CITATION: Mauro v. Thunder Bay Police 2014 ONSC 1799

DIVISIONAL COURT FILE NO.: 281/13

DATE: 20140320

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SERGEANT JAMES MAURO v. THUNDER BAY POLICE SERVICE

BEFORE: NORDHEIMER J.

COUNSEL: D. Butt, for the applicant

A. J. Sinclair, for the respondent

HEARD: March 20, 2014

E N D O R S E M E N T

[1] The applicant brings this motion for an order setting aside the order of the Registrar dismissing the applicant’s appeal.

[2] The applicant is a police officer employed by the respondent, holding the rank of sergeant. He was convicted of a disciplinary offence, namely discreditable conduct, on March 16, 2012 relating to matters dating back to 2009. He was demoted to the rank of first class constable for a period of twelve months as the penalty for the disciplinary offence. The delay in time between the underlying conduct and the actual discipline hearing was almost entirely due to requests for adjournments made by the applicant who was on long term disability at the time.

[3] The applicant appealed the disciplinary decision to the Ontario Civilian Police Commission. As part of that appeal, the applicant brought a motion to adduce new evidence. That motion was denied on January 24, 2013. On June 20, 2013, the appeal itself was denied.

[4] An appeal to the Divisional Court was then brought on June 25, 2013. No steps have been taken since then to perfect the appeal.

[5] Counsel for the respondent wrote to counsel for the applicant on two occasions, August 20, 2013 and September 17, 2013, inquiring when the applicant intended to perfect his appeal. The second of the two letters warned that the respondent would bring a motion to dismiss the appeal for delay if it was not perfected. No response was received to either of these letters. Counsel for the applicant fairly accepts full responsibility for the failure to respond to these letters citing workload issues as the reason.

[6] The respondent then brought a motion to dismiss the appeal for delay. After hearing submissions, on October 8, 2013, the Registrar dismissed the appeal for delay with costs fixed at $750.00.

[7] On March 4, 2014, the applicant brought this motion to set aside the order of the Registrar.

[8] The principles applicable to a motion to set aside a Registrar’s order dismissing an appeal for delay are helpfully summarized by Master MacLeod in K. Laboratories v. Highland Export Inc., 2010 ONSC 4032, [2010] O.J. No. 3116 (S.C.J.) at para. 4. Included within those principles are four factors that the court should consider in deciding whether to set aside the Registrar’s order: Marche D'Alimentation Denis Theriault Ltée v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 O.R. (3d) 660 (C.A.). Those four factors, as adjusted to reflect the fact that the dismissal here arose from a motion to dismiss as opposed to an administrative notice of dismissal, are:

(i) any explanation for the delay that led to the order in the first place;

(ii) that there was inadvertence in not perfecting the appeal within the stipulated time period;

(iii) that the moving party moved promptly moving to set aside the order; and,

(iv) prejudice or lack of prejudice to the defendant.

[9] The only explanation for the delay in perfecting the appeal is that the applicant was seeking to obtain a transcript from a civil proceeding in which, it is asserted, witnesses gave evidence relating to “the matters that form the substance of the original discipline hearings” against the applicant.

[10] The problem with that explanation is that there is nothing in the record before me that establishes how that transcript could be relevant to this appeal. All that the applicant offers is the bald statement that witnesses gave evidence about the same matters that were before the discipline hearing without any explanation as to how that evidence would impact on the validity of the decision reached at the discipline proceeding. I would note that there would have to be a very serious contradiction between the evidence at this later civil proceeding and the evidence at the disciplinary hearing in order to have the former affect the correctness of the latter.

[11] It is also clear that it was not inadvertence that lead to the appeal not being perfected. To the contrary, the applicant was on notice of the consequences of the failure to perfect and yet the applicant did not take steps either to perfect the appeal or to seek an extension of time for that purpose prior to the Registrar’s order to dismiss.

[12] Further, the applicant did not move promptly to set aside the dismissal order. Rather, it was just shy of five months before this motion was brought for that purpose. While counsel for the applicant says that he was discussing the issue with counsel for the respondent to determine if the motion would be necessary, that is not an acceptable explanation for the delay. Given the nature of the order made, a motion to set aside ought to have been brought immediately. The mere fact that the motion is brought, of course, does not preclude a resolution being agreed upon to avoid the motion having to be heard.

[13] On the issue of prejudice, I accept that there is prejudice to the applicant if the appeal is not reinstated although I note that the nature of the prejudice is entirely monetary in the sense that the applicant has had a reduction in salary for a twelve month period. At the same time, there is prejudice to the defendant in the sense that the continuation of this proceeding undermines the desired finality regarding labour issues within the workplace: Dayco (Canada) Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), 1993 144 (SCC), [1993] 2 S.C.R. 230 at para. 93. It is also inconsistent with the objective of having a speedy disciplinary process with respect to allegations of misconduct involving police officers: Ramsay v. Toronto Commissioners of Police (1988), 1988 4706 (ON SC), 66 O.R. (2d) 99 (Div. Ct.) at para. 41.

[14] Finally, while it is not one of the four factors mentioned, it seems to me that the apparent merits of the appeal are also relevant to the determination whether the Registrar’s order should be set aside. I reach that conclusion because an order setting aside the Registrar’s order is equivalent to an order extending the time for the appeal. In considering whether such an extension of time should be granted, the merits of the appeal are a relevant consideration: Mignacca v. Merck Frosst Canada Ltd. (2009), 2009 ONCA 393, 96 O.R. (3d) 164 (C.A.). On the record before me, the merits of this appeal (which, after all, is a second appeal) are highly questionable. In particular, I have difficulty with the applicant’s argument, that the request by the hearing officer for medical information regarding a request by the applicant for a further adjournment of the disciplinary hearing, gives rise to a fundamental conflict and contradiction with the applicant’s long term disability status.

[15] In the end result, the applicant has not satisfied any, much less all, of the four factors to be considered in determining whether the Registrar’s order should be set aside. I would note, additionally, that the issues that gave rise to the original disciplinary proceedings arose five years ago and that also argues strongly in favour of finality being brought to bear with respect to this matter.

[16] The application is dismissed. The respondent is entitled to its costs of the motion that I fix at $1,450.00 inclusive of disbursements and HST payable by the applicant within thirty days.

NORDHEIMER J.

DATE: March 20, 2014