Accordingly, the motion is granted and an order will go requiring the IPRD to file the record of proceedings.
[20] As mentioned, the Notice of Application was issued using initials for the applicant. Order to go amending the title of proceedings to replace “C.E.” as the applicant with “Clare Endicott”.
KITELEY J.
Date of Reasons for Judgment: November 2, 2012
Date of Release: November 15, 2012
CITATION: Endicott v. Office of the Independent Police Review Director, 2012 ONSC 6250
DIVISIONAL COURT FILE NO.: 42/12
DATE: 20121102
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY J.
BETWEEN:
CLARE ENDICOTT
Applicant
– and –
OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR
Respondent
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Reasons for Judgment: November 2, 2012
Date of Release: November 15, 2012