CITATION: Amormino v. Police Services Board (OPP), 2015 ONSC 7165 DIVISIONAL COURT FILE NO.: 551/14 DATE: 20151127

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

DETECTIVE CONSTABLE SALVATORE AMORMINO (OPP) Applicant

– and –

POLICE SERVICES BOARD (OPP), SUPERINTENDENT ROBIN D. MCELARY-DOWNER (FORCE ADJUDICATOR-OPP), COMMISSIONER OF PROVINCIAL POLICE (OPP) J.V.M. (VINCE) HAWKES, MINISTER OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, ATTORNEY GENERAL OF ONTARIO, OPP ASSOCIATION (KARL WALSH) Respondents

COUNSEL: Rocco Galati, for the Applicant Christopher Diana, for the Respondents, Superintendent Robin D. McElary-Downer, Commission of Provincial Police (OPP) J.V.N. (Vince) Hawkes, Minister of Community and Safety Correctional Services.

HEARD at Toronto: November 17, 2015

BEFORE: M.A. Sanderson J.

REASONS FOR DECISION

Introduction

[1] The Applicant, an Ontario Provincial Police Officer, seeks a stay of his misconduct hearing under Part V of the Police Services Act, (hereinafter “the disciplinary proceedings”) scheduled to start on December 14, 2015, until after his Application for Judicial Review in this Court has been heard and decided.

[2] The hearing of the Application for Judicial Review is scheduled for December 7, 2015.

[3] In his Application for Judicial Review, the Applicant has challenged the constitutionality of the disciplinary proceedings. On the Application for Judicial Review, his counsel intends to submit that in the disciplinary proceedings he cannot receive a fair and impartial hearing. Under the disciplinary proceedings, the OPP “investigates” and “substantiates” an allegation and refers it to Adjudication. The Adjudicator is a Superintendent of the OPP. The prosecutor is usually an OPP officer.

[4] He also intends to allege, in effect, that the complaints against the Applicant to be heard at the disciplinary proceedings are retributive, have been brought in bad faith, in response to the Applicant’s own complaints against a number of individuals, and to deflect attention from their own improper conduct.

[5] The Respondents oppose the request for a stay.

Facts

[6] The Applicant is 63 years old.

[7] He alleges that before 2012 he had excellent performance reviews at the OPP. It was only after July 30, 2010, when he began an 18-month investigation (Project Savage) that his difficulties began.

[8] He alleges that as a result of Project Savage, charges were laid against three men, Jamal Ahmand Hazime (“Hazime”) (including impersonation, 16 counts of forgery, 16 counts of drawing a forged document, 16 counts of uttering a forged document, 16 counts of obtaining instrument), Sahbi (Alex ) Bakir (“Bakir”) (including 15 counts of forgery, 15 counts of drawing a forged document, 15 counts of uttering a forged document, 15 counts of obtaining instrument), Souheil (Daniel) Yazbek (“Yazbek”) (including, 1 count of public mischief, 2 counts of forgery, 2 counts of drawing a forged document, 2 counts of uttering a forged document, 2 counts of obtaining instrument).

[9] The Applicant alleges that by the time Hazime, Bakir and Yazbek were arrested, the investigation had revealed that vehicles were being fraudulently delivered to the Congo and that approximately $300,000 per month was being laundered and sent there for eventual use by a listed terrorist group.

[10] In April of 2012, an eight week hearing at the Ontario Motor Vehicle Industry Council (“OMVIC”) was convened with respect to the licences of Bakir and Yazbek. The Applicant and six (6) victim witnesses testified. A lawyer named Liddle represented both Bakir and Yazbek.

[11] On November 27, 2012 the criminal charges against Bakir were withdrawn. The Applicant alleges there were no prior discussions with any police investigators.

[12] The Regional Deputy Crown Attorney on the case between September and November, 2011, Renee Puskus (“Puskus”) was at the time married to Liddle. The Applicant complained about the withdrawal of the charges and what he perceived to be a conflict of interest.

[13] He alleges that the withdrawal of the Bakir chargers was followed by the return from Lebanon of Hazime, on June 5, 2013, to plead to his charges and to receive a $300 fine. He alleges that that result had been pre-arranged by the Crown Attorneys without any consultation with the investigative team.

[14] The Applicant alleges that the criminal charges were dropped to protect Puskus and her husband against the consequences of obvious conflict of interest and, “in all likelihood a compromise of the investigation”, and to prevent the Applicant and other police officers from further complaining about that conflict of interest.

[15] The Applicant alleges that following the dropping of the charges and his complaints, Puskus began investigating him. On August 7, 2013, without being advised he was being investigated, and without being advised of his rights or given the opportunity to seek and retain legal counsel, the Applicant was suspended “pending criminal investigation” and was barred from the Court-house and Crown Attorney’s office.

[16] By November 14, 2013, the OPP had concluded that there was no basis for criminal charges against the Applicant.

[17] However, in 2013, Crown Attorneys Costa, Brown, Garson, and Puskus made “internal” complaints about the Applicant to the Professional Standards Bureau of the OPP, including two allegations of neglect of duty, insubordination, discreditable conduct [that allegedly occurred on April 11, 2013], one allegation of deceit [alleged to have occurred on September 19, 2012 and April 15, 2013], and one charge of discreditable conduct [that allegedly occurred on November 21, 2013].

[18] Counsel for the OPP presented a very different version of the facts. He submitted that internal complaints against the Applicant were not limited to matters that arose out of Project Salvage. He denied the allegations about the conduct of the Crown Attorneys. He submitted that the complaints included allegations that the Applicant had improperly conducted police database queries, that he had wrongfully disclosed confidential information to persons not authorized to have such information, and that he had done so for his personal benefit in relation to his bailiff business. The Applicant was also alleged to have acted deceitfully by knowingly giving false evidence at an OMVIC hearing.

[19] Counsel for the OPP alleged various incidents of investigative misconduct against the Applicant, including knowingly submitting inaccurate information on judicial authorizations, improperly interviewing Crown witnesses, providing misleading information to the Crown Attorney’s office, disclosing confidential information from a prosecution to his business partner and by criticizing various local lawyers (including comments related to sexual orientation) and the Windsor Police Service.

[20] Many of the allegations, including the two public complaints, related to the Applicant’s involvement in a bailiff business and his allegedly improper dealings with individuals involved in that business. For instance, the Applicant is alleged to have inappropriately utilized OPP resources in his personal business, as well as having failed to properly investigate his now former business partner.

[21] Not all matters to be heard in the disciplinary proceedings arose as a result of internal complaints. A public complainant has alleged that the Applicant deliberately acted in such a way so as to harm his economic interests.

[22] On February 14, 2014, the Police Service Act proceedings came before an Adjudicator.

[23] On May14, 2014, pre hearing motions were scheduled for December 2014, and the hearing was scheduled for January and February 2015.

[24] In September 2014, Mr Galati advised he would be seeking Judicial Review and on consent of the OPP, an adjournment of the disciplinary proceedings was granted pending the Applicant’s Application for Judicial Review. The parties agreed that pre hearing motions would be heard in June and July 2015, and the hearing itself would commence in September 2015.

[25] By December 23, 2014, the Applicant had received 18801 pages of disclosure including prosecution brief and notes.

[26] The Applicant’s Application for Judicial Review was perfected on April 29, 2015. To accommodate the schedules of counsel, the hearing was set for December 7, 2015.

[27] On April 30, 2015, the hearing was rescheduled for November and December 2015.

[28] On September 24, 2015,counsel for the Applicant moved before Superintendent Robin McElary-Downer for a further adjournment, asking that the pre hearing motions be scheduled to commence seven days after the Divisional Court hearing, by then scheduled for December 7, 2015, and that the commencement of the hearing be scheduled to start 60-90 days thereafter.

[29] Superintendent McElary-Downer granted the adjournment request in part, ordered that the pre hearing motions commence on December 14, 2015, and that the hearing be scheduled immediately after sufficient time had been allowed to decide on the motions. If there were no motions, the hearing would commence on December 14, 2015.

[30] The Applicant then brought this motion in this Court.

The Test for a Stay

[31] It is uncontested that a stay may be obtainable of on-going administrative hearings pending judicial review [see: Manitoba (A.G.) v. Metropolitan Stores Ltd. 1987 79 (SCC), [1987] 1 S.C.R. 110; Toth v. MEI (1988) 1988 1420 (FCA), 6 Imm. L.R. (2d) 123 (FCA); RJR MacDonald Inc. v. Canada(AG) 1994 117 (SCC), [1994] 1 S.C.R. 311(SCC); Copello v. Canada [1998] FCJ No. 1301;York Region Board of Education v. Markham, [1992] O.J. No. 3755; Douglas v. A.G.C., 2013 FC 776; Douglas v. Canada (A.G), 2014 FC 1115].

[32] Counsel agreed that in determining whether a stay should be granted, the test in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] S.C.R. 311 at para. 43 should be applied. A stay should only be granted where the Applicant can establish: That there is a serious issue to be tried; That the applicant would suffer irreparable harm if a stay were not granted; and that the balance of convenience favours the applicant.

Serious Issue to be Tried

[33] The threshold for this part of the test is low. So long as the underlying application is neither frivolous nor vexatious, the first part of the test will ordinarily be met.

[34] The parties agreed that the Applicant here has met the low threshold required by the jurisprudence with respect to this part of the test.

Irreparable Harm

[35] Irreparable harm is harm that either cannot be quantified in monetary terms, or that cannot be remedied by a subsequent order [see: RJR MacDonald, supra, at paras. 58-60]

[36] Counsel for the Applicant submitted that if a stay is not granted, there will be irreparable harm on 2 planes: (1) to the administration of justice – breach of the Constitution; (2) to the Applicant – damage to his reputation.

[37] Counsel for the Applicant submitted that he has and will continue to suffer irreparable harm if the disciplinary proceedings are not stayed until after the release of the decision on his Application for Judicial Review. Reputational and psychological integrity and damage is protected under s.7 of the Charter.

[38] He cited Copello v. Canada [1998] FCJ No. 1301, at para 5,where the Federal Court wrote at paragraph 5:

[5] As to the second branch of the test, irreparable harm, the evidence though thin, is uncontradicted that the applicant and his family will suffer serious harm to their personal and professional lives if they are made to leave this country on Tuesday next. That harm is by its nature not one that is compensable in damages.

[39] He also referred to Douglas v. Canada [2014] F.C.J. No. 1149,2014 FC 1115 where the Court wrote at para 42:

42 There is consistent authority to the effect that harm to an individual’s personal or professional reputation amounts to irreparable harm. In a previous decision imposing a stay on the Inquiry Committee proceedings, Douglas v. Attorney General (Canada), 203 FC 776 at paras 24-28, Justice Snider accepted that the disciplinary proceedings risked harming the Applicant’s reputation and dignity interests. While the issues in the application and motion before Justice Snider were different, I have reached a similar conclusion.

[40] He also cited Douglas v. A.G. Canada [2013] FC 766 where the Court, held at para 24:

[24] The Applicant alleges that her personal and professional reputation would suffer irreparable harm if the proceedings before the Inquiry Committee are permitted to continue. I observe that the good reputation of an individual is a significant interest, closely connected to the concept of human dignity, underlying all Charter rights (Hill v Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 SCR 1130 at 1175, 1179, 126 DLR (4th) 129).

[25] The present case is similar to Adriaanse et al v Malmo-Levine et al (1998), 1998 8809 (FC), 161 FTR 25 at paras 21-22, [1998] FCJ No 1912 (TD) [Malmo-Levine] and Bennett s' British Columbia (Superintendent of Brokers) (1993), 1993 2057 (BC CA), 77 BCLR (2d) 145. [1993] BCJ No 246 at para 17 (CA) [Bennett]. In Malmo-Levine, the Federal Court stayed a hearing investigating the misconduct of RCMP officers because of the allegations of bias made on judicial review and the harm to the reputations of the officers that would follow if a stay was not granted. In Bennett, the British Columbia Court of Appeal found irreparable harm where the applicants could be called on to testify and their credibility could be challenged in the context of a very public hearing before the Securities Commission, if the proceedings were allowed to continue (see also. Via Rail Canada Inc v. Cairns et al (2000), 261 NR 24 at para 6, 26 Admin LR (3d) 52 (FCA)).

[28] Further, as noted in Smoling v Canada (Minister of National Health and Welfare) et al (1992). 1992 8547 (FC), 56 FTR 297, 8 Admin LR (2d) 285 [Smoling], a person’s professional reputation is deeply implicated in the context of proceedings where a person’s livelihood may be at stake. In Smoling. Justice Rothstein. as he then was, identified irreparable harm in the context of a judicial review of proceedings against a doctor regarding prescriptions written for narcotics. Justice Rothstein stated “1 am satisfied that Dr. Smoling may suffer grave and permanent consequences to his professional career and that he has satisfied the irreparable harm test" (Smoling, above at para 19). In my opinion, this case raises a very similar issue, given the nature of the public inquiry, the nature of the evidence noted above and the consequences to the legal career of the Applicant if the hearing is permitted to continue.

[41] Counsel for the OPP submitted that the Applicant’s speculation that proceeding with the disciplinary hearings may cause damage to his reputation and that dismissal from his employment could cause him irreparable harm, cannot substantiate irreparable harm.

[42] He also submitted that while there may be evidence at the disciplinary hearing that may cause embarrassment to the Applicant, any possible damage to his reputation has already occurred The Notices of Hearing against the Applicant and the particulars of the allegations contained therein are public documents Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 9; Police Services Act, R.S.O. 1990, c. P.l5, s. 83 (I).

[43] He distinguished the facts in Douglas, supra, at paras. 45, 50-51. He submitted that in Douglas, the moving party sought a stay in respect of the admissibility of certain personal and embarrassing photographs. Once admitted into evidence, they would, at a minimum, have been viewed by members of the Inquiry Committee. The irreparable harm would be caused by the dissemination of the photographs during the hearing.

[44] He also submitted that the moving party in Douglas had sought a stay only in respect of the admissibility of the photos. The Applicant here is seeking to stay the entire proceeding.

[45] Counsel for the OPP submitted that if the Applicant's employment is terminated prior to the determination of the underlying application, he can appeal to the Ontario Civilian Police Commission.

[46] He referred to Marler v. Law Society of Upper Canada 2009 6626 (ON SCDC), [2009] OJ No. 654, where the Divisional Court considered granting a stay of Law Society disciplinary proceedings. In refusing the lawyer’s request for a stay, the Court wrote at para 9:

In my view, the applicant has not shown that there will be irreparable harm. He is continuing the practice of law. If, at the end of the discipline hearing he is found guilty of professional misconduct, he has a right to appeal to the Appeal Tribunal. If at the end of the day he is found not guilty, there will have been no harm in any event. If it should transpire that he is found guilty and that he was denied a fair hearing, any efforts that may turn out to have been wasted may be made the subject of a costs award if the circumstances justify it.

Balance of Convenience

[47] Counsel for the Applicant submitted that the balance of convenience rests with the Applicant. Here no request is being made to stay legislation as in Metro Stores or as in RJR. The Applicant is seeking only to temporarily stay a hearing.

[48] He cited Douglas v. A.G. Canada [2013] FC 776 where, in the context of staying an individual hearing, the Court ruled, with respect to balance of convenience, that:

[32] Regulatory bodies have no vested interest in the outcome of any judicial review-' and CJC’ Policies and the Judges Act require the Inquiry Committee to comply with procedural fairness.

[33] In the circumstances, I do not find that the delay in resolving the underlying proceedings is determinative of the balance of convenience. I recognize that harm to the administration of justice may result from unreasonable delay of an inquiry into the behaviour of a judge. In this particular case, there has been a lengthy delay in resolving the application for judicial review, partly attributable to complicated procedural issues raised by a number of parties. With my expectation that there will be an ongoing cooperation by all parties, I am confident that the matter will be concluded in a reasonable length of time.

[34] Finally, staying these proceedings has a direct effect on the Applicant only and does not have wide-reaching consequences. If all else is equal, then the status quo should be preserved pending judicial review and the stay should be granted.

[49] Counsel for the Applicant submitted that in all constitutional cases, the public interest is a "special factor" which must be considered and given appropriate weight. He cited the reasoning of the Supreme Court of Canada in RJR MacDonald 1994 117 (SCC), [1994] 1 S.C.R. 311(SCC) as follows:

D. The Balance of Inconvenience and Public Interest Considerations

62 The third test to be applied in an application for interlocutory relief was described by Beetz J. in Metropolitan Stores at p. 129 as: "a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits". In light of the relatively low threshold of the first test and the difficulties in applying the test of irreparable harm in Charter cases, many interlocutory proceedings will be determined at this stage.

63 The factors which must be considered in assessing the "balance of inconvenience" are numerous and will vary in each individual case. In American Cyanamid, Lord Diplock cautioned, at p. 408, that:

[i]t would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case.

He added, at p. 409, that "there may be many other special factors to be taken into consideration in the particular circumstances of individual cases."

64 The decision in Metropolitan Stores, at p. 149, made clear that in all constitutional cases the public interest is a `special factor' which must be considered in assessing where the balance of convenience lies and which must be "given the weight it should carry." This was the approach properly followed by Blair J. of the General Division of the Ontario Court in Ainsley Financial Corp. v. Ontario Securities Commission (1993), 1993 5552 (ON SC), 14 O.R. (3d) 280, at pp. 303-4:

Interlocutory injunctions involving a challenge to the constitutional validity of legislation or to the authority of a law enforcement agency stand on a different footing than ordinary cases involving claims for such relief as between private litigants. The interests of the public, which the agency is created to protect, must be taken into account and weighed in the balance, along with the interests of the private litigants.

1. The Public Interest

Some general guidelines as to the methods to be used in assessing the balance of inconvenience were elaborated by Beetz J. in Metropolitan Stores. A few additional points may be made. It is the "polycentric" nature of the Charter which requires a consideration of the public interest in determining the balance of convenience: see Jamie Cassels"An Inconvenient Balance: The Injunction as a Charter Remedy", in J. Berryman, ed., Remedies: Issues and Perspectives, 1991, 271, at pp. 301-5. However, the government does not have a monopoly on the public interest. As Cassels points out at p. 303:

While it is of utmost importance to consider the public interest in the balance of convenience, the public interest in Charter litigation is not unequivocal or asymmetrical in the way suggested in Metropolitan Stores. The Attorney General is not the exclusive representative of a monolithic "public" in Charter disputes, nor does the applicant always represent only an individualized claim. Most often, the applicant can also claim to represent one vision of the "public interest". Similarly, the public interest may not always gravitate in favour of enforcement of existing legislation.

It is, we think, appropriate that it be open to both parties in an interlocutory Charter proceeding to rely upon considerations of the public interest. Each party is entitled to make the court aware of the damage it might suffer prior to a decision on the merits. In addition, either the applicant or the respondent may tip the scales of convenience in its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought. "Public interest" includes both the concerns of society generally and the particular interests of identifiable groups.

We would therefore reject an approach which excludes consideration of any harm not directly suffered by a party to the application…

[50] In response to the submission of counsel for the OPP that the strength of the Applicant’s Application for Judicial Review is a relevant criterion under balance of convenience, counsel for the Applicant submitted that he has a good case on the merits. He noted that on the constitutional issues, the OPP association has joined with the Applicant in the Application for Judicial Review.

[51] The OPP Association’s factum on the Judicial Review Application includes the following:

There is merit to the argument that the discipline process created by Part V of the Police Services Act violates the Applicant’s constitutional right to procedural fairness. The statutory process is deeply flawed and does not constitute a fair and independent adjudicative process.

Although the common law principles that require a duty of fairness, independence and freedom from bias may be overridden by statute, legislation is always subject to the constitution. Not all Charter protections may be available in the context of a disciplinary proceeding under Part V of the Police Services Act. Section 11 does not apply to police disciplinary proceedings where an officer does not face a penal consequence such as imprisonment…Disciplinary proceedings are civil not criminal in nature.

Section 7, in contrast, may apply to police discipline. The Supreme Court has left open the possibility that s7 of the Charter may apply to professional disciplinary proceedings. Pearlman v. Law Society (Manitoba) 1991 26 (SCC), 1991 2 SCR 869 at para 30.

Two threshold requirements must be satisfied to engage section 7: first, there must be a deprivation of "life, liberty or security of the person"; and, second, that deprivation must be contrary to the "principles of fundamental justice".

The section 7 "liberty" interest is interpreted broadly and in accordance with the principles and values underlying the Charter as a whole, including human dignity, personal autonomy and choice in matters of fundamental personal importance.

In accordance with this interpretive framework, the majority of the Supreme Court has recognized that liberty extends beyond freedom from physical restraint, and is engaged where "state compulsions or prohibitions affect important and fundamental life choices.”

A person's choice of profession or employment should be recognized as an inherently personal choice striking at the heart of one's dignity and personal autonomy…

…The Supreme Court has recognized a broad range of personal choices that engage the section 7 liberty interest. Although the pursuit of one's profession without unreasonable state interference has not yet been recognized to engage section 7 liberty interests, members of the Supreme Court have recognized the related right of an individual to choose where to live…

The inherently personal choice of where to live… is similar to the inherently personal choice of what profession to pursue; both choices implicate personal values in the ordering of one's private affairs, and both choices may have an impact on other deeply personal matters at the heart of one's dignity and autonomy… If the choice of where to live is a decision that engages section 7, then the choice of what profession to pursue should be too.

The Supreme Court has found that the section 7 "security of the person" interest may be engaged where there is "serious state-imposed psychological stress". The stress must arise directly from the state action or inaction, and the psychological prejudice must be serious.

The fact that the Applicant's ability to pursue his chosen profession will be determined through the Part V discipline process under the PSA, which does not constitute a fair and independent adjudicative process, is something which could, objectively, cause psychological stress sufficient to engage section 7 of the Charter.

[52] Counsel for the OPP argued that the potential factors to consider on an analysis of balance of convenience are numerous, and will vary in each case. He submitted that the public interest is a consideration and that there is a strong public interest in carrying out, with diligence, disciplinary proceedings against a police officer see: Douglas [2014 FC 1115](https://www.canlii.org/en/ca/fct/doc/2014/2014fc1115/2014fc1115.html), [2014] FCJ No1149, at para [49-50]].

[53] He cited Browne v. Ontario (Civilian Commission on Police Services) [2001) OJ. No. 4573 at paras. 66-69 (C.A.), where the Ontario Court of Appeal concluded [at para 67] that the general legislative purpose of the Police Services Act is to increase public confidence in the provision of police services.

[54] He submitted that pursuant to section 73 of the Police Services Act, the Commissioner of the OPP is statutorily obliged to deal "promptly" with public complaints. The public complainant has the statutory right to a prompt hearing.

[55] Counsel for the OPP also submitted that in assessing the balance of convenience, the Court can consider the merits of the underlying application.

[56] Counsel for the OPP submitted that notwithstanding the OPP’s agreement that there is a serious issue to be tried, the Applicant’s likelihood of success on the Application is low.

[57] He submitted that while there are other components to the Application for Judicial Review, the primary issue to be decided is whether or not the prosecution of the Applicant under Part V of the Police Services Act violates sections 7 and 11 (d) of the Charter. There is no jurisprudence to support that position. Existing jurisprudence supports the opposite conclusion. The Supreme Court of Canada confirmed in a trilogy of cases that section 11 (d) of the Charter does not apply to the police discipline process in Ontario see: Cannon v. Canada (Royal Canadian Mounted Police), [1997 6384 (FC)](https://www.canlii.org/en/ca/fct/doc/1997/1997canlii6384/1997canlii6384.html), [1997] F.C.J. No. 1552 at paras. [37-38](https://www.canlii.org/en/ca/fct/doc/1997/1997canlii6384/1997canlii6384.html) (T.D.); Trimm v. Durham Regional Police, [1987 44 (SCC)](https://www.minicounsel.ca/scc/1987/44), [1987] 2 S.C.R. 582 at para. [5](https://www.minicounsel.ca/scc/1987/44); Burnham v. Metro Toronto Police Association [1987 42 (SCC)](https://www.minicounsel.ca/scc/1987/42), [1987] 2 S.C.R. 572 at para. [5](https://www.minicounsel.ca/scc/1987/42); Trumbley v. Toronto (Metro) Police Force, [1987 43 (SCC)](https://www.minicounsel.ca/scc/1987/43), [1987]2 S.C.R. 577 at para. [5]].

[58] Counsel for the OPP also cited Mussani v. College of Physicians and Surgeons et al 2004 48653 (ON CA), 74 OR (3d) 1, a decision of the Ontario Court of Appeal. Blair JA wrote at para 37:

[37] The Supreme Court of Canada has said that s7 of the Charter “is not confined to the penal context” and “can extend beyond the sphere of criminal law, at least where there is “state action which directly engages the justice system and its administration Blencoe v. British Columbia (Human Rights Commission) 2000 SCC 44, [2000] 2 SCR 307 at paras 45-46.

[59] He submitted that in Mussani, the Ontario Court of Appeal has held that Dr. Mussani was trying to protect the right to practice his profession and that there is no constitutional right to practice a profession unfettered by the applicable rules and standards that regulate that profession. Serious disciplinary measures are not prohibited by the Charter. Stigma arising out of disciplinary proceedings does not deprive a person of security of the person.

[60] Counsel for the OPP submitted that in R v. Schmidt [2014] OJ NO 1074, at para 38, although Sharpe JA for the Ontario Court of Appeal did not foreclose the possibility that S7 may evolve to protect certain economic rights, such as a basic minimum level of subsistence, the Court rejected the proposition that s7 protects freedom of contract or the right to engage in the economic activity of one’s choice.

[61] He did not comment on the submission of counsel for the Applicant that his claim goes beyond his right to practice his profession and extends to protection of his reputation and as such is covered by s7 of the Charter.

Application of the 3 Part Test -Conclusion

[62] Part 1 - There is a serious issue to be tried. The Applicant’s Application for Judicial Review is not frivolous or vexatious.

[63] Part 2 - I have considered the submission of counsel for the OPP that the Applicant has failed to establish irreparable harm.

[64] I have considered the submission of counsel for the OPP that the Applicant can only speculate on the outcome of the Disciplinary proceedings. If he is successful, there will be no reputational harm. If he is successful, the Applicant will benefit from being cleared of the allegations being made against him. If he is unsuccessful, then he can appeal to the Ontario Civilian Police Commission. In any event, the damage to his reputation has already occurred. Here the allegations have been in the public domain for some time. Reputational harm and psychological stress has already occurred.

[65] At the same time, I have also considered the reasoning set out, for instance, in Adriaanse v Malmo Levine, Bennett and Smoling, mentioned earlier and authorities to the effect that damage to reputational harm that cannot be subsequently cured constitutes irreparable harm. I accept that further reputational harm could occur if the stay were not granted and the disciplinary proceedings were to go forward before the Application for Judicial Review were to be decided. Any such reputational harm could not be cured later, even by an award of monetary damages.

[66] Part 3 - Balance of Convenience. On balance of convenience, the results in every case must turn on the specific facts in that case.

[67] I have considered the interests of the Applicant, the public complainant, the public, the OPP and the OPP Association.

[68] There is the private interest of the Applicant in a stay to avoid further possible irreparable reputational harm pending the determination of his Charter rights and his rights to procedural fairness.

[69] There is the private interest of the public complainant in having his complaints resolved expeditiously. I note that the reasons of Superintendent McElary-Downer include the following at p13:

Although the public complainant was initially opposed to the adjournment, he can understand it to an extent now that he has heard the argument…The biggest issue the public complainant struggles with is the location of the hearing…

[70] There is the interest of the public in having concerns of public complainants resolved promptly, as required under s 73 of the Police Services Act. It has been over two years since the first Notice of Hearing involving a public complainant was served on the Applicant.

[71] There is the interest of the public involving public confidence in the OPP’s protection of the public, using the disciplinary process.

[72] There is the interest of the OPP in the prompt resolution of internal complaints involving police.

[73] I have considered the likely impact of the stay sought upon those interests. The delay in the hearing being sought will likely be three months or less, depending on when the Divisional Court releases its decision.

[74] I am of the view that a delay of three months or less would be unlikely to seriously undermine public confidence in the OPP disciplinary process.

[75] I have also considered the fact that despite the competing interests set out above, before September 24, 2015, all parties were apparently prepared to agree that the disciplinary proceedings should not commence until after the Application for Judicial Review had been heard and decided.

[76] I have considered the fact that the Judicial Review hearing could have already occurred had all counsel been prepared to make themselves available earlier. Dates were available with the Divisional Court, but counsel for the Association could not be present until December 7, 2015.

[77] I have considered the submission of counsel for the OPP that the merits of the Judicial Review Application are relevant to the determination of the balance of convenience and that the Applicants submissions have little merit.

[78] I have considered the submission of counsel for the Applicant and for the OPP to be made on the Application for Judicial Review.

[79] I have considered, for instance, that counsel for the OPP Association intends to advocate that the disciplinary process here is “deeply flawed” and that section 7 may apply to it.

[80] Counsel for the Applicant and the OPP Association will submit that the principles of fundamental justice in the administrative law context guarantee procedural fairness, including the right to an independent and impartial hearing, the right to know the case to be made against oneself, and the right to answer that case. For s. 7 of the Charter to be satisfied, each of them must be met in substance.

[81] They will submit that discipline proceedings in which the Commissioner is responsible for the investigation, the decision to commence discipline proceedings, the appointment and direction of the prosecutor and where the adjudication of the alleged misconduct issues is by an adjudicator or delegate appointed by the Commissioner, are neither independent nor impartial.

[82] I have considered that both counsel for the Applicant and the OPP Association will submit that this case is not, as the OPP contends, simply about economic interests. They will argue as a matter of constitutional law, that "the value placed on a person's work is more than just a matter of dollars and cents”. They will submit that “the Supreme Court of Canada has consistently held that an individual's employment engages fundamental issues of personal identity and is not solely a pecuniary interest and that the Supreme Court's recent jurisprudence in respect of sections 2(b) and (d) of the Charter has recognized that the ability to assert oneself in the workplace engages human dignity, liberty and autonomy. The Supreme Court has observed, [referring to its section 2(d) jurisprudence], that "[c]learly the arc bends increasingly toward workplace justice."

[83] They will submit that it would be inconsistent with established jurisprudence on the interpretation of the Charter to hold that issues integral to one's employment or profession are of fundamental personal importance and a matter of personal dignity, liberty and autonomy for the purpose of some Charter protections, but not for others where they are merely pecuniary or economic interests.

[84] They will submit that although some provincial Superior Courts have held that section 7 interests of life, liberty and security of the person do not protect "economic interests", including the right to work or practice a profession, other provincial Superior Courts have come to the opposite conclusion [see: Wilson v. British Columbia (Medical Services)].

[85] I have here set out the arguments of the OPP, the Applicant, and the OPP Association on the merits of the Judicial Review Application, only because counsel for the OPP has submitted that the merits of the Application for Judicial Review are so low that that should be a factor in my assessment of the balance of convenience. While I accept that in some cases an assessment of the merits could affect an assessment of the risks associated with granting or refusing a stay, apart from on part 1 of the test-serious issue to be tried, an assessment of the merits of the Judicial Review Application has not been a significant factor in reaching my conclusions on this stay application.

Summary of Conclusions

[86] Here, there is a serious issue to be tried. The Applicant could be irreparably harmed if the stay were not granted. The balance of convenience in the unique circumstances here is in favour of the short stay requested, given the history of the proceedings to date, including the lengthy delay that prior to September 24, 2015 was with the consent of the OPP, given the scheduled hearing of the Application for Judicial Review on December 7 of this year, and given the other factors mentioned earlier.

Disposition

[87] The stay is granted until after the Application for Judicial Review has been heard and decided.

[88] Costs of the motion for a stay of the police discipline proceedings are reserved to the panel of this Court hearing the Application for Judicial Review.

________________________ M.A. Sanderson J.

Released: November 27, 2015

CITATION: Amormino v. Police Services Board (OPP), 2015 ONSC 7165 DIVISIONAL COURT FILE NO.: 551/14 DATE: 20151127

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

DETECTIVE CONSTABLE SALVATORE AMORMINO (OPP) Applicant

– and –

POLICE SERVICES BOARD (OPP), SUPERINTENDENT ROBIN D. MCELARY-DOWNER (FORCE ADJUDICATOR-OPP), COMMISSIONER OF PROVINCIAL POLICE (OPP) J.V.M. (VINCE) HAWKES, MINISTER OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, ATTORNEY GENERAL OF ONTARIO, OPP ASSOCIATION (KARL WALSH) Respondents

REASONS FOR DECISION

M.A. Sanderson J.

Released: November 27, 2015