CITATION: Stewart v. Office of the Independent Police Review Director, 2013 ONSC 7907

DIVISIONAL COURT FILE NO.: 525/12

DATE: 20131220

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT – TORONTO REGION

BETWEEN:

LUKE STEWART and KRISTA SCHNEIDER

Applicants (Responding Parties)

– and –

OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR, PEEL REGIONAL POLICE SERVICE (CHIEF OF POLICE), YORK REGIONAL POLICE SERVICE (CHIEF OF POLICE), TORONTO POLICE SERVICE (CHIEF OF POLICE)

Respondents

C. Ruby/G. Chan, for the Applicants (Responding Parties)

H. Mackay, for the Respondent Office of the Independent Police Review Director (Moving Party)

HEARD: December 12, 2013

REASONS FOR DECISION

DiTOMASO J.

THE MOTION

[1] The Respondent Office of the Independent Police Review Director (“Director”) brings this motion to quash the Application for Judicial Review of the Applicants Luke Stewart and Krista Schneider pursuant to s.23(1) of the Courts of Justice Act[^1] on the grounds that the Judicial Review Application is now moot.

OVERVIEW

[2] The Applicants made complaints to the Office of the Independent Police Review Director (“OIPRD”) arising out of their involvement with police during the G20 summit in Toronto in June 2010. The Director screened their complaints “in” and retained them for investigation by the OIPRD. Due to the volume of the complaints received by the OIPRD regarding the G20, there were delays in completing the investigations.

[3] At the conclusion of his investigations, the Director determined that there were reasonable grounds to believe that the police officers about whom the Applicants had complained had committed misconduct pursuant to the Police Services Act (“PSA”). The Director then referred these matters to the Chiefs of the Police Services to which the officers belonged for disciplinary hearings. Such hearings are commenced by serving a Notice of Hearing (“Notice”) on the subject officers.

[4] Where more than six months have passed from the date the Director retains a complaint for investigation to the date on which the Notice is to be served, the Director must ask the Chief of Police to request an extension of time to serve a Notice from the relevant Police Services Board. The Board must then determine if it is “reasonable under the circumstances” to delay serving the Notice. In preparation for the submissions on the extension applications in this case, the Director reviewed the investigative files related to the Applicants’ complaints, and pursuant to his interpreted authority in s.72 of the PSA. He directed the Chiefs not to seek extensions of time and recommended that the matters be closed. The Chiefs complied with those directions.

[5] The Applicants brought an Application for Judicial Review naming the Director and the Chiefs of Police as Respondents. The Application challenges the Director’s direction to the Chiefs not to seek extensions of time and seeks orders in the nature of certiorari quashing the Director’s directions to the Chiefs and the decisions of the Chiefs not to proceed with hearings into the alleged misconduct irrespective of the Director’s directions.

[6] While the Application was pending, the Divisional Court released its decision in Endicott v. The Independent Police Review Director.[^2] The Court found, inter alia, that a person who makes a complaint to the Director has a right to have that complaint investigated and a right to have that complaint proceed to a hearing. Although the Director has appealed that decision, the Director did reconsider his directions with respect to the applicants’ complaints based on the Court’s findings. While maintaining that he had the authority pursuant to section 72 of the PSA to direct the Chiefs as he had, the Director reversed his earlier directions and directed that the Chiefs seek extensions of time from the relevant police services boards. The Chiefs did so. By my order dated December 10, 2013, the Applicants’ Application for Judicial Review was dismissed as against the Chiefs without costs but not as against the Director.

[7] The Director’s position is that the Application for Judicial Review had become moot. However, the Applicants indicated they intended to pursue Judicial Review against the Director.

POSITIONS OF THE PARTIES

Position of the Director

[8] It is the Director’s position that the Application is moot because there is no longer any live controversy or dispute between the parties as the Applicants have already received the relief they were seeking on their Application and therefore a decision on the Application would have no practical effect on their rights.

[9] Further, the Director submits that the Court should decline to exercise its discretion to hear this moot Application because:

(i) courts will generally decline to hear matters that are moot and that have no collateral consequences for the parties such as the case at bar;

(ii) the Application offends the principle of judicial economy because: any decision in the application would have no practical effect as the dispute between the parties has been resolved; the legal issues in the application are not evasive of review and could easily be dealt with in a future case; there will be of little precedential value to any decision on the application because the law regarding the Director’s discretion and the rights of complainants is currently in flux; the Director’s decision is specific to the Applicants’ situation; and

(iii) the issues on the Application are not of broad public importance as the relief sought relates only to the Applicants and their specific situation.

[10] Consequently, it is the Director’s position that the Application should be quashed.

Position of the Applicants

[11] While the Director has reversed the decision that the Applicants seek to review, it is submitted that this Court should exercise its discretion to decide the outstanding issue of whether the Director had the power to direct the Chiefs of Police as he did; and, if not, grant the Applicants a Declaration that the Director exceeded his powers. The Applicants assert that this is an important issue of government accountability on which guidance is sorely needed. Guidance is sought in this case because it may be a while before another complainant of police misconduct would be able to gather the resources necessary to bring an Application for Judicial Review.

[12] The Applicants submit that it is not plain and obvious that the Court should not exercise its discretion to hear the Application. As a result, they assert that this motion to quash should be dismissed.

ISSUES

[13] The issues to be determined on this motion are:

(1) Whether the application for judicial review is moot; and

(2) Whether the Court should exercise its discretion to hear a moot matter.

ANALYSIS

Authority of the Court on the Motion

[14] Section 21(3) of the Courts of Justice Act provides that a motion in the Divisional Court shall be heard and determined by one judge, unless otherwise provided by the rules of court. There is no rule of court directing that motions to quash an Application for Judicial Review be heard by a full panel of the Court.[^3]

[15] In Reid v. Ontario (Minister of Municipal Affairs and Housing), this Court quashed an application for judicial review for mootness on a motion before a single judge because the decision maker at issue voluntarily set aside the impugned decision:

The only remedy sought in the Reid’s application for judicial review is to quash the June 17, 1996 decision. This has been done voluntarily be Lakeshore. Assuming the applicant were 100% successful before a full panel of the Divisional court, the most that could be achieved has already been voluntarily done by the Board of Directors of the respondent, Lakeshore, in my view the matter is moot and this state of affairs calls for an order quashing the application for judicial review.[^4]

[16] The Director submits that the decision in Reid applies directly to our case. In their Amended Application for Judicial Review the Applicants seek orders in the nature of certiorari quashing the decisions of the Director directing the Chiefs of Police not to proceed further with the Applicants’ complaints and orders quashing the decision of the Chiefs not to proceed with hearings into the Applicants’ complaints notwithstanding the directions from the Director. The Director submits that the Applicants have already obtained all of this relief and could not obtain any further relief if the Application were permitted to proceed.

No. 1 – Is the Application Moot?

[17] Judicial review is a discretionary remedy. One of the grounds on which a court may decline an Application for Judicial Review is mootness.[^5]

[18] A case will therefore be moot if there is no live controversy between the parties. There is no live controversy where the question before the Court has ceased to exist or the substratum of the litigation has disappeared. Further, there is no live controversy where a decision on the merits would have no practical effect on the parties’ rights or where the question the Court is now being asked to resolve has been overtaken by post-decision events or a subsequent decision of a board (as in this case). It is not enough that a party has a continuing interest in the outcome of the litigation.[^6]

[19] A matter will also found to be moot where the Court would be forced to decide an abstract proposition of law in the absence of a real controversy. Courts will generally decline to hear such cases because courts exist to resolve real disputes between parties and not to provide opinions in response to hypothetical or academic problems.[^7]

[20] When the issue of mootness is raised, the Court will perform a two-step analysis:

First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term “moot” applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the “live controversy” test. A court may nonetheless elect to address a moot issue if the circumstances warrant.[^8]

[21] Regarding the first step of the analysis when the issue of mootness is raised, I find that the required tangible and concrete dispute has disappeared and the issues have become academic. The Application for Judicial Review is moot because there is no live dispute remaining between the parties. As a result of the Director reconsidering his original decision, the Applicants have obtained all of the remedies they seek on their Application. A decision on the merits of the Application would have no practical effect on the rights of the Applicants at all.[^9]

[22] In pursuing the Application for Judicial Review despite having already received the relief they were seeking, the Applicants are essentially asking the Court to issue a Declaration that the Applicants’ interpretation of s.72 of the PSA is the correct one even though they did not seek this relief on their original Application. I find that a decision on the merits of the Judicial Review Application would have no practical effect on the rights of the Applicants. The interpretation of s.72 of the PSA is best dealt with in any future matter where there is a live controversy between the parties. There is no such live controversy remaining in the case at bar.

[23] The Applicants submit that the test on this motion to quash is whether it is plain and obvious that the Application for Judicial Review would fail.

[24] I am not persuaded that the plain and obvious test applies on a motion to quash an Application for Judicial Review. I have not been provided with any authorities where it has been held that on a motion to quash an Application for Judicial Review, the plain and obvious test applies. The Applicants submit that in our case it is not plain and obvious that the Judicial Review Application would fail if placed before a full panel of the Divisional Court for hearing. They argue there ought to be a hearing by the full panel of the Divisional Court and once the case has been heard on its merits, the Panel should then decide the issue of mootness.

[25] With respect, I do not agree with this approach. This court has the jurisdiction to determine whether or not the Application for Judicial Review ought to be dismissed for mootness. This court is fully equipped to deal with the mootness issue and no further or better materials or argument would make any difference to a full panel of the Divisional Court.

[26] Accordingly, the answer to the first question is the Application for Judicial Review is moot.

No. 2 – Should the Court permit the moot application to proceed?

[27] The answer to this question is no.

[28] The cases are well-settled that the Court retains the discretion to depart from its general rule against hearing matters that are moot. The onus rests on the party seeking to have the moot matter heard to demonstrate why the Court should depart from its usual practice of refusing to hear moot matters.[^10]

[29] For the following reasons, I find the Applicants have not discharged their onus.

[30] In determining whether the Court will hear a matter that is moot, the Court will consider three factors:

(a) The presence of an adversarial context;

(b) the concern for judicial economy; and

(c) the need for Court to be sensitive to its role as the adjudicative branch in our political framework.[^11]

[31] I have considered each of these factors and conclude that the Applicants have not satisfied any of them so as to persuade this Court to hear a matter that is moot.

[32] I will deal with each of these factors.

(a) Adversarial Context

[33] The requirement of an adversarial context may be satisfied if, despite the cessation of the controversy, there are collateral consequences of the outcome of the litigation on a litigant. There are no such collateral consequences to the Applicants in this case. While the parties disagree about the interpretation of s.72, this does not make the litigants opposed in interest.

(b) Judicial Economy

[34] The second factor the Court will consider in determining whether it should exercise its discretion to hear a moot matter is “judicial economy”. This factor recognizes the need to ration scarce judicial resources among competing claimants. The Court will only exercise its discretion to hear moot cases if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it.[^12]

[35] The court will determine if special circumstances exist by looking at: i) the practical effect on the parties; ii) whether the matter is likely to recur and is evasive of review; and iii) the importance of the issues.[^13]

(i) The Practical Effect on the Parties

[36] I find the Applicants’ Application for Judicial Review will have no practical effect on the rights of any of the parties or any collateral consequences for the parties because the Applicants have already received the relief they are seeking.

(ii) Whether the Matter is like to recur and is evasive of Judicial Review

[37] The second factor the Court will consider when determining whether judicial resources should be expended on a moot matter is whether the matter is likely to recur and be evasive to review by the Court.[^14]

[38] While the specific issue in this case, the parameters of the Director’s discretion pursuant to section 72 of the PSA, may recur in another case, it is not an issue evasive of review. It is completely open to any other litigant who disagrees with the Director’s interpretation of section 72 to bring an Application for Judicial Review. This is not a situation in which the only means by which the Court will be able to determine the issue will to be hear the Applicants’ moot Application.

[39] It is submitted that to determine the issue of the Director’s discretion pursuant to section 72 on this Application will actually offend the principle of judicial economy. As noted above, the basis for the Director’s reconsideration of his original decision was the Divisional Court’s decision in Endicott v. Independent Police Review Director, which found, inter alia, that a complainant has a right to have his or her complaint proceed to a hearing. Leave to appeal that decision has now been granted by the Court of Appeal. That Court will therefore determine the scope of the “rights” of individuals who make complaints to the Director. This in turn will inform the Director’s interpretation of all areas of his discretion, including section 72. As a result, the principle of judicial economy is best served by allowing the issue to be determined in a future case when the law on the Director’s discretion and the rights of complainants is settled and there is a real dispute between the parties in the future case.

[40] Further, any decision made with respect to this issue now may end up having little precedential value if the law with respect to the Director’s discretionary powers and the rights of complainants changes as a result of the Court of Appeal’s decision in Endicott. An abstract pronouncement of the Director’s powers pursuant to section 72 in the case at bar will not necessarily promote judicial economy as the Court could be asked to determine the question again when the law is settled. Therefore, hearing the Applicant’s Application will not necessarily obviate the need for future litigation and it is therefore not in the public interest to determine this question at this time.

[41] For these reasons, I am persuaded that the matter may likely recur and is not evasive of judicial review.

(iii) Importance of the Issues

[42] The final issue the Court will consider when examining whether judicial resources should be used to hear a moot appeal is the importance of the issues. The mere presence of an issue of importance is not determinative of the matter and is insufficient to justify the exercise of discretion to hear a moot matter; there must be the additional ingredient of social cost in leaving the matter undecided. For example, a litigant continues to face some injustice like discrimination despite the resolution of the underlying litigation.[^15]

[43] Mr. Ruby argued that the issue on the Application for Judicial Review was important raising an issue of statutory interpretation of broad social importance to the public large. The issue involves the rights of private individuals upon the interpretation of section 72 of the PSA by a statutory body. He urges that this is far removed from private interest litigation.

[44] With respect I do not agree. While I find the Applicants do raise an important issue of statutory interpretation, I am not persuaded that the issue is one of broad social importance to the public at large. I conclude that the Applicants are seeking remedies applicable only to themselves and those remedies have already been granted. The Applicants are not purporting to act on behalf of any other interest beyond their own as evidenced by the fact that the record is limited to only the specifics of their dispute with the Director. I do not find that the Application is “important” in the sense that this Court should exercise its discretion to hear a matter that is moot.

(c) Awareness of Law Making Function

[45] The final factor the Court will consider when determining whether to exercise its discretion to hear a moot matter is the Court’s traditional role as the adjudicative branch of our political system. In Borowski, the Supreme Court cautioned that Courts must be sensitive to their role as the adjudicative branch and that pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch and could lead to unnecessary precedents.[^16]

[46] I find that the Applicants’ moot Application for Judicial Review should not proceed because the state of the law with respect to the Director’s discretion and the rights of the complainants is currently in flux. It is before the Court of Appeal. I find there is no compelling public interest reason for the Court to hear this Application at this time. Rather, the issues should be determined in a genuine adversarial context which is entirely lacking here.

CONCLUSION

[47] For these reasons, I find the Application for Judicial Review is moot. This Court will not exercise its discretion to hear a moot matter. Accordingly, the Application for Judicial review is quashed.

COSTS

[48] The parties made their submissions as to costs. The Director is the successful party and costs follow the event. I do not agree that the Director is entitled to no costs as this case falls within public interest litigation.

[49] Rather, the Director has asked for nominal costs in the amount of $1,000 against the Applicants jointly and severally payable by them. In all the circumstances, I find the sum of $500 to be fair, reasonable and proportional. This amount is more reflective of a nominal amount particularly where the Director’s change of decision gave rise to the Application for Judicial Review at first instance.

[50] Accordingly, this Court orders that the Applicants Luke Stewart and Krista Schneider jointly and severally pay to the Office of the Independent Police Review Director the sum of $500.

DiTOMASO J.

Released: December 20, 2013

[^1]: The Courts of Justice Act, R.S.O. 1990 c.C.43

[^2]: Leave to appeal the Divisional Court’s decision in Endicott was granted by the Court of Appeal on September 25, 2013. Therefore, the law with respect to the Director’s discretionary powers and the rights of complaints is in flux.

[^3]: Courts of Justice Act, R.S.O. 1990, c.C.43, s.21(3). Donald J.M. Brown and Hon. John M. Evans, Judicial Review of Administrative Action in Canada, loose-leaf, (Toronto: Canvasback Publishing, 2013) at paras. 6:4100, 3:3200

[^4]: Reid v. Ontario (Minister of Municipal Affairs and Housing) [1996] O.J. No. 3905 (D.C.), at para. 2-3; See also Chauvin v. Canada 2009 FC 1202, [2009] F.C.J. No. 1496 (F.C.), at paras. 38-43

[^5]: Borowski v. Canada (Attorney General), (1989) 1989 123 (SCC), 1 SCR 342 at paras. 15-16

[^6]: Borowski, supra, at paras. 9, 18-20, 24; Cote v. Ontario (Human Rights Commission), [2009] O.J. No. 1833 at para. 17; Tamil Co-operative Homes Inc. v. Arulappah, 2000 5726 (ON CA), [2000] O.J. No. 3372 at para 14 (C.A.); Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265, [2008] O.J. No. 1353 at paras. 28-29 (C.A.); Greenspace Alliance of Canada’s Capital v. Ottawa (City), [2008] O.J. No. 3942 at para. 9 (OCJ DivCrt)

[^7]: Tamil, supra, at para. 13

[^8]: Borowski, supra, at paras. 15-16

[^9]: Tamil Co-operatives Homes, supra, at para. 16

[^10]: Tamil Co-operative Homes, supra, at para. 17; Maystar, supra, at paras. 26 & 32; Greenspace, supra, at para. 10; Borowski, supra, at para. 30

[^11]: Maystar, supra, at para. 33; Borowski, supra, at paras. 26-42; Mental Health Centre Penetanguishene v. Ontario, 2010 ONCA 197, [2010] O.J. No. 1044 at para 39 (C.A.)

[^12]: Borowski, supra, at para 34

[^13]: Borowski, supra, at para. 35

[^14]: Tamil Co-Operatives Homes, supra, at para. 21

[^15]: Borowski, supra, at para. 39; Maystar, supra, at paras. 35-37

[^16]: Borowski, supra, at para. 41; Essensa, supra, at para. 18