DIVISIONAL COURT FILE NO.: 525/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. Horkins, Harvison Young, Grace JJ.
BETWEEN:
Luke Stewart and Krista Schneider
Applicants
– and –
Office of the Independent Police Review Director
Respondent
Clayton Ruby and Gerald Chan, for the Applicants
Heather Mackay, for the Respondent
HEARD: Monday, September 22, 2014
Harvison YOung J.
1Luke Stewart and Krista Schneider (the “applicants”) move to set aside a decision rendered by DiTomaso J. In his decision, DiTomaso J. quashed on the basis of mootness the applicants’ Application for Judicial Review of the decisions rendered by the Respondent, the Director of the Office of the Independent Police Review (“Director”; “OIPRD”).
2The applicants argue that the motions judge erred in quashing the application on the basis of the mootness test as set out in Borowski v. Canada 1989 123 (SCC), [1989] 1 S.C.R. 342. Rather, they submit, as a single judge, he should have applied the “plain and obvious” test to the motion to quash and referred it to a panel who could have determined the mootness issue. The applicants also submit that, in any event, the motions judge erred in his application of the Borowski test.
Background
3Luke Stewart and Krista Schneider are both graduate students in their late 20s who filed complaints of police misconduct with OIPRD in August 2010, following the G20 Summit in Toronto in June 2010. Stewart complained that he was illegally searched as he entered Allan Gardens Park and Schneider complained that she was unlawfully arrested and assaulted when an officer picked her up off the ground by her backpack and threw her forward on Spadina Avenue.
4The Director “screened in” their complaints pursuant to s. 60 of the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”), such that these complaints would be investigated by the OIPRD. Given the volume of G20 complaints, there were delays in the completion of the investigations. Upon concluding the investigations, the Director determined that there were reasonable grounds to believe that the police officers involved had committed misconduct pursuant to the PSA. The Director referred these matters to the appropriate Chiefs of Police for disciplinary hearings.
5Disciplinary hearings are commenced by serving a Notice of Hearing (“Notice”) on the officers involved. Pursuant to s. 83(17) of the PSA, if more than six months lapse from the date the Director retains a complaint for investigation until the date when Notice is served, the Director must ask the Chief to ask the relevant Police Services Board for an extension of time in which to serve the Notice. The Board must then determine if it is “reasonable under the circumstances” to delay serving the Notice.
6In 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 in which to serve Notice and recommended that the matters be closed. The Chiefs complied with the Director’s directions.
7The applicants brought an Application for Judicial Review naming the Director and Chiefs of Police as respondents. The application challenges the Director’s direction to the Chiefs not to seek extensions of time and seeks orders quashing both the Director’s directions to the Chiefs and the Chiefs’ decisions not to proceed with the hearings into the alleged misconduct irrespective of the Directors’ directions.
8While the application was pending, the Divisional Court rendered its decision in Endicott v. Ontario (Independent Police Review Director), 2013 ONSC 2046, 115 O.R. (3d) 328, that pursuant to s. 68(5) of the PSA a person who makes a complaint to the Director has a right to have that complaint investigated and to have that complaint proceed to a hearing. The Ontario Court of Appeal has since released its decision dismissing the Director’s appeal: Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, 373 D.L.R. (4th) 149.
9Despite appealing the Divisional Court’s decision in Endicott to the Ontario Court of Appeal, the Director reconsidered his decision regarding the applicants’ complaints based on the Divisional Court’s ruling. The Director reversed his earlier directions and directed the Chiefs to seek extensions of time from the relevant Boards.
10The Director has maintained that, notwithstanding this reconsideration, he had authority pursuant to s. 72 of the PSA to direct the Chiefs as he did. There is no real dispute that the individual relief sought in the original Notice of Application and Amended Notice of Application was addressed by the Director’s reconsideration of his earlier decision. However, at paras. 1(b) and (f) of the the Amended Amended Notice of Application, the applicants apply for declaratory relief which is not addressed by the Director’s reconsideration of his earlier decision:
- The applicants make this application for:
(b) Declaration that the OIPRD exceeded its statutory powers when it directed the York Chief and Toronto Chief not to proceed further with the Stewart Complaint;
(f) Declaration that the OIPRD exceeded its statutory powers when it directed the Peel Chief not to proceed further with the Schneider Complaint […].
11This application to set aside the order made by the motions judge, brought pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C-43 (“CJA”)raises two main issues. First, did the motions judge apply the correct test in reaching his conclusion that the applications should be quashed for mootness? Second, if the motions judge was correct in applying the Borowski test, did he apply the correct considerations/elements of the test?
12For the reasons that follow, I would dismiss the application.
The Standard of Review
13Both parties cite Deeb v. Investment Industry Regulatory Organization of Canada, 2012 ONSC 3443, [2012] O.J. No. 2873, in which Sachs J. writes at para. 2: “On a motion pursuant to s. 21(5), the standard of review is correctness on matters of law and palpable and overriding error on matters of fact or matters of mixed fact and law.”
14In this case, the question as to whether the motions judge applied the correct test is one of law which is subject to the correctness standard. With respect to the second issue in relation to the application of the test, the standard of review is that of palpable and overriding error.
Did the motions judge apply the correct test to the mootness issue?
15The motions judge declined to apply the “plain and obvious test” and stated as follows:
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 (at para. 25).
16The applicants submit that the motions judge erred by applying the Borowski test which, as all parties agree, is the governing authority on the test for mootness. Rather, they submit, he should have applied the “plain and obvious” test, according to which the application could not be struck unless the moving parties could establish that it was plain and obvious that the application for judicial review could not succeed. They submit that the application should have been permitted to proceed to a panel. They submit that the motions judge erred in finding that the authorities did not support the application of the “plain and obvious” test is to a mootness determination.
17In our view, the authorities do not support the application of the “plain and obvious” test to applications to quash for mootness, or to the related submission that such applications must be heard by a full panel of the Divisional Court: see Reid v. Ontario (Minister of Municipal Affairs and Housing), [1996] O.J. No. 3905 (Div. Ct.).
18While the “plain and obvious” test has been applied in Ontario on motions to quash applications for judicial review, those have been in cases where the grounds to quash the motion have been prematurity, jurisdiction , standing, collateral attack, abuse of process, justiciability or other defects on the face of the application. See: Deeb; Adams v. Canada (Attorney General), 2011 ONSC 325, [2011] O.J. No. 207 (Div.Ct.); Lockridge v. Ontario (Director, Ministry of the Environment, 2012 ONSC 2316, 350 D.L.R. (4th) 720 (Div. Ct.). This makes sense, because the “plain and obvious” test is the same test that is applied in a Rule 21 motion to strike an action, which deals with whether there is a defect in the proceeding on its face. An examination as to whether a matter is moot is quite different. It requires a consideration of whether a legal controversy between the parties has become moot because of subsequent events. Moreover, when a court considers whether a matter should proceed despite being moot, the court must inquire into the details of the relief sought, the context surrounding the application and whether it is a matter of public importance. These factors are generally not considered when applying the “plain and obvious” test.
19In support of their position that the “plain and obvious” test should have been applied, the applicants rely on a number of Federal Court of Canada decisions relating to matters unique to that court such as drug patents, federal public inquiries and a challenge to an appointment to the Order of Canada, all of which have their own unique rules and processes: see Merck & Co. v. Canada (Attorney General), [1999] F.C.J. No 794; Sawridge Band v. Canada,1997 5294 (FCA), [1997] 3 F.C. 580; Merck Frost Canada Inc. v. Canada (Minister of National Health and Welfare), [1997] F.C.J. No. 222; Chauvin v. Canada, 2009 FC 1202, [2009] F.C.J. No. 1496; Labbé v. Canada,1997 4928 (FC), 146 D.L.R. (4th) 180,[1997] F.C.J. No. 369; Pharmacia Inc. v. Canada, [1995] 1. F.C. 588, 1994 3529 (FCA), [1994] F.C.J. No. 1629 (F.C.A.). For example, judicial review applications in relation to drug patents are commenced by a special Notice of Motion and require a less extensive record than applications for judicial review in the Divisional Court. None of these cases have been applied by any Ontario court and there is no authority from any Ontario court which states that any test beyond the Borowski test is required on a motion to quash for mootness.
20The applicants also submit that there are two policy rationales for requiring that a motion to quash on the basis of mootness be determined by the panel. First, they argue that this will promote judicial economy because it will be more efficient for the panel to address this issue rather than adding an unnecessary interlocutory step to the proceedings. I do not agree that judicial economy would be enhanced by requiring motions to quash for mootness to be heard by full panels of three judges. As the motions judge observed, this court has the jurisdiction to determine whether or not an application ought to be dismissed for mootness and there is nothing further that could make a difference to a full panel of the Divisional Court. The judicial economy argument, in my view, does not support a general rule that would require that such motions be determined by a full panel.
21The second policy rationale advanced by the applicants in support of their position is that because judicial review remedies are discretionary in nature, they require contextual analyses of all the circumstances. Such analyses, in their submission, are best performed by a panel of the court after hearing full argument on the merits, and not by a single judge on an interlocutory motion. In their view, where a motion to quash is based on mootness, “the decision is doubly discretionary” because the court must decide whether to exercise its discretion to grant the remedy sought and must also decide whether to exercise its discretion to adjudicate the case in the first place.
22The applicants’ submission, then, is that a motions judge should not quash an application for judicial review unless it is plain and obvious that the discretion to adjudicate on the merits will not be exercised.
23I do not agree. As I have discussed above, the Ontario case law supports the application of the mootness test to cases where, as here, the factual dispute between the parties no longer exists. It is not clear why the “plain and obvious” test, which is a hard test to meet, should be applied to such a case. If the applicants’ argument that the “plain and obvious” test applies is correct, a single judge will never be able to quash for mootness as there is virtually no room for the exercise of discretion in the application of the “plain and obvious” test, while discretion lies at the core of the application of the Borowski test for mootness.
24In short, I am of the view that the motions judge did not err in applying the Borowski test and in declining to apply the “plain and obvious” test.
Is there a basis for reviewing the application of the Borowski test by the motions judge?
25The next question raised by this application is whether there is a basis for reviewing the motions judge’s discretionary decision, under Borowski, to decline to hear a moot matter. The application of Borowski to the circumstances of this case is a matter of mixed fact and law, and accordingly, the applicable standard of review is mixed palpable and overriding error: Deeb, at para. 2.
26The test for mootness was established by the Supreme Court of Canada in Borowski and is set out in that case at para. 16:
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.
27The applicants submit that the motions judge erred in his analysis of the three Borowski factors to determine whether the Court should exercise its discretion to decide the application despite its mootness. Specifically, they submit:
…the motions judge erred in: (i) treating the absence of collateral consequences as being determinative of the “adversarial context” factor; (ii) missing the public importance of the issue in the “judicial economy” analysis; and (iii) concluding that the law is in flux because of the entirely different case of Endicott.
28There is no real dispute that the Director’s reconsideration of his decision not to direct the Chiefs to seek extensions effectively meant that the applicants were in the position that they would have been in had they obtained the relief sought in their original application. The core of the relief now sought through the Amended Amended Application is declaratory: the applicants seek a Declaration that the Director exceeded his powers when he stated that he was not bound to seek the extensions.
29This is a matter that would require the court to interpret s. 72 of the PSA. The motions judge was of the view that interpreting s. 72 and issuing a Declaration would not have any practical impact, nor would a Declaration have any “collateral consequences.” There was no “adversarial context” to the parties’ dispute over the interpretation of s. 72, because the parties were not opposed in interest. I do not find that the motions judge committed an error of law in this determination.
30The motions judge also held that the public interest did not warrant adjudicating the issue. He concluded that the remedies the applicants sought were only applicable to themselves and had already been granted. The applicants were not purporting to act on behalf of any interest beyond their own. I am not persuaded that the motions judge committed any error of law or principle that justifies interfering with this conclusion.
31Finally, the motions judge did not commit any palpable or overriding error in concluding that the applicants’ moot application is not the only means by which the court will be able to determine the interpretation of s. 72. There is no reason to doubt the motions judge’s conclusion that a better and more genuinely adversarial context for interpreting s. 72 may arise in the future.
Conclusions and Costs
32For the foregoing reasons, the motion is dismissed. The respondent advised that it would not seek its costs of this motion, and accordingly, there will be no order as to costs.
C. Horkins J.
Harvison Young J.
Grace J.
Released:
CITATION: Stewart et al. v. Office of the Independent Police Review Director et al., 2014 ONSC 6150
DIVISIONAL COURT FILE NO.: 525/12
DATE: 20141106
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. Horkins, Harvison Young, Grace JJ.
BETWEEN:
Luke Stewart and Krista Schneider
Applicants
– and –
Office of the Independent Police Review Director
Respondent
REASONS FOR JUDGMENT
Harvison Young J.
Released: November 6, 2014
