The background

[1] The applicant, a constable employed by the respondent, Ottawa Police Service (OPS”), was charged with one count of Unnecessary Exercise of Authority under the Code of Conduct set out as a Schedule to Ontario Regulation 268/10 enacted under the Police Services Act. The charge was the result of a complaint made by the respondent, Mark Krupa, (“Krupa”), the Public Complainant, in relation to certain alleged unnecessary force used in the course of his arrest by the applicant on May 10, 2009.

[2] The applicant pleaded not guilty to the charge before a Hearing Officer and a four-day disciplinary hearing ensued. On November 16, 2012, the Hearing Officer found the applicant guilty of one count of Unnecessary Exercise of Authority and imposed a “penalty of forfeiture of 12 days’ time”.

[3] In reaching her decision, the Hearing Officer, relying on the judgment of the Supreme Court of Canada in F.H. McDougall, 2008 SCC 53 [McDougall], applied the civil standard of proof, on “a balance of probabilities”.

[4] The applicant contested the applicability of the civil standard of proof to Police Services Act matters and argued that the applicable standard of proof was “clear and convincing evidence”, as described in s. 84(1) of the Police Services Act. That language was discussed by the Supreme Court of Canada in Penner v. Niagara Steel (Regional Service Police Board, 2013 SCC 1 at paragraph 60 where the Court stated that this was a higher standard than on a balance of probabilities.

[5] The applicant appealed the decision of the Hearing Officer on both conviction and penalty to the OCPC alleging errors in fact and in law. On March 25, 2014, a Member of the OCPC dismissed the applicant’s appeal, holding that the standard of proof in police discipline matters is on a balance of probabilities.

This application

[6] This application is for judicial review of the order of the Member of the OCPC dated March 25, 2014. The applicant now asks us to quash the Member’s order and remit the charge against him to the OCPS for a new hearing before a different Hearing Officer. It is my view, however, that if there were to be a remission, it would properly be to the OCPC where the order that is the subject of this application was made.

[7] The applicant had a right to appeal the order of the Member pursuant to section 88 (1) of the Police Services Act, R.S.O. 1990, c. P.15 but failed to commence his appeal within the statutory limit of 30 days after receiving notice of the OCPC’s decision. That left him no alternative but to proceed with an application for judicial review and, as there was no objection raised by the respondents and because of the importance of the issue raised, we permitted him to do so.

The missing party, the Ontario Civilian Police Commission

[8] At the commencement of the hearing of this application, we asked counsel for the applicant why the OCPC was not named as a party to this application and given an opportunity to participate in this hearing and were advised by him that he had overlooked that requirement. After some discussion with all counsel, counsel for the applicant contacted the OCPC by telephone and reported to us that he had been advised us that the OCPC was content to rely on counsel for the OPS to present its position to the Court and that it did not require that the hearing be adjourned so that it could be served with notice and the right to participate. With that assurance and the agreement of all counsel, all of whom bear some responsibility for the applicant’s oversight, we proceeded with the hearing.

The issue

[9] The only issue raised in this application is whether the OCPC erred in law with respect to the standard of proof that it held was applicable.

[10] Accordingly, we must determine only whether the OCPC Member erred in law in holding that the proper standard of proof was the civil standard of “on a balance of probabilities” and whether that standard, in the circumstances, satisfied the “clear and convincing evidence” requirement in s. 84(1) of the Police Services Act.

The standard of review

[11] All counsel agreed that the applicable standard of review in this application is that of correctness and that failure by the OCPC Member to apply the correct standard of proof would be an error of law

The position of the applicant

[12] Counsel for the applicant submits that Part V of the Police Services Act forms a substantive procedural code for the discipline of police officers. Section 84(1) of the Act states as follows:

If at the conclusion of a hearing under subsection 66 (3), 68 (5) or 76 (9) held by the chief of police, misconduct as defined in section 80 or unsatisfactory work performance is proved on clear and convincing evidence, the chief of police shall take any action described in section 85. 2007, c. 5, s. 10 [emphasis added].

[13] His counsel further submits that the Legislature has the authority to define the standard of proof applicable to an administrative tribunal’s decision-making process. Police discipline hearings are administrative matters that are governed by the Police Services Act. The police discipline process is an administrative matter within the context of the employment relationship. The applicant relies on a number of legal texts to support the principle that “[p]arliament and the legislature are free to enact laws that displace the common law via statute” (Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, looseleaf (Toronto: Carswell, (2014) at ¶ 17-14.1).

[14] He further submits that in McDougall, the Supreme Court of Canada was concerned with the standard of proof applicable in civil cases where there are allegations of criminally or morally blameworthy conduct. The ultimate conclusion of the Supreme Court, at paragraph 49, was:

In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred [emphasis added].

[15] However, he points to the recent case of Penner as the appropriate authority for this case. In Penner, the issue before the Supreme Court was whether issue estoppel ought to preclude a claim from proceeding civilly after being dismissed by the police disciplinary tribunal. The majority held that it would be unfair to apply issue estoppel in this case for a number of reasons, one of which involved the different standards of proof between the civil action and police discipline hearing. At paragraph 60, the Court stated:

In our view, this analysis is flawed. It cannot necessarily be said that issue estoppel "works both ways" here. As the Court of Appeal recognized, because the PSA requires that misconduct by a police officer be "proved on clear and convincing evidence" (s. 64(10)), it follows that such a conclusion might, depending upon the nature of the factual findings, properly preclude relitigation of the issue of liability in a civil action where the balance of probabilities — a lower standard of proof — would apply. However, this cannot be said in the case of an acquittal. The prosecutor's failure to prove the charges by "clear and convincing evidence" does not necessarily mean that those same allegations could not be established on a balance of probabilities. Given the different standards of proof, there would have been no reason for a complainant to expect that issue estoppel would apply if the officers were acquitted. Indeed, in Porter, at para. 11, the court refused to apply issue estoppel following an acquittal in a police disciplinary hearing because the hearing officer's decision "was determined by a high standard of proof and might have been different if it had been decided based on the lower civil standard". Thus, the parties could not reasonably have contemplated that the acquittal of the officers at the disciplinary hearing would be determinative of the outcome of Mr. Penner's civil action [emphasis added].

[16] Hence, counsel for the applicant submits that, in Penner, the majority of the Supreme Court stated that the standard of proof of clear and convincing evidence, applicable by virtue of s. 84(1) of the Police Services Act, is not equivalent to a balance of probabilities but is in fact a higher standard.

[17] He further submits portions of Patrick Lesage’s “Report on the Police Complaints System Ontario”, and of Hansard debates support his position that the Legislature intended to create a separate standard of proof, namely, clear and convincing evidence in cases pursuant to the Police Services Act.

The position of the respondent, Mark Krupa, the Public Complainant

[18] Counsel for the respondent, Mark Krupa (Krupa”), summarized his submissions in paragraph 27 of his factum which reads as follows:

Ultimately, it is submitted that the reasoning of the Commission as to why the F.H. v McDougall test is the appropriate one to be applied to police discipline proceedings is cogent and correct and ought to be adopted by this Court. By applying F.H.v McDougall, the Hearing Officer applied the correct test. In addition to applying F.H. v McDougall, she considered and applied the Carmichael test that “there must be weighty, cogent and reliable evidence upon which a trier of fact, acting with care and caution, can come to a reasonable conclusion that the officer is guilty of misconduct”. She made no error. The Application ought to be dismissed.

[19] His counsel submits that the essential question answered in McDougall was whether there exists an intermediate standard of proof between a balance of probabilities and proof beyond a reasonable doubt. The answer of the Supreme Court was an unequivocal no; there are only two proof standards in Canada, proof beyond a reasonable doubt and a balance of probabilities.

[20] While the Supreme Court of Canada described a balance of probabilities as the standard applicable in civil cases, counsel for Krupa submits that this includes professional discipline cases. In rejecting the existence of an intermediate standard, the Supreme Court spoke directly to the “clear and convincing evidence” standard, used in professional discipline proceedings, and how this fits within the balance of probabilities test:

Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be, the judge must make a decision. If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test [para 46; emphasis added].

[21] Counsel for Krupa further submits that there is no authority that trumps McDougall; Penner carries no weight here. The issue before the Court in Penner was relevant to the doctrine of issue estoppel in civil litigation, not the “clear and convincing evidence” standard. In Penner, there was no disagreement between the parties as to the applicable standard of proof in police discipline cases, hence the Court and parties in Penner made no mention of McDougall.

[22] He further submits that the apparent conflict between McDougall and Penner came about because both parties in Penner relied on a lower court decision in Porter v. York (Regional Municipal Police), [2001] O.J. No. 5970 (Ont. S.C.J.) which was subsequently overtaken by McDougall, for the proposition that a standard of proof higher than a balance of probabilities applies to police discipline proceedings. As this was not put in issue, the majority in Penner simply agreed with the appellant that the consequence of there being a higher standard of proof (without any analysis of the standard of proof) points away from the application of the doctrine of issue estoppel. The dissent accepted the respondent’s argument that, in light of the factual findings made by the adjudicator in the Police Services Act prosecution in Penner, the question of the standard of proof was irrelevant to the issue of issue estoppel on the facts in that case.

[23] Overall, counsel for Krupa submits that it is unlikely that the Supreme Court overruled itself without any analysis of the issue or any mention of the controlling jurisprudence.

[24] Finally, he submits that the Legislature has provided no guidance as to the proper interpretation of s. 84(1) of the Police Services Act. He contests the relevance of the Hansard debates cited by the applicant. In particular, he submits that, upon examining the Hansard excerpts cited by the applicant at the second reading of the associated bill, the “clear and convincing evidence” test was referred to a single time by a member of the third party, Peter Kormos, who made brief reference to the comments made by Mr. Lesage on this subject. The issue was not debated at the second reading and no other member commented on it.

[25] In addition, he submits that Mr. Lesage’s report cannot be taken as authority as to the meaning intended by the legislature in the phrase “clear and convincing evidence.” At the time of writing the report, Mr. Lesage was counsel for Gowlings and was simply writing his own personal opinion, not a judicial opinion.

[26] Absent any clear legislative intent, counsel further submits that a decision of the Supreme Court of Canada explaining what is meant by “clear and convincing evidence” applies equally to police discipline proceedings as to any other type of proceeding. The “clear and convincing” test has become the generally accepted common law test used in professional discipline cases throughout Ontario. While the Police Services Act is the only statute that references this term, counsel for Krupa submits that the term cannot mean anything different than the adopted standard at common law.

The position of the respondent, Ottawa Police Service

[27] Counsel for the respondent, the OPS, submits that Police Services Act hearings are civil proceedings. In R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541, [1987] S.C.J. No. 71, the Supreme Court established that police discipline matters are not criminal or quasi-criminal proceedings. Police discipline matters are analogous to employer/employee matters, with the most serious consequence being the loss of an officer’s job. The respondent submits numerous cases where panels of the Divisional Court have held that disciplinary proceedings are civil proceedings.

[28] He agrees that “clear and convincing evidence” is not defined in the legislation and submits that the Court must look for meaning in established precedent. He also submits that the Supreme Court confirmed that the only civil standard of proof known to Canadian law is a balance of probabilities. As stated by Justice Rothstein, in McDougall at paragraph 40:

…I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof….

[29] He further submits that Penner did not have the effect of overturning, varying, or modifying the McDougall decision. In Penner, the Court was charged with reviewing issue estoppel and not the issue of balance of proof. The Court was faced with an abstract argument from the Appellant on the differing burdens of proof between police discipline proceedings and civil proceedings. The Hearing Officer in that case did not resort to a higher standard of proof in making his findings of fact. Thus, the Supreme Court of Canada referred only to the issue of balance of proof in obiter in one paragraph of the decision. Therefore, McDougall case remains the leading case.

[30] Counsel for the OPS also relies on the case of Burrows and Ontario Provincial Police (August 13, 2012) OCPC, at paragraphs 85-89, which held, “s. 84 of the Act describes the nature of the evidence required to justify a standard of proof, rather than enunciating a standard of proof”.

[31] Finally, he submits that the Lesage Report and Hansard debates cited by the applicant are not on point. The issue of standard of proof, while mentioned, was not the subject of the report or of the government’s 2007 amendments to the Police Services Act.

Analysis

[32] The wording in s. 84 of “clear and convincing evidence” was added to the Police Services Act in 1990 without comment by the Legislature. The Act was amended in 1997 and the wording remained, still without comment. We do not have any discussion that reflects the Legislature’s underlying intention.

[33] The judgment in Porter, in which it was stated that “clear and convincing evidence” meant a standard that was “much higher” than a balance of probabilities, was a Superior Court decision made in 2001.

[34] In the following year, 2002, the Ontario Court of Appeal decided in Corporation of the Canadian Civil Liberties Association v. Ontario (Civilian Commission on Police Services), 2002 45090 (ON CA), [2002] O.J. 3737, 165 O.A.C. 79 (C.A.) that “clear and convincing evidence” was “slightly higher” than a balance of probabilities.

[35] In 2005, the Lesage report, referred to in CCLA v. Ontario, stated that “clear and convincing evidence” was a higher standard of proof than proof on a balance of probabilities.

[36] The Police Services Act was amended in 2007, and the “clear and convincing evidence” wording remained. The amendments created a new civilian body to administer the police review system in Ontario. There were some brief comments referring to the Lesage report and judicial interpretation by several members of the provincial parliament. A sliding scale of standards was discussed but rejected. There was otherwise no discussion or guidance as to what was meant by “clear and convincing evidence.” Again, there is no indication by the Legislature of an intention to create a separate statutory standard of proof.

[37] In 2008, the Supreme Court of Canada, in McDougall, looked at the “clear and convincing evidence” test in professional discipline cases. The Court stated, at paragraph 46, that “Evidence must always be sufficiently clear, convincing, and cogent to satisfy the balance of probabilities test.” The Court’s conclusion was that “clear and convincing evidence” related to the nature of the evidence required to justify the standard of proof, rather than to the recognition of a different standard. In our view it stands as a warning message that, to meet the balance of probabilities test, the quality of the evidence must be sufficiently clear and convincing. The sufficiency of the evidence is met when it establishes an issue on a balance of probabilities. McDougall squarely rejected the existence of an intermediate standard of proof.

[38] Five years later, in 2013, in Penner, the Supreme Court stated that “clear and convincing evidence” is a different and higher standard of proof than balance of probabilities. The Court cited the much earlier decision of Porter and made no reference to its own decision on point in McDougall (see paragraph 60).

[39] The focus of Penner was issue estoppel rather than the standard of proof. Importantly, both parties in that case accepted that a higher standard of proof applied in police disciplinary proceedings and the point was not argued. Rather, the relevant point of contention was whether, accepting that the standard is higher in police disciplinary proceedings than in a civil suit, an acquittal in the former precluded the matter from being re-litigated in a civil suit. The Court concluded that it did not.

[40] In coming to its conclusion in Penner, the Court did not undertake any analysis of whether the higher standard of proof advanced by the parties was actually applicable to police disciplinary proceedings. Importantly, the Court did not refer to any jurisprudence and did not mention McDougall in which the Court had stated five years earlier and in no uncertain terms that the standard for all civil proceedings is a balance of probabilities.

[41] In McDougall, the Supreme Court had specifically rejected the existence of an intermediate standard. Accordingly, the remarks by the Court in paragraph 60 of Penner cannot be taken as their intention to overturn, vary, or modify their decision in McDougall in light of the fact that the issue was neither before the Court nor addressed by the Court in Penner on the basis of any jurisprudence. Therefore, it is my view that the civil burden of proof of a balance of probabilities has not been displaced by the s. 84 wording, requiring “clear and convincing evidence,” nor by the Supreme Court’s remarks in the Penner decision.

[42] Police discipline hearings remain civil proceedings, whose sanctions are administrative and relate to employment matters. As such, the standard of proof remains the civil standard of proof on a balance of probabilities.

Disposition

[43] This application for judicial review is dismissed.

Costs

[44] Neither the applicant nor the respondent, OPS, is seeking costs. However, Krupa does. Accordingly, Krupa may make written submissions with respect to costs by delivering them to the office of this Court and providing copies to the other parties no later than on the 15th day following the release of these reasons. The other parties may reply with their submissions in a similar manner no later than on the 15th day following the delivery of Krupa’s submissions to the Court.

Matlow J.

Lofchik J.

M.J. Donohue J.

May 27, 2015

CITATION: Jacobs v. Ottawa Police, 2015 ONSC 2240

COURT FILE NO.: DC-14-2016

DATE: 20150527

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, LOFCHIK & DONOHUE, J.J.

B E T W E E N:

Constable Kevin Jacobs

Applicant

and -

Ottawa Police Service (Chief of Police) and Mark Krupa (Public Complainant)

Respondents

REASONS FOR JUDGMENT

BY THE COURT

Date: May 27, 2015

Jacobs v. Ottawa Police, 2015 ONSC 2240

Case Summary

The background

This application

The missing party, the Ontario Civilian Police Commission

The issue

The standard of review

The position of the applicant

The position of the respondent, Mark Krupa, the Public Complainant

The position of the respondent, Ottawa Police Service

Analysis

Disposition

Costs

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 3